In addition
to adding new requirements and restrictions, the comprehensive new regulations
restate long-held CMS policy regarding rehabilitation services. Restated
policies include:
• Rehabilitation services can be furnished in any setting.
• Rehabilitation services
are to be recommended by a licensed health care professional and designed
to lead to
the goal of maximum reduction of physical or mental disability
and restoration to best possible functional level
• The key factor in determining
whether a service can be covered is, as under prior policy, its purpose.
Thus, services
that may appear recreational or social can be reimbursed if
they are part of a plan of care to meet a rehabilitation goal.
• Job training, academic
education and room-and-board costs are not included (although certain
job-related
and education-related
rehabilitation services are covered).
• Services to individuals
residing in a public institution (such as jail, prison or detention center)
are not reimbursable.
• States must ensure that
rehabilitation services meet requirements for statewideness, comparability
and freedom of
choice.
The proposed
rule also clarifies that rehabilitation services must focus on the ability
to perform a function, regardless of whether the individual performed that
function in the past (this is particularly relevant for children but also
distinguishes rehabilitation services for people with mental illnesses from
habilitation services for people with developmental disabilities).
Some New
Policies Are Consumer-Centered, Others Present Problems
New
policy in the regulations would require active participation by the individual
or
parent of a child (and individuals of the consumer’s choosing) in setting
recovery goals and in developing, reviewing and modifying the services plan.
CMS recommends a person-centered planning process.
Another important
new provision would require periodic (at least annual) re-evaluation of rehabilitation
plans with the consumer to determine whether goals are being met. If not,
the plan and services must be revised.
However,
some significant new policy statements in these proposed rules are not entirely
clear and are even problematic.
• Recent
CMS policy regarding payment methodology is reinforced. The rule specifically
excludes the option of paying
for therapeutic foster care (or similar programs, such as ACT)
through a single daily rate, case rate or similar payment to the provider.
Instead,
individuals in these programs can receive all covered rehabilitation
services, but each service must be billed separately, requiring detailed
accounting
by all providers.
• To qualify for reimbursement,
therapeutic foster parents must be defined as providers under the
state plan. Some therapeutic
foster care activities are specifically not covered under this
regulation, including provider recruitment, foster-parent training and
other services “if
they are the responsibility of the foster care system.” The regulation
is silent about how these restrictions apply if the child is not
in foster care.
A
second problematic part of the new rule prohibits federal payment for services
that
CMS deems “intrinsic elements” of other programs. The list of programs included
under this rule includes foster care, child welfare, education, child care,
vocational and prevocational training programs, housing, parole and probation,
juvenile justice and public guardianship. Individuals in these programs would
remain eligible for Medicaid and covered rehabilitation services could be
provided to them and reimbursed—but only if the services are not intrinsic
elements of the other programs. “Intrinsic elements” is undefined. In 2004,
Congress rejected a CMS proposal to include similar language in the Medicaid
law. It is questionable whether the agency can do this under regulation and
without specific legal authority.
The
proposed changes would save the federal government an estimated $180 million
in one
year and $2.2 billion over a five-year period—all resulting from that last
problematic provision. None of those dollars would accrue to states and localities,
which would have to either reduce services or pick up the slack for the lost
federal revenue.
Comments
Due October 12th
The public
has 60 days to submit comments on the new rule. Comments from consumers,
advocates, states, localities and providers are important in order to ensure
the most appropriate rule possible when the regulation is issued in final
form. Government agencies must count each comment letter. Weight is given
to the points that attract numerous comments (note that letters with multiple
signers are counted as only a single letter).
Comments must be received by 5:00 pm on October 12, 2007.
They may be submitted electronically to http://www.cms.hhs.gov/eRulemaking (click
on the link ``Submit electronic comments on CMS regulations with an open
comment period.'') For postal mail and faxing instructions, see the first
page of the proposed regulations. The Bazelon Center is preparing its comments,
and will post them as soon as they are drafted.
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