October 4, 2007
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-2261-P
P.O. Box 8018
Baltimore, MD 21244-8018
To Whom It May Concern:
Reference : File code CMS-2261-P
The Child Care Association of Illinois is submitting the following comments on the Proposed Rule for coverage for Rehabilitative Services under the Medicaid program, as published in the Federal Register August 13, 2007.
Impact on Poor
Children
The proposed amendments by CMS to protect Medicaid beneficiaries would in effect limit access to Medicaid for currently eligible poor children and we see it as an effort to cut vital federal funds to states by reducing funding for children. We ask that states not be penalized for stepping up to meet the needs of the nation’s poor children and families. According to the Medicaid regulations which identifies mandatory eligibility groups, “states have some discretion in determining which groups their Medicaid programs will cover and the financial criteria for Medicaid eligibility. To be eligible for Federal funds, states are required to provide Medicaid coverage for most people who get Federally assisted income maintenance payments, as well as for related groups not getting cash payments. Some examples of the mandatory Medicaid eligibility groups include the following:
q Limited income families with children, as described in Section 1931 of the Social Security Act, who meet certain of the eligibility requirements in the state’s Aid to Families with Dependent Children (AFDC) in effect on July 16, 1996;
q
Recipients of adoption assistance and foster care
under Title IV-E of the Social Security Act.”
While we welcome rule clarifications and your commitment to protect the fiscal integrity of the Medicaid program, many of these rule changes could be used to narrow or potentially eliminate the very children it was written to help rehabilitate as identified in the mandatory eligibility groups. We strongly recommend that CMS work with child welfare providers, the states, and other federal agencies to create a system of fiscal accountability, which supports best practice for children with mental health needs and allows for the provision the most appropriate Medicaid rehabilitative services in the least restrictive setting.
To protect the nation’s poor children the Child Care Association of Illinois asks for the following considerations.
Importance of Rehabilitative Services for Children in Foster Care and Child Care Institutions
Children that enter the foster care system or are placed in child care institutions under the federal requirements applicable to Title IV-E are at an extremely high risk for both physical and mental health issues as a result of biological factors and the maltreatment they were exposed to at home. 80% of children in out of home care meet the clinical criteria for behavioral problems or psychiatric diagnosis.
When children are removed from their home base and placed in state custody, child welfare agencies funded through Title IV-E are responsible for meeting their health and mental health needs, and virtually all children in foster care and child care institutions are eligible for and obtain health care services through Medicaid.
Funding for those most applicable Rehabilitative services have increasingly been accessed by states – especially for children with mental illness – for two reasons. The increase was promoted in part by the recommendations from the President’s New Freedom Commission on Mental Health, issued in 2003, to improve the nation’s mental health system. Secondly, the Children’s Federal Services Review (CFSR) has identified mental health services as the major area of deficiency that is not being met within the child welfare system funded with Title IV-E.
II. PROVISIONS OF THE PROPOSED RULE
In Section 440.130(d)(3), it adds a requirement that covered rehabilitative services for each individual must be identified in a written rehabilitation plan.
Concerns:
We are concerned about the extent of the requirements that must be included in the written rehabilitation plan. This would place an administrative burden on Medicaid providers in order to address the overall extent of all requirements.
The plan requirement to indicate the anticipated providers of the services and the extent to which the services may be available from alternate providers of the same service would be administratively burdensome.
Recommendation: Substitute for the requirement that the plan list the potential providers of the same service requirement that the plan include an assurance that the individual received this information to the extent the service planning team is aware of all existing providers.
2. Limitations for Rehabilitative Services – Intrinsic Elements
Under this section it explicitly states that rehabilitation does not include services “furnished through a non medical program as either a benefit or administrative activity including services that are intrinsic to elements of programs other than Medicaid, such as foster care, child welfare, education, child care ….. juvenile justice. (Proposed Section 441.45 (b) (1) through (b) (8). The proposed rule seems grounded in the assumption that rehabilitation services serve as “intrinsic elements” within a series of other federally funded programs, and that states are duplicating their funding streams in seeking support from Medicaid for these services. This leaves the questions of what is considered to be “intrinsic to” a program. How would that be defined?
Concern: Congress explicitly rejected adopting an “intrinsic to” test in regards to Medicaid rehabilitative services when debating and finalizing the Deficit Reduction Act, so the authority to make this application to Medicaid Rehabilitation Services would need to be done through change in the law and not through regulation.
Concern: While it is helpful to clarify what is covered by Medicaid and what is covered by other federal programs, the proposed regulation and its “intrinsic to” test does not properly consider the child welfare system funded under Title IV-E and the application of Medicaid programs to children’s services. The child welfare system is required to ensure that the children in their care get the services they need, including medical and mental health. The results of the CFSR’s of the 50 states indicate that state child welfare agencies are already struggling to meet these needs largely because the mental health system as reported by the President’s New Freedom Commission is “fragmented and in disarray”.
If the proposed “intrinsic to” test is applied to child welfare and Medicaid resulting in the requirement that the services needed by the child in care would come only from the child welfare system, this would eliminate critical mental health services that the CFSR’s have even identified. If Medicaid is not there to assist, what will be done to infuse greater dollars into the Mental Health system so that the services that are needed are being provided and available?
