CMS Moratorium Mêlées : Deux

On Tuesday, the Senate passed S. 1200, the Indian Health Care Improvement Act Amendments of 2007. The comprehensive bill seeks to modernize the Indian health care delivery system and it includes a critical amendment by Sen. Barbara Mikulski (D-MD) to prevent yet another proposed rule from the Centers for Medicare and Medicaid Services (CMS) from going into effect.

Mikulski’s amendment would prevent CMS from implementing rule CMS-2237-IFC “Medicaid Program; Optional State Plan Case Management Services.” The rule, issued on December 4, 2007, would restrict CMS payments for case management services offered to children with disabilities under their Individualized Education Plan (IEP) as required by the Individual with Disabilities Education Act (IDEA), and it would disallow the provision of case management when it is part of a child’s plan under Section 504 of the Rehabilitation Act. (See 72 Fed. Reg. 68077-68093) (Dec. 4, 2007). This rule is scheduled to take effect on March 3, but Mikulski’s amendment would delay implementation until April 1, 2009.

This is the second critical moratorium on CMS rules that we are tracking. Congress passed the first in December, S. 2499, the Medicare, Medicaid, and SCHIP Extension Act of 2007. The bill, now Public Law No: 110-173, contains a moratorium on CMS’ rules to restrict Medicaid reimbursement payments to schools relating to coverage for rehabilitation services or school-based administration and school-based transportation. The moratorium runs until June 30, 2008 and there is heavy pressure on Congress to extend this moratorium into 2009 and beyond.

Despite the political opposition to CMS’ rules, CMS is dedicated to reducing its payments to schools and Congress is determined to prevent CMS action. To be sure, these moratorium mêlées will be important to Members of Congress this year. We will continue to monitor and analyze the events as they develop.

Resource:
72 Fed. Reg. 68077-68093) (Dec. 4, 2007), http://www.access.gpo.gov/su_docs/fedreg/a071204c.html.
Judith Solomon, “New Medicaid Rules Would Limit Care for Children in Foster Care and People with Disabilities in Ways Congress Did Not Intend,” Center on Budget and Policy Priorities, Revised February 8 2008, http://www.cbpp.org/12-21-07health.htm
Author: DAD

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CMS Moratorium Political Strategies (2/8/2008)

The countdown to June 30th continues. That is the day when the moratorium on the rules issued by the Centers for Medicare and Medicaid Services (CMS) expires. Congress passed the moratorium last December as a part of the S. 2499 (now Public Law No: 110-173), the Medicare, Medicaid, and SCHIP Extension Act of 2007, and it prevents CMS from implementing regulations that would restrict payment under title XIX of the Social Security Act for rehabilitation services or school-based administration and school-based transportation. It reads:

SEC. 206. MORATORIUM ON CERTAIN PAYMENT RESTRICTIONS.
Notwithstanding any other provision of law, the Secretary of Health and Human Services shall not, prior to June 30, 2008, take any action (through promulgation of regulation, issuance of regulatory guidance, use of Federal payment audit procedures, or other administrative action, policy, or practice, including a Medical Assistance Manual transmittal or letter to State Medicaid directors) to impose any restrictions relating to coverage or payment under title XIX of the Social Security Act for rehabilitation services or school-based administration and school-based transportation if such restrictions are more restrictive in any aspect than those applied to such areas as of July 1, 2007.

Many in Washington are now racing against the clock. Led by a the American Association of School Administrators and the National Education Association, a broad coalition is working with members of Congress to draft legislation that will, at least, extend the moratorium until 2009 when the administration turns over and Michael O. Leavitt is no longer the Secretary of Health and Human Services. The coalition is working with the members of the House Committee on Energy and Commerce and the Senate Finance Committee, the committees with jurisdiction over the matter, to first draft legislation and then to find a bill sponsor and co-sponsors.

