More than 500 organizations have signed a letter to Congress requesting that residential facilities that meet the new Family First Act “Qualified Residential Treatment Program” (QRTP) standards be exempt from being classified by Medicaid (CMS) as an Institution for Mental Diseases or “IMD.”
The letter in part states: “(The Family First Prevention Services Act) FFPSA created a new category of residential settings to serve children in foster care – Qualified Residential Treatment Programs. QRTPs are one of the few residential settings eligible for Title IV-E reimbursement, and they create an opportunity for increased oversight and accountability while improving outcomes for children who have assessed behavioral and mental health needs…
In July 2019, a Centers for Medicare and Medicaid Services (CMS) regional office notified Kentucky that QRTPs over 16 beds, as defined in FFPSA, are likely IMDs. In September 2019, CMS issued a Frequently Asked Questions document, clarifying that QRTPs are not categorically IMDs and that IMD status is a state by state, facility by facility determination. However, in a July 30, 2020, letter responding to an inquiry from the state of California, CMS noted that “QRTPs were added to title IV-E with no cross reference to Medicaid statute allowing them to be considered as an exception to the IMD exclusion.”
The Family First Act allows states to drawn services funding for certain in-home, mental health, and substance use treatment funds (included on a clearinghouse list) if the state agrees to meet the QRTP requirements. Starting on October 1, 2021, the new QRTP standards apply to all states regardless of whether the state opts into the new services part of the law.
Under the QRTP requirements, a child covered by federal Title IV-E foster care funding will only be covered by such federal funding if that facility meets a number of requirements:
- the facility has been accredited;
- it operates under a trauma-informed treatment model;
- a registered or licensed nursing or other clinical staff are available 24 hours -seven days a week;
- within 30 days of placement, the placement will be reviewed by a qualified individual who is a trained professional or licensed clinician;
- that person will determine why having the child live with a foster family cannot meet the child’s need and whether a QRTP is the most effective and appropriate level of care;
- within 60 days, a court will consider this assessment and either approve or disapprove the QRTP placement;
- if the child remains in a QRTP, at each 6 months, a review and the child welfare agency has to submit documentation on progress, treatment services, and transition plans;
- if a child is 12 or younger and is in a QRTP for 6 consecutive months or non-consecutive months or is 13 or older and in a QRTP for 12 months or 18 non-consecutive months, the head of the state child welfare agency must provide the documentation for the continued placement to HHS; and
- the QRTP must have a treatment plan that includes post-discharge planning and family-based aftercare supports for a minimum of 6 months.
The potential CMS ruling would mean that even if a facility met the letter of the Title IV-E law, it could trigger the Medicaid restriction.
The IMD restrictions date back to the creation and implementation of Medicaid in 1965 to prohibit the use of federal funds for large mental health institutions. An IMD is defined as a hospital, nursing facility, or other institution of more than 16 beds that is primarily engaged in providing diagnoses, treatment, or care of persons with mental diseases, including ones that require medical attention, nursing care, and related services. Currently, the law prohibits states from using Medicaid to pay for care provided in IMDs.
Many organizations see the IMD as an outdated part of the law, but changing it could be costly.
According to the National Alliance on Mental Illness, “This is the only part of federal Medicaid law that prohibits payment for the cost of providing medically necessary care because of the type of illness being treated. This discriminatory exclusion has been in place since Medicaid’s enactment in 1965, and it has resulted in unequal coverage of mental health care.”
Now the issue has entangled the new provisions of the QRTP in the Family First Act. Under the Family First Act (Title IV-E of the Social Security Act), there is no bed count restriction. The challenge here is that a child welfare facility that meets all the requirements of the QRTP then being classified as an IMD would mean that any child or youth in such a placement would be ineligible for any Medicaid coverage within the facility or on an outpatient basis. Fixing this inadvertent connect to the IMD could be done without weakening the restrictions under the new QRTP law.
As the letter states: “Many high-quality, licensed, and accredited residential providers are considered to have over 16 beds because the bed count includes all beds on a campus or under common ownership, rather than the number of beds in each separate unit, cottage, or family-style home. Further, FFPSA did not include a size restriction in the QRTP requirements, and there is no evidence that programs with 16 beds produce better outcomes than programs with greater capacity.”
The letter asks for a legislative fix since there doesn’t seem to be an administrative correction. Congressional staff have engaged in getting such administrative clarity. It’s possible to clarify in Medicaid statute the QRTP status, but it can sometimes be a challenge to change Medicaid. The IMD is a controversy that at times few people want to tackle. But the fear is that without such a fix, many children in foster care will be pushed into either more restrictive mental health placements or, on the other end, non-therapeutic shelters, unlicensed settings, or move even more from placement to placement without addressing their needs.