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

   
   
Vol. 21, Issue 10: 3/10/2008   
Headlines

States File Suit Against HHS Over CM/TCM Regulation

House Committee Issues Report on State-by-State Impact of Medicaid Regulations

CWLA Calls on Budget Committees to Fund Reforms and Prevention

House Passes Mental Health Parity Legislation

National Foster Parent Association Builds on Its "Puts a Plank In Their Platform" Campaign

New CWLA Radio Blog, "Speaking for America's Children"

Join CWLA's Call for a White House Conference on Children and Youth

CWLA Legislative Alerts Available to Subscribers

Key Upcoming Dates for Congress



States File Suit Against HHS Over CM/TCM Regulation

Maine, Maryland, New Jersey, and Oklahoma have filed a joint lawsuit against the U.S. Department of Health and Human Services (HHS) and Secretary of Michael O. Leavitt, seeking injunctive and declaratory relief against certain provisions of HHS's recent interim final rule on Medicaid case management and targeted case management (CM/TCM) services. The complaint alleges the challenged provisions are not in accordance with Title XIX of the Social Security Act; are an arbitrary and capricious act, taken without regard to procedure required by law and in excess of HHS's statutory jurisdiction, authority, or limitations, in violation of the Administrative Procedure Act (APA); and were adopted in violation of the APA's notice and comment requirements for informal rulemaking.

Taking into account the vulnerability and complex needs of children in foster care--including health needs, at least 38 states employ the Medicaid TCM option to ensure a comprehensive approach and greater coordination of care for foster children. Although Congress clarified the scope of the Medicaid CM/TCM benefit through Section 6052 of the Deficit Reduction Act (DRA, P.L. 109-171), CWLA and many other organizations and members of Congress have been concerned--as this lawsuit indicates--that the rule exceeds DRA's statutory provisions and thus jeopardizes the future of vital, legitimate case management services.

For instance, the regulation vaguely disallows Medicaid reimbursement for CM/TCM services that are deemed "integral to" the administration of another nonmedical program, such as child welfare and child protective services. CMS alludes this exclusion could extend to case management services furnished by contractors to state child welfare and CPS agencies, even if they are otherwise qualified Medicaid providers. The lawsuit challenges the legality of the rule's "integral to" test, as well as the rule's unbundling and single case manager requirements and its significant reduction of days that case management services can be used to transition an individual from an institution to the community.

Stand-alone bills that would impose a moratorium on this rule have been championed by Senators Norm Coleman (R-MN) and Amy Klobuchar (D-MN, S. 2578) and Representative Keith Ellison (D-MN, H.R. 5173). In mid-February, Senator Barbara Mikulski (D-MD) offered, and the Senate accepted by voice vote, an amendment to the Indian Health Care Improvement Act (S. 1200) that imposes a moratorium on the CM/TCM rule until April 1, 2009. The Senate cleared the bill, but the House version is still in committee. The lawsuit is yet another route to ensure case management services are protected and Medicaid beneficiaries are not harmed.

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House Committee Issues Report on State-by-State Impact of Medicaid Regulations

After a hearing on the proposed Medicaid regulations in November, the House Oversight and Government Reform Committee asked state Medicaid directors to produce state-by-state fiscal and beneficiary impact analyses of the Administration's Medicaid regulatory proposals. Forty-three states and the District of Columbia provided written responses on at least some of the rules, which the Committee has compiled into a comprehensive report.

These states estimate a reduction of federal payments by $49.7 billion over five years, whereas the rules themselves only anticipated approximately $15 billion in federal savings. The report warns the figures should be viewed with caution but draws several conclusions, particularly that the seven regulations represent a "major fiscal blow for many states," merely shift costs instead of producing greater efficiencies, and disrupt existing systems of care for fragile populations. The report also points out that in many instances, the rules represent "unilateral actions by CMS neither directed nor authorized by Congress."

Concerned with the broad impact of these rules on Medicaid, its beneficiaries, and beyond, CWLA is especially troubled and has been pushing back on the rehab and CM/TCM rules because of their significant and seemingly disproportionate effect on the child welfare and foster care systems and the vulnerable population they serve. The 18 states that were able to quantify impact of the rehab rule reported a total loss of $5.2 billion in federal Medicaid funds over five years. Twenty-one states were able to quantify impact of the CM/TCM rule, reporting a total loss of $3.1 billion in federal Medicaid matching payments over five years.

