Response to comments

I have received some comments and the time has come to address some of them. Remember: this is not legal advice.

C.H. wrote with the following questions. “Do Medicaid rules require that group counseling services provided to special education students in schools be given in groups of 6 students or less? Do these rules vary from state to state? If Medicaid rules require small group counseling, does this conflict with Least Restrictive Environment rules that children be served in regular classrooms when appropriate?” Typically, Medicaid and education are fiefs alone. Although we know well that the two do meet and should be better coordinated, education rules would likely apply to a school-provided counseling service. Each state will have different rules. As to counseling and LRE, my thought is that counseling is not something inherently amenable to the concept of least restrictive environment. Counseling would seem to be unlike academic instruction or social activities that are open to all or required of all. The question might be whether the counseling is delivered in the right environment, but without the added layer of LRE.

Regarding the entry for Section 403(b) employee benefits plans, Kristine asks “Are you interpreting this regulation to mean that if a teacher complies with the election provisions, no additional tax is due?” Sorry, Kristine, I am not going to touch that one. You will need to consult tax experts and review the IRS guidance. 

Back to Medicaid and special education funding, an anonymous commenter asks “Is there a site where we can check how much our school district will lose each year because of these changes?” Not to my knowledge.  The actual loss will depend on a number of factors, such as how many students participate in medical assistance and whose parents permit the district to bill and how aggressive the district is in claiming medical assistance money.  In my experience, some parents will not permit the district to access such funds and some district really do not put much effort into securing the funds. Because of these factors, even taking the “savings” estimated by CMS as a per pupil amount would likely be wildly inaccurate because of the many factors. I suggest you contact the person in charge of the district’s medical assistance related matters and or the district’s business manager. 

Finally, suburbanmom asks, “Who do I contact if I think Title IX is not being enforced?” There are a number of places to turn. You may want to contact your school’s Title IX coordinator. You may also contact your state or the federal departments of education. This is a link to the federal DOE’s Office for Civil Rights, which enforces Title IX, among other laws. 

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.

New proposed federal rule will take away Medicaid support for special education services

On Friday, September 7, 2007 the federal Department of Health and Human Services (“HHS”) announced its proposed rule change to eliminate Medicaid reimbursement to schools providing certain administrative services and transportation.  The proposal is lengthy, but as the summary states:

under the proposed rule, Federal Medicaid payments would no longer be available for administrative activities performed by school employees or contractors, or anyone under the control of a public or private educational institution, and transportation from home to school and back for school-aged children with an Individualized Education Program (IEP) or an Individualized Family Services Plan (IFSP) established pursuant to the Individuals with Disabilities Education Act (IDEA).

The proposal rule would not affect federal reimbursement for direct medical services such as speech and physical therapy. 

Regarding transportation, HHS states “[t]ransportation from home to school and back is not properly characterized as transportation to or from a medical provider.” “School-age children, including children with an IEP or IFSP,” says HHS, “are transported from home to school primarily to receive an education, not to receive direct medical services.” Yet schools are required to provide medical services as a related service and, indeed, HHS will reimburse for PT, Speech, etc. provided at the school. Under the proposed rule, HHS will also reimburse transportation from school to a direct medical service provider - even if it is for the same services as provided in the school (this later scenario, however, would probably violate anti-segregation requirements). But ignoring HHS’s own funding and intra-federal policy inconsistencies, the reality is that most children receiving these reimbursable medical services receive them only at school. Transportation, for them, is equally essential for both education and the reimbursable services. No doubt this is why reimbursement for transportation has been permitted.

HHS’s justification for eliminating these reimbursements is that the Department of Education via the IDEA already ponies up the funds, so HHS should not pay. “The IDEA authorizes funding through the U.S. Department of Education (not Medicaid) for special education and related services for children with disabilities. . .” HHS also says “[s]tates receive Federal aid under IDEA to assist public schools in delivering mandated services in pursuit of a free appropriate public education. . . . Schools must perform these activities pursuant to education requirements, even in the absence of Medicaid payment. . . .” Although public schools must indeed provide the services, HHS and incoherent federal policies cynically worsen the already hollow federal promise to fully fund the IDEA special education mandate.

According to the notice, “[t]he proposed rule is estimated to reduce Federal Medicaid outlays by $635 million in FY 2009 and by $3.6 billion over the first five years (FY 2009-2013).”   HHS explains that “the estimated annual Federal savings under this proposed rule is only about one eighth of one percent of total annual spending on elementary and secondary schools (in 2004 total elementary and secondary spending was $453 billion according to the Statistical Abstract of the United States. . . .” Especially compared to other fully-funded federal initiatives  (or even an Alaskan bridge or two), this is but a pittance, even more so per child. But it is a pittance taken, ultimately, from needy children and who have always been, and still are, the poorest of the poor.

Elimination of federal financial support to any degree on grounds that another agency is supposed to pay is bad policy and, in the absence of proper and full funding of the special education mandate, is disingenuous.  It is illustrative of the penurious federal attitude toward the nation’s special needs population.  Such a rule change simply should not occur without concomitant IDEA funding increases.

If nothing else, HHS’s justifications demonstrate a profound need to rationalize the federal mandates for special needs children (education, medical, health and welfare, etc.) and to finally fulfill the so-far phantom federal promise to fully fund the special education mandate, which, admittedly, is not HHS’s concern.  But it is, after all, when IDEA 2004 was passed, the federal government's promise, again, to fully fund (Cong. Rec. S11657-658 (Nov. 19, 2004), among many other statements) the federal share of special education (which is only 40 percent of the total cost).  Regardless whether this agency or that agency is supposed to disburse funds, In the end, special needs children bear the cost of the broken promise.

HHS will accept comments regarding the proposed rule change, which may be submitted, among other means, electronically. More information on submitting comments is available in the HHS notice.

OSEP letters January - March 2007

In Saturday’s Federal Register, the U.S. Department of Education published its quarterly listing of letters and other documents of interest regarding Department interpretations of the Individuals With Disabilities Education Act. The letters are from January through March, 2007. The letters should be available at this part of the Department’s website, although at the moment the site is current only through 2006.

Included in the list is a letter addressing criteria to determine whether a speech and language impairment adversely affects a child's educational performance as well as how a school may respond when speech sessions are missed because of student or provider absence, and an explanation of the requirements governing the continuum of alternative placements. All in one letter. 

Other issues addressed include Medicaid reimbursement; child find for students enrolled in private schools; evaluation for specific learning disability; Part C to Part B transition; and parental consent.

Hopefully, the letters will be available freely on the web soon as there seems a wide-range of interesting issues covered. If anyone has a link to current public domain web documents, please provide it.