December 23, 2002
Richard Strauss, Director
Division of Financial Management, FSQG, CMSO
Center for Medicare & Medicaid Services
Dear Mr. Strauss:
Thank you for providing The Council of Chief State School
Officers (CCSSO) with the opportunity to comment on the Draft Medicaid
School-Based Administrative Claiming Guide. CCSSO is a nonprofit
organization composed of public officials who head departments of elementary and
secondary education in the states, the
While we commend the Center for Medicare and Medicaid
Services (CMS) for its efforts to standardize the administrative claiming
process, the policies proposed in the Guide
would dramatically reduce the medical services that children receive.
Implementation of the proposed guidelines would also severely decrease
reimbursements to schools across the country that provide administrative
outreach services to children that increase access to Medicaid services. In
addition to our objections to the intent of the Guide, we also have reservations
about the process used to solicit comments, the brief timeline for
implementation, the content of the regulations, and the legal justification for
many of the new policy proposals.
As you know, the country’s economic situation continues
to decline, leaving many more families to cope with unemployment and the loss of
health care benefits. Now, more than ever, children are in need of the medical
services that Medicaid can provide. And once again, schools will be there to
reach out to eligible children, inform them and their families about the
program, assist in the application process, and provide or refer them for
necessary medical attention. In fact, in September the U.S. Census reported that
the ranks of the uninsured have grown by 1.4 million. The President’s response
to this crisis included advocating for an expansion of eligibility for
government-sponsored programs such as Medicaid and the state-administered
Children's Health Insurance Program. The intent of the new Administrative
Claiming Guide appears to directly contradict the President’s
desire to reach out to eligible children and families to provide necessary
health services to those in need. It is now more important than ever that schools engage in outreach activities to assist these efforts.
CCSSO has joined with other members of the education community to produce a detailed response to the guidelines that will be sent to you under separate cover. In addition to those comments, below are our concerns about the Draft Guide that are critical to state departments of education.
Public Comment Process
The members of our organization are dismayed by the deadline for comment submissions. As you are aware, the documents were circulated on November 21, the deadline for comment is December 23, and the effective date is already set for January 1, 2003. First, the schedule for review does not provide enough time for thoughtful review of the Guide. Thirty days is simply not sufficient. The timing of the release is also highly suspect and problematic. Our country is in the midst of numerous transitions at the federal, state, and local level. Newly-elected members of congress, governors, school chiefs, and state legislators who will be taking office the first week in January, should be allowed to participate in the comment process. After all, these newly-elected officials will oversee Medicaid administrative reimbursements for the next several years. In order for the process to work properly, it is essential to solicit and consider the advice of all stakeholders.
CCSSO is also troubled by the short eight-day review period scheduled by CMS. After the last round of comments in 2000, it took almost two years for CMS to review and publicly respond to the education community’s comments. It will be impossible for CMS to thoroughly and thoughtfully review public comments in less than eight days. The timing is particularly problematic since the eight-day period includes the Christmas vacation for many federal employees. By setting the effective date for January, there is no time to incorporate changes in the Guide. We are forced to question whether CMS has any intention of considering comments, making changes, or improving the Guide.
Because of the abbreviated comment period, we must clarify that our comments in this document are limited to the issues we were able to identify to date. As we continue to learn how this new version will impact schools, we will compile additional comments and forward them to you.
CCSSO Recommendation: We recommend that CMS postpone the comment process by a minimum of 30 days so that all affected parties are afforded the opportunity to comment. We also recommend that CMS take additional time after the close of the comment period to thoughtfully review and address the concerns raised. Lastly, we recommend that you refrain from publishing a final Guide until you have first published the draft in the Federal Register for public comment.
States that have been participating in the administrative claiming program are expected to come into compliance with the new guidelines by September 2003. Our member states have informed us that this timetable is unrealistic. Although CMS is providing states with nine months to come into compliance, school staff is unavailable for training from May to September. Thus, there are really only five months for states to meet this deadline. In consulting with Louisiana, which has just implemented its program, we were informed that it took them eight months on an expedited track to obtain all the CMS approvals and finalize their program. Once the policy is approved by the CMS, states must complete a long list of internal tasks to implement the policy and assure its integrity, including publishing it to school district providers and other members of the public, and to obtain comments, as CMS requires. Those impacted by a new or amended program, both at the state and local level, must be educated and trained, contracts revised, or RFPs written and released, and school districts need to have time to startup or re-engineer their systems. When you consider the number of states that may be seeking CMS approvals for new or revised policies and the demands that this will place on CMS staff, neither states nor your agency will have the capacity to meet the compliance deadline or assure that quality programs are being approved.