On the case management rule, the Tennessee Medicaid director specifically indicated children in state custody receive these services and it is "unfair to make these persons bear the brunt of CMS's 'sledgehammer' approach to cutting costs." A spokesman for CMS has since called the committee's report "not credible."

The hearing, "The Administration's Regulatory Actions on Medicaid: The Effects on Patients, Doctors, Hospitals, and States," was held November 1, 2007, and examined a series of regulatory changes that have recently been proposed or implemented by HHS, which Committee Chair Henry A. Waxman (D-CA) said, combined, constitute a "reckless amputation" of the Medicaid program.

Twila Costigan from CWLA member agency Intermountain in Montana testified at the hearing that should the proposed Medicaid Rehabilitative Services rule go into effect as written, the therapeutic foster and group home care programs her agency run would simply be "gone." CWLA, working with other organizations, did manage to secure a six-month moratorium on the rehab rule, which is a positive step in the right direction, but other restrictive rules--such as the CM/TCM regulation--linger and need to be addressed.

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CWLA Calls on Budget Committees to Fund Reforms and Prevention

On February 22, CWLA sent a letter to Budget Committee members in both houses of Congress asking for greater funding to address the need for child welfare reform proposals and to provide funding for prevention and support services. The letter, signed by CWLA CEO/President Christine James-Brown said, "It appears decisions are still being made to spend in the area of tax revenue and other areas not related to the war and at the same time, to cut in areas of human need in order to pay for such deficits."

The letter requested the committees increase specific spending authority under what is referred to as Function 600 programs, which is where foster care and adoption assistance funds are drawn. The funds potentially would allow key committees such as the House Ways and Means and Senate Finance Committees to enact reforms such as kinship care and replace the current eligibility restrictions under foster care and adoption assistance. The letter also called for greater funding authority under Function 500, which allows discretionary funding for such key child welfare prevention and support programs as Promoting Safe and Stable Families (PSSF). PSSF received a significant cut in the 2008 budget.

The budget resolution is passed by both houses but not signed by the President. It determines the amount of money Congress will spend for next year's budget and how much will be spent in each broad category of federal spending such as defense, agriculture, and human service programs. At press time, both houses were closer to a budget resolution to a floor vote. The House Budget Committee approved a resolution on March 5, and the Senate Budget Committee began its debate the next day.

The versions are similar in most areas, but some key differences exist. The House includes a provision to have a reconciliation bill. Under reconciliation, the intent is to reduce long-term mandatory spending, but it can also be used to pass major changes in law, including changes to programs such as Medicare, Medicaid, and foster care. Under the process, a bill cannot be filibustered and requires only a majority of senators to pass, instead of the 60 needed to break a filibuster. The Senate has not included a reconciliation process.

Overall, the House resolution proposes $22 billion in discretionary spending above what the President requested, whereas the Senate proposes $18 billion more. Congress following the President's request would likely result in cuts to key human service programs, including child welfare.

The Senate resolution also differs from the House in that it includes $35 billion for a second economic stimulus package. The Senate does include what is called a reserve fund that would be designated for child welfare reforms, TANF changes, and child support changes. This reserve fund is a mechanism where savings found in one committee or area can be set aside to fund changes in these three areas. It still means funds would have to be found, but it is an important vehicle for potential reforms or changes in those areas.

The big debate may be whether Congress will agree to a reconciliation process, with some Senators resistant to such a move because of how it might fast-track or limit debate over a major spending or program-cutting bill.

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House Passes Mental Health Parity Legislation

On March 5, the House of Representatives passed its mental health parity bill, the Paul Wellstone Mental Health and Addiction Equity Act of 2007 (H.R. 1424), by a vote of 268-148. Much like its Senate companion (S. 558), the bill would erase longstanding discriminatory limitations by requiring group health plans with 50 or more enrollees who choose to offer mental health benefits to provide them on the same terms as other medical conditions. The entire Senate passed its mental health parity bill by unanimous consent on September 18, after adding an amendment that permits stronger state mental health laws to stand. The House bill, too, acts as a floor, preempting only existing state mental health parity laws that are lower than the federal law.