Yet, the problem is not with support for the action, but with finding sufficient budget offsets for the legislation. The Democratic leadership in the House is still operating under Pay Go rules, which require that any new funding must be offset either through program cuts or raising taxes. Whether such legislation would require an offset, and the cost of that offset, is now under discussion. Once that is resolved, any newly drafted CMS moratorium bill would not move on its own but be attached to another piece of legislation that will be signed by the President, although the question of who the President will be at that time is also part of the strategy debate. We are actively taking part in this process and will report on any progress as it occurs.

Resources:
Medicare, Medicaid, and SCHIP Extension Act of 2007, S.2499, http://thomas.loc.gov/cgi-bin/query/z?c110:S.2499:, (chose option 1).
Elicia J. Herz, CRS Report for Congress: Medicaid and Schools (Congressional Research Service, updated December 20, 2007), http://opencrs.com/document/RS22397/.
Author: DAD

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CMS Moratorium Language (12/21/2007)

This week, the House and Senate passed S. 2499, the Medicare, Medicaid, and SCHIP Extension Act of 2007. The bill extends the long debate over the State Children's Health Insurance Program (SCHIP) and the Center for Medicaid and Medicare Services (CMS) moratorium language into 2008.

It will, when signed by the President, extend funding for the State Children's Health Insurance Program (SCHIP) until March 2009 and it contains a moratorium on the rules, issued by the Center for Medicaid and Medicare Services (CMS) in the Department of Health and Human Services (HHS), to restrict Medicaid reimbursement payments to schools. The moratorium runs until June 30, 2008:

SEC. 206. MORATORIUM ON CERTAIN PAYMENT RESTRICTIONS.
Notwithstanding any other provision of law, the Secretary of Health and Human Services shall not, prior to June 30, 2008, take any action (through promulgation of regulation, issuance of regulatory guidance, use of Federal payment audit procedures, or other administrative action, policy, or practice, including a Medical Assistance Manual transmittal or letter to State Medicaid directors) to impose any restrictions relating to coverage or payment under title XIX of the Social Security Act for rehabilitation services or school-based administration and school-based transportation if such restrictions are more restrictive in any aspect than those applied to such areas as of July 1, 2007.

The proposed rules will continue to be a hard fought battle in 2008 because HHS is determined to reduce its costs through such regulatory means. Last week, Secretary Mike Leavitt wrote that “the President's senior advisors would recommend a veto of any bill that… undermines efforts to promote fiscal solvency in the Medicare and Medicaid programs. For example, legislation should not repeal the Medicare funding warning or erode the programs' fiscal integrity by overturning regulatory policies developed by the Administration.” And as everyone was focusing on the FY08 omnibus bill, CMS placed on display at the Office of the Federal Register a final rule (CMS-2287-F) regarding Medicaid reimbursement for school-based administration and transportation. Generally, these regulations are effective 60 days after the date of publication in the Federal Register; but the moratorium delays that for six months so school budgets in the 2007-2008 school year will not be affected. The serious “overturning” battle will begin in January.

Recognizing the fight to come, the National Education Association (NEA) and LEAnet.com (an on-line coalition for school based health services) are organizing better political resistance. On January 22nd, they will host a working session on this topic that is designed to “make common ground, to inventory collective resources, to build the foundation for designing a strategy, and to establish a communication system that will be more effective than mere emails.” The NEA will host the event at their headquarters in Washington, D.C. Please contact us for more information on this event.

Resource:
The LEAnet.com, http://www.theleanet.com/
Author: DAD

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Moratorium Language Caught in the Veto (Again)

This week, Congress sent a slightly revised State Children’s Health Insurance Program (SCHIP) bill to the President and, as expected, he vetoed it. Like the prior SCHIP bill that the President vetoed in October, this also contained moratorium language in section 616. The section would prevent the Center for Medicare and Medicaid Services (CMS) (a part of the Department of Health and Human Services) from implementing proposed rules relating to reduced federal financial participation for rehabilitative services and for administrative and transportation costs related to Individuals with Disabilities Education Act services. Having failed to override the veto in October on nearly identical legislation, the Democratic leadership chose not to consider an override until January 23.