Recommendation: We recommend that you provide school systems with at least one full year from the date of the Guide’s final publication to make preparations for compliance. Considering that many of the currently operating reimbursement systems were designed with relatively recent CMS consultation and approval, state agencies and schools were not prepared for the sudden and significant changes in CMS policy. Accordingly, they deserve sufficient time to re-write, publish, and receive public comments, provide fair notice to their providers, and otherwise adapt their operations.
Content and New Policy
Part IV, Section 8: Enhanced FFP Rates - Skilled Professional Medical Personnel (SPMP)
As we solicited comments from our members, the greatest
area of concern was the proposed reduction in reimbursement rates for skilled
professional medical personnel from 75% to 50% as announced in the State
Medicaid Director’s letter of November 21, 2002 and reiterated in the draft Guide.
The Guide states that CMS has determined that the “performance of these activities does not require the professional education and training necessary to the claiming of SPMP costs.” Not only does this proposal discriminate against SPMPs who work in a school setting, singling them out from other SPMPs with the same education and licensure, but it also directly violates current law which specifically entitles them to an enhanced reimbursement for certain activities administered under specific conditions.
The law makes no demand on providers to justify the activities of SPMPs as “necessary,” yet the Guide is creating a new standard of necessity just for school settings. There are many administrative services provided in a school setting that are legitimate uses of an SPMP’s advanced training, and those activities must be eligible for enhanced reimbursement. As an example, consider a situation where a physical therapist is in charge of the Medicaid administrative outreach program in her school district and uses her expertise to write and design brochures that provide information to families about the program. In this scenario, the expertise of the physical therapist is clearly not interchangeable with that of a typical school office employee. The enhanced rate is warranted; it is allowable through statutory and regulatory provisions for all SPMPs, and it should be reflected in any guidance given to school systems.
There is speculation among our membership that CMS arrived at this position without understanding the complexity of health care and services provided in schools. There are practical as well as legal reasons why SPMPs are necessary to properly carry out some administrative functions. To arbitrarily claim that the education, skills, and expertise of SPMPs are never necessary for any administrative activities is to misunderstand the value of SPMPs in the school setting. It is true that not all activities completed by all SPMPs warrant enhanced FFP, but it is our contention that well-rewritten policy can make clear those activities and personnel for whom the higher match applies.
States expect to lose millions of dollars in reimbursement from this proposed new policy. Although the loss of funds alone is not a justification for changing Medicaid policy, it is important to take into consideration the effect the policy will have on the entire system of school-based Medicaid services. For example, Vermont will lose 40% of the money it receives under administrative claiming from this single policy change, not to mention the reimbursements it will lose from other changes in the guide. Vermont has been participating in this program for ten years, and the reimbursement stream plays an integral role in their ability to provide services to children. Such a dramatic reduction in funds will undoubtedly force Vermont to question its participation in the program. They have spent years trying to reach 100% enrollment of Medicaid eligible students, and just as that day draws near, the funding for their efforts will be taken away.
To further complicate the matter for Vermont, implementation of this directive will cause them to lose their funding mid-year if the SPMP change goes into effect on January 1, 2003. However, Vermont is still operating under a budget from last May. Their budget anticipated $400,000 in reimbursements that would suddenly no longer be available. Because the directive was issued unexpectedly and implemented so quickly, schools did not have an opportunity to account for the reduction in reimbursements. States have not been provided adequate notice, and many schools would lose the reimbursement for services being provided by health professionals in January because insufficient time was given to plan for this change.
CCSSO Recommendation: We recommend that you retract this new policy and acknowledge the statutory and regulatory conditions for reimbursement at the enhanced rate for SPMPs. We also recommend that you work with schools to better understand
those activities provided by SPMPs that reflect their training. Should you choose to implement policy that discriminates against SPMPs working in the field of education, we recommend that you extend the effective date to September 2003, at the earliest, in order to afford states and schools the opportunity to plan appropriately for this change.
The new guidelines require schools to be direct healthcare service providers in order for them to claim administrative reimbursements. Once again, we believe this policy cannot be substantiated by the Medicaid statute or regulations, and we also believe it violates the stated intent of the program to inform and enroll as many eligible participants as possible.