The Senate and House parity bills have come closer together in terms of substance, but differences still exist. The House bill, for example, uses the encompassing definition of illness contained in the American Psychiatric Association's Diagnostic and Statistical Manual (DSM), whereas the Senate bill would leave it up to employers and insurers to negotiate covered conditions. Champions of the Senate bill have threatened to block conference negotiations, fearing bolder House provisions may try to be worked in, which could possibly disrupt the delicate balance struck between industry groups, insurers, and mental health advocates in the Senate compromise. Various parity bills have been considered and conquered for years in Congress, and all affected parties are hoping for victory this year.

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National Foster Parent Association Builds on Its "Puts a Plank In Their Platform" Campaign

The National Foster Parent Association (NFPA) continues to strengthen its efforts to encourage candidates to speak out on child welfare issues thorough its "Put A Plank In Your Platform" education effort.

NFPA recently added to its efforts by including the new legislation introduced by Representative Jim McDermott (D-WA), the Invest in KIDS Act, as part of its brochure. NFPA is already advocating for the call for reestablishing the White House Conference on Children and Youth.

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New CWLA Radio Blog, "Speaking for America's Children"

On the Line with CWLA is a thought-provoking, interactive, live Internet radio program focusing on subjects, stories, and strategies of special interest to child welfare policymakers, providers, and practitioners. The program, devoted solely to discussions about the welfare of America's vulnerable children, features a forum where numerous points of view and voices of experience within the child welfare universe can be heard. To listen to On the Line with CWLA, go to www.blogtalkradio.com/CWLA-Radio.

The live program, hosted by broadcasting veteran Tony Regusters, is a production of CWLA that will provide a platform for CWLA member organizations, their staffs, its partners, and concerned citizens in the national community to share ideas and thoughts about critical issues that affect child welfare agencies, vulnerable children and teens, and their families.

The weekly subject-oriented, solutions-driven program will broadcast Wednesdays, 2:00-2:30 pm ET and feature indepth, timely discussions with leading child welfare experts, agents, and advocates; leadership and representatives from CWLA's member agencies; and local and national political figures working to improve child welfare and give a voice to child welfare professionals, providers, and practitioners nationwide.

Upcoming Shows

March 12, Public Policy Perspectives on the Child Welfare Workforce
The second in a four-part series focused on the child welfare workforce throughout March--National Professional Social Work Month.

3/19/2008 Part 3: Labor Pains: Strengthening The Child Welfare Workforce
3/26/2008 Part 4: Child Welfare Workers: Overworked and Underpaid

The call-in number is 347/326-9411. Visit www.blogtalkradio.com/CWLA-Radio.

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Join CWLA's Call for a White House Conference on Children and Youth

Holding a White House Conference on Children will bring together a cross-section of policymakers, advocates, professionals (including the courts), and families and children directly affected by the child welfare system to create recommendations for policy and change. Much positive change has come from previous White House conferences for children, the last one being held in 1970. CWLA is calling on Congress and the next President to reestablish this important policymaking tradition, and the time to act is NOW.

Your support and involvement with this effort is crucial to its success. As experts in the field, we look to you for your leadership in asking Congress and others to support this important campaign for children.

Sign On in Support

CWLA is calling on members and supporters to sign on in support of a White House Conference on Children in 2010.

Pass a Board Resolution

If your organization requires you to pass a board resolution to officially support such an effort, CWLA has created a sample resolution to assist you in this effort.

Let Congress Know of Your Support

The League encourages you to send your resolutions and letters of support to your Congressional delegation. Without their support, a White House conference is not possible.

In keeping with CWLA's tradition of nonpartisanship, the letter has been sent to all presidential candidates in the two major parties. View the website, read the letter, and sign on to support the campaign.


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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

  • March15-30: Congressional Spring Break
  • April 1: Start of Child Abuse Prevention Month
  • April 15: Target date to pass congressional budget resolution
  • April 25: Children's Memorial Flag Day
  • May 15: Target date for House to begin passage of 12 appropriations bills
  • June 27: Target date for House to complete work on appropriations


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