Medicaid reimbursement rule is now final

Today the Centers for Medicare and Medicaid Services ("CMS") published its final rule eliminating certain reimbursement to public schools.  The rule takes away reimbursement to schools providing transportation and administrative services to Medicaid eligible children with disabilities.  The final rule takes effect on February 28, 2008. 

I previously commented on the proposed rule change here and here.

The CMS received 1,240 public comments regarding the rule change, but found it should adopt the rule without any change.   Those comments, and CMS's response to them, reinforce what I previously said: that federal funding for special needs children needs to be rationalized.  The CMS response to comments demonstrate the lack of ultimate responsibility when federal funding is viewed as an agency-limited activity rather than a national need.

The CMS writes, "[t]he need for schools to obtain additional funding in itself does not justify continued Federal Medicaid reimbursement."  This and similar responses to comments shows that each agency will rightly limit itself to its statutory authority (we can question, of course, its interpretation of that statue).   The comments highlighting the federal failure to live up to its promised 40 percent special education funding, and the CMS responses, show that only Congress, which makes the promise and is authorized to allocate the money, is the only responsible party for this funding mess.

The MLB steroids report, imported lead-containing products, and education

I have never knowingly used anabolic steroids. Anyone seeing me during my long-past sporting days (let alone now) would confirm that nothing in my performance ever even suggested I did. I have, however, handled imported products containing lead, most recently my half-working Christmas lights.  One did nothing for me; the other remains to be known. But the presence of both substances are, in odd ways, connected to public education (if not to each other).

MLB issued its long awaited report confirming what pundits have longer said: some players have used anabolic steroids and MLB did not do much about it. (Click here for one of many news reports about the report.) The Pennsylvania legislature and the public schools, at least, did not take the head-in-the-sand approach but were out in front of the curve on this one.

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School construction and mandate waivers

On November 21, 2007, the Pennsylvania Supreme Court in Mechanical Contractors Association of Eastern Pennsylvania, Inc. v. Commonwealth, et al., ruled that public schools may seek a waiver of the multi-prime requirement for construction projects. 

In the past, schools undertaking construction projects had to bid the projects to at least four basic prime contractors - a general contractor, a mechanical contractor, an electrical contractor, and a plumbing contractor.  In the experience of many, that requirement led to higher construction costs and greater claims and lawsuits against schools.  Now, schools can attempt to avoid these problems and expenses by applying for a waiver of the multi-prime requirement from the Department of Education.  The Department must decide, however, whether to grant the waiver. 

Thanks to Ron Williams, Co-Chair of the Fox, Rothschild construction law group for this update.  Contract Ron, or Brian Subers, the other Co-Chair of the construction law group, about construction related legal issues.