We agree that any school district that provides IEP services is providing direct health care services reimbursable by the Medicaid Program. Schools that choose not to enroll as Medicaid providers and claim for these services could be losing precious FFP to which they have been entitled since 1988. But to mandate that those districts enroll and seek reimbursement seems to be unreasonable at best. It is our hope that State Medicaid Agencies will continue to enjoy the flexibility to determine their own state plans for non-mandated services. We are confident that any school district, even those that are small or rural, will choose to solicit the assistance of their State Medicaid Agency for enrollment information when they have the resources and capacity to meet the requirements of enrolled providers for reimbursement under Medicaid. In the meantime, many have chosen to benefit from the reimbursement for Medicaid Outreach administrative costs.
The new guidelines require schools to verify that each referral is made to a participating Medicaid provider. There was a unanimous response from our members that they do not have the administrative capacity to meet this new requirement. They also note that this is not an appropriate function for school systems and personnel. Providers in the Medicaid program change frequently, and any directories that are available are quickly out of date. The section does acknowledge, “It is not always administratively efficient for the schools…” to meet this requirement. Our members agree. Suggesting a “provider participation rate” with a complex calculation methodology creates a burden that exceeds the benefits schools realize through participation in this program.
Recommendation: CCSSO recommends that you strike this new requirement. Instead of placing an additional requirement on schools to verify or develop a mechanism/methodology to follow every child for every service he or she may need, we recommend that your agency continue to support increasing access to health care for children and families, improvement in coordination between and among state and local agencies who see potential and enrolled Medicaid beneficiaries, and whenever appropriate, refer to those Medicaid providers.
CMS has decided that schools cannot be reimbursed under Administrative Claiming for the preparation of IEPs because there is no provision in legislation to make the education agencies secondary to Medicaid. However, the same argument could be made for why schools should be allowed to claim reimbursement. The statute and regulations are silent on this point. The intent of the applicable statutory and regulatory provisions in this area is clear: to allow the State Medicaid Agency to have the flexibility to develop and implement their state plan (always approved by CMS) for direct services provided in the school setting and also to delegate Medicaid outreach efforts to schools. By ignoring legislative intent, it appears that this is simply an arbitrary position of CMS to prevent schools from accessing federal funds to which they have a legitimate claim.
Requiring staff to provide narrative in addition to checking detailed time study codes is an example of a superfluous and time-consuming step that unnecessarily complicates the process. This requirement places an additional bureaucratic burden on staff, and it does nothing to improve the services that are provided to students. Well-written and designed time studies are conducted every day in a variety of settings, including schools, resulting in proper coding. The federal guide for procedures to follow when isolating costs of administrative outreach, the OMB A-87 Circular, contains nothing that justifies this requirement.
Recommendation: CCSSO recommends that you eliminate the requirement that a narrative be written by time study participants.
Section J addresses Medicaid’s status as the “payor of last resort” and asserts that a school will not be reimbursed if a third party is liable for that expense. We are aware of no third party payors in the country other than CMS that pay for the administrative costs of Medicaid Outreach. We are not clear why this section, and several others that are related only to direct care services, are included in a guide to states for designing and implementing an administrative outreach program. Nevertheless, we believe the intent of the 1988 amendment to the Medicaid statute was to exempt schools providing IEP services to Medicaid pupils from this requirement. Since that time, we acknowledge that health care costs have risen, and the debate on this and related issues has intensified. But we do not believe issuance of this Guide resolves an extremely complex issue that is created by two significant federal statutes.
Recommendation: Encourage a national dialogue on the issues of third party liability and Free Care, and let the solution begin with an agreement between the U.S. Department of Education, which oversees IDEA, and the U.S. Department of Health and Human Services.
In summary, many of the provisions of this draft of the Guide are requirements that school districts simply do not have the capacity to meet. Because schools are first and foremost educational institutions, they do not operate in the same manner as hospitals. However, school nurses and other licensed, registered, or certified medical personnel in schools have the same or more education than their counterparts in other settings, but that does not mean the quality of their work is less than that delivered by their peers. They may not operate in the same manner as clinicians in doctors’ offices or clinics, but they are still providing, in many cases, care to pupils with very complex healthcare needs.
A reoccurring theme among our members is that the Guide was written by health policy professionals who do not understand the differences between health care delivery in systems different from physician offices, managed care organizations, hospitals and nursing homes. We appreciate that you are now seeking the advice of the education community, and we hope that you will take the time to incorporate the community’s recommendations in any final guidance.
Sincerely,
Patricia Sullivan
Deputy Executive Director