Children's Monitor Online
A Public Policy Update from the Child Welfare League of America

   
   
Vol. 20, Issue 35: 9/17/2007   
Headlines

CWLA Posts Analysis of Proposed Regulation on Medicaid Rehabilitative Services

Congress Experiencing Difficulty Coming to the SCHIP Table

Appropriations Move Forward, War Funding a Separate Vote

CWLA Legislative Alerts Available to Subscribers

Key Upcoming Dates for Congress



CWLA Posts Analysis of Proposed Regulation on Medicaid Rehabilitative Services

To assist members and concerned stakeholders in analyzing the effect of the recently published proposed Centers for Medicare and Medicaid Services (CMS) regulation that would affect Medicaid rehabilitative services, CWLA has posted its working summary and analysis of the proposed regulation online.

This is a proposed regulation; the public has until October 12 to submit comments to CMS. CWLA will be submitting its own comments for review by CMS and urges other individuals and groups to do the same. CWLA's working summary and analysis should provide a thorough starting point for discussion and analysis, but please send further feedback on how the proposed regulation would affect children and families, and the agencies and providers who serve them, to Laura Weidner, CWLA Government Affairs Associate for Health, at lweidner@cwla.org.

Many states implement rehabilitative services for various populations, including children in foster care. Rehabilitative services are defined as "any medical or remedial services (provided in a facility, a home, or other setting) recommended by a physician or other licensed practitioner of the healing arts, within the scope of their practice under State law, for maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level." These services are critical to improving the well-bring of children in foster care, as they offer a realistic opportunity to--in the least restrictive setting possible--reduce the physical and/or mental disabilities that many children in foster care have, in both a person-centered and evidence-based manner.

The proposed rule (CMS 2261-P/72 FR 45201) can be and viewed in its entirety. Among other provisions CWLA is concerned about, the regulation would establish a fairly strict qualified provider standard and a separate written rehabilitation plan requirement.

It would also exclude payment from Medicaid for services deemed "intrinsic to" other programs, including child welfare and foster care. This "intrinsic to" test appears to want to ensure that Medicaid does not pay for services CMS deems are the responsibility of other programs, but no specific guidance is provided as to what "intrinsic to" really means. Therapeutic foster care services would surely be affected by the proposed rule, as it excludes rehabilitative services from the definition of therapeutic foster care services, except for medically necessary rehabilitation services that are clearly distinct from packaged therapeutic foster care services. By denying federal financial participation, this appears to effectively revoke the option to bundle rates for therapeutic foster care.

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Congress Experiencing Difficulty Coming to the SCHIP Table

With Senate Republicans having blocked appointment of formal conferees, insisting up front on agreement on the final deal's size and breadth, the fate of the State Children's Health Insurance Program (SCHIP) remains undetermined. Each state has an SCHIP program, and, combined, they provide much-needed health insurance to more than six million low-income children whose families earn too much to qualify for Medicaid, those who are either not offered or cannot afford private coverage, and some lower income adults.

House leaders have daid they would prefer a formal conference, but considering the tight spot they are in, members may have to informally reach a compromise and hope for approval in a brief conference. This route faces one final, defeating roadblock, however, because President Bush has repeatedly threatened to veto either the House or Senate version of SCHIP reauthorization legislation as they currently stand. If action is not completed by SCHIP's expiration date of September 30, Congress has indicated it will resort to a short-term extension of the program, most likely at current funding levels.

The two chambers are having a difficult time coming to the table for several reasons, but a couple fundamental differences do stand out. One is the funding level. The House bill, the Children's Health and Medicare Protection Act (the CHAMP Act, H.R. 3162) is a larger package, providing $47 billion in additional funding over five years for SCHIP, whereas the Senate's bill (S. 1893) would offer approximately $35 billion in additional funding over five years. Either would be a vast improvement from the President's proposal of only $5 billion additional over five years, but some members of the Senate have promised to withdraw their support if Congress's version exceeds $35 billion.