Recommendation: We would propose the removal of the reference “intrinsic to” in the rule and use the basic definitions from the other federal programs as the guideline for determining the coverage of services. In the definition for Title IV-E it specifically provides for payment for a child placed in a foster family home or child care institution and that these children are Medicaid eligible and therefore eligible for Medicaid defined services. As stated by the Code of Federal Regulations, Title 45, Chapter XIII, Part 1355.20, Title IV-E covers the cost of food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child and reasonable travel for a child’s visitation with family or other caretakers. For child care institutions it must also “include the reasonable costs of administration and operation of such institutions as are necessarily required to provide the items described in the preceding sentence”.
The Code of Federal Regulations at 1356.60 Fiscal Requirements (Title IV-E) specifically prohibit States from claiming Title IV-E federal financial participation (FFP) for medical or rehabilitative services as “Allowable administrative costs do not include the costs of social services provided to the child, the child’s family or foster family which provide counseling or treatment to ameliorate or remedy personal problems, behaviors or home conditions.”
Mental health services are a critical portion of the services that need to be made available to children in foster care and child care institutions but are not covered under Title IV-E and should be covered by Medicaid if they meet the Medicaid regulations.
2. Limitations of Rehabilitative Services – Provider Choice
Section 441.45 (b) (1) emphasizes language that requires that “the individual must have free choice of providers”.
Concern: The clients in the child welfare system are children and adolescents who are wards of the state and do not choose these services amongst a list of available providers. For those children, the choice should include birth parent, the child who is old enough, and legal guardian.
Section 441.45(b)(2) speaks to a distinction between the
terms “habilitation” and “rehabilitation”.
Rehabilitation refers to measures used to restore individuals to their
best functional levels. It states that individuals receiving rehabilitation
services must have had the capability to perform an activity in the past rather
than to actually have performed the activity.
Section 441.45(a)(2) states that rehabilitative services
claimed for Medicaid payment are only those provided for the maximum reduction
of physical or mental disability and restoration of the individual to the best
possible functional level.
Concern:
These sections of the proposed rule as with numerous other sections of
the proposed rules have language that is geared more for adults than for
children. In children’s services, we
have to be sensitive to the developmental levels of children. In such cases
rehabilitative services are geared to move children to expected levels they
have not reached. Rehabilitative
services should be used to achieve these type of functional goals for
children. Such rehabilitative steps are
not geared to restoring a child to a previous level of functioning as with an
adult.
Recommendation:
Language should be included that references rehabilitative services are
also used to achieve an “expected level” of development for children.
Exclusion of Services Provided to Residents of an
Institution for Mental Disease
In section 441.45 (b) (4) it is proposed to exclude payment for services that are provided to residents of an institution for mental disease (IMD) including residents of a community residential treatment facility of over 16 beds, that is primarily engaged in providing diagnosis, treatment or care to person with mental illness, that does not meet the requirements at Section 440.160.
Concern: It appears that language here is more readily applicable to the adult population in determining what is an IMD. In the child welfare system, funding is provided through Title IV-E to child care institutions as referenced in 45 CFR Chapter 13 Part 1355 and 1356 and, although the interchange of wording used when speaking about them may at times include residential treatment facility, they are not licensed as a residential treatment facility within the child welfare system. Child welfare programs are licensed as child care institutions per the language of the IV-E federally funded program and not as psychiatric under 21 residential treatment facilities. Title IV-E pays for room and board costs for the placement of children in foster family homes or child care institutions.
Recommendation: According to the definitions for Title IV-E under the Social Security Act (45 CFR Chapter 13 Part 1356) for foster care and child care institutions, these settings would be allowable for Medicaid services if the state licensing provisions (Title 89: Social Services, Chapter III, Dept. of Children and Family Services, Subchapter e: Requirements for Licensure, Part 404) are so established within a state and the services provided meet the definitions for Medicaid rehabilitative services. The inherent intent of the child care institution is to improve the level of functioning of the child so that they would be moved to a less restrictive setting so this would meet the definitions for rehabilitative services.
Any child welfare program licensed as a child care
institution should not be included in the language of a community residential
treatment facility referenced in section 441.45 (b) (4). The reference to an
IMD should not apply to child care institutions as defined by state licensing
rule.
Also under section 440.130(d)(5), it is proposed that rehabilitative services may be provided in a facility, home or other setting.
Recommendation: Child care institutions should be included as an example of one of these settings. Inpatient is associated with a psychiatric facility and child care institutions do not meet that definition according to licensing regulations of the state (Title 89: Social Services, Chapter III, Dept. of Children and Family Services, Subchapter e: Requirements for Licensure, Part 404) and should not meet that definition in order to provide a level of care needed in a community based setting, but not within the inpatient setting of a hospital. It is agreed that rehabilitative services do not include room and board in an institutional setting as that is paid through other federal funding in the child welfare system such as Title IV-E. Rehabilitative services provided within the child care institution setting should be eligible for Medicaid if they meet the definitions.
Thank you for the opportunity to comment on the proposed regulation.
Sincerely,
Margaret M. Berglind
President/CEO
Child Care Association of Illinois
413 West Monroe St.
Springfield, Illinois 62704
217-528-4409