Another area of wariness is how the bills would be paid for. The House would fund its $50 billion by a 45 per pack increase in the federal tobacco tax and a phaseout of overpayments to private Medicare Advantage plans, whereas the Senate is silent on Medicare and would pay for its $35 billion entirely with a 61 per pack increase in the federal tobacco tax. Similarly, the House bill, in addition to reauthorizing SCHIP, makes certain fixes to Medicare, which Senators from both parties do not want to tackle right now.

In addition to questionable long-term reauthorization of SCHIP, state SCHIP programs face a more immediate problem in the guise of new CMS policies that make it next to impossible for the 18 states and the District of Columbia that are already using or plan to use SCHIP to cover children in families who earn over 250% of the federal poverty level (250% of FPL is $51,625 for a family of four). Among the preconditions CMS has enumerated, to cover children in families above 250% of the federal poverty level (FPL) through SCHIP, states would have to prove the beneficiaries--in this case, children--have been uninsured for at least an entire year. These states would also have to show they have enrolled at least 95% of their children below 200% FPL who are eligible for either SCHIP or Medicaid.

New York, which currently offers SCHIP to children in families up to 250% FPL but was hoping to extend coverage to those in families up to 400% FPL, has already felt the policies' blow. The CMS Acting Administrator sent a letter rejecting New York's state plan amendment for failure to demonstrate it had enrolled 95% of children in the "core targeted low-income child population." New York may petition for reconsideration within 60 days, and Governor Eliot Spitzer has a legal team working to challenge the underlying policies.

Congress is on offense, as well. Forty-four Senators, including six Republicans, signed on to a letter requesting President Bush to withdraw the requirements, or at the very least issue the policies by formal process with public comment, rather than through the back door. The possibility also exists for overturning these policies as part of SCHIP reauthorization.

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Appropriations Move Forward, War Funding a Separate Vote

With the federal fiscal year starting October 1, the Senate has approved its fourth of the 12 required spending bills. The Appropriations Committee also approved a Defense Appropriations bill with an understanding that a separate bill would have to be passed to fund the war. The defense bill is funded at $459 billion, an increase of $39 billion over 2007. The war funding started at $150 billion for 2008, but the Administration is preparing to ask for an increase in that total to address the recent increases in troop levels and other costs. War funding could reach $200 billion in addition to the $459 billion in defense spending.

Of the 12 appropriations bills, the President has issued veto threats against 8, with some indication he may do the same with the Defense bill. The bills passed by both houses include Transportation-Housing (H.R. 3074/S. 1789), Military Construction and Veterans Affairs (H.R. 2642/S. 1645), Homeland Security (H.R. 2638/S. 1644) and State Department-Foreign Operations (H.R. 2764). Of the remaining 8, all have been debated and passed by the full House, and all have been passed by the Senate Appropriations Committee.

The President has said he would veto 9 of the 12 bills, including funding for the Departments of Labor, Health and Human Services, and Education (Labor-HHS). The House bill (H.R. 3043) allocates $151 billion in discretionary spending, an increase of 4.6% from the FY 2007 total of $144 billion. The Senate Committee bill for Labor-HHS (S. 1710) provides a 3 % increase over current FY 2007, at $149 billion in overall discretionary funding, which also equates to 6% more than the President's budget request. The Administration has called the $7 billion increase for Labor-HHS too large.

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CWLA Legislative Alerts Available to Subscribers

CWLA's Legislative Alerts provide breaking news, advocacy information, and critically important timely details of legislative battles. In an effort to broaden CWLA's advocacy network on behalf of children, anyone can now subscribe and receive the same information. This effort compliments CWLA's weekly electronic legislative newsletter, the Children's Monitor, which is also available free to any subscriber. We encourage you to register to receive these items directly and to pass on the information to other colleagues, family, and friends.

Subscribe to Legislative Alerts.

Subscribe to Children's Monitor.

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Key Upcoming Dates for Congress

  • September 24-26: CWLA Mid-Atlantic Region Training Conference
  • September 30: SCHIP reauthorization expires
  • October 1: 2008 federal fiscal year begins


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