So what is next for the moratorium? According to Congressional staffers, there is broad bi-partisan agreement to include the moratorium in some bill before the close of the year, but the viable bills are few and the prospects are dim.
Recognizing the diminishing opportunities and the importance this may play in the upcoming elections, Representative John Boozman (A-AR) introduced H.R. 4355, a bill to impose a moratorium on certain Medicaid payment restrictions on December 11th. The bill places a moratorium on the restriction of payments for a year after the date of the enactment of the law. Yet, this bill will not move until January, if at all, and when it does it will face opposition from the Department of Health and Human Services (HHS).

On December 4th, HHS Secretary Leavitt wrote to Senator Max Bacus (D-MT), the Chairman of the Senate Finance Committee, regarding the agency’s opposition to the moratorium language. In the letter, Secretary Leavitt wrote that “the President's senior advisors would recommend a veto of any bill that… undermines efforts to promote fiscal solvency in the Medicare and Medicaid programs. For example, legislation should not repeal the Medicare funding warning or erode the programs' fiscal integrity by overturning regulatory policies developed by the Administration.” Secretary Leavitt, it appears, is ready to fight Congress on this issue.

If Congress is unable to pass moratorium legislation in a timely manner, it will still have a final opportunity to act under the Congressional Review Act (5 U.S.C 801-808). According to the act, an agency must submit final rules to both houses of Congress and the General Accounting Office before they can take effect. Although rarely used, action by Congress and the President could have an impact on the rule. We will continue to monitor the issue as it develops.

Resource:
“Secretary Leavitt Letter to Congress on Medicare Physician Payment Legislation,” U.S. Department of Health and Human Services, News Release, December 4, 2007, http://www.hhs.gov/news/press/2007pres/12/pr20071204b.html
Author: DAD

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Taking CMS Issues to Congress

A consortium of opponents to the proposed rule changes related to Medicaid reimbursements for school-related administrative and transportation costs are taking the issue to members of Congress. The Center for Medicare & Medicaid Services (CMS) has attempted to pass this rule for almost 20 years, but has taken its efforts further this year by announcing a proposed rule in the Federal Register earlier this month. Meeting with no success in appealing to CMS and the current Administration, advocates for the program are taking their issues to Congress, hoping to spur legislation that will keep CMS from instituting and enforcing the proposed rule.

School districts all over the country receive federal reimbursement for an estimated $3.6 billion over five years in Medicaid services provided to children with disabilities. Schools rely on these reimbursements for a variety of purposes, such as outfitting buses with specialized equipment, transporting children to school for their medical appointments, identifying students who need screenings and evaluations, and connecting children and their families with other needed services in their community. CMS, which is under the jurisdiction of the Department of Health and Human Services, argues that it should not have to reimburse school-related costs. Advocates for the program have been successful in stopping CMS before it can move on this rule every year until now.

Some lawmakers have taken mild steps towards legislation that would prohibit CMS from going through with its proposed rule, but efforts have been ineffective so far. Presently, advocates are sending individual and dear colleague letters to members of Congress, asking for their support of any legislative efforts towards that end. The most likely vehicle for this legislation is currently the State Children’s Health Insurance Program (SCHIP), which is in conference at the time of this Update’s publication. The House version of the bill included a provision that would prevent CMS from moving forward on the rule, but it is not clear if that provision will make it into the conference report. Another likely vehicle would be an omnibus appropriations bill. The 60-day comment period on the proposed rule ends in November, leaving just over a month for advocates to lobby Congress for assistance in keeping the program running.

Author: SAS

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CMS Posts Proposed Rule on Medicaid Reimbursements

The Center for Medicare & Medicaid Services (CMS) posted a proposed rule in today's Federal Register to eliminate reimbursement for certain school-related costs under Medicaid. CMS has attempted to institute this rule since 1988, but has never met with success, due to both public and Congressional rejection of the proposal. The proposed rule would establish a Secretarial finding that school-based administrative activities are not necessary for the proper and efficient administration of the State plan. Moreover, this proposed rule would establish a finding that transportation from to and from school for school-age children is neither necessary for the proper and efficient administration of the State plan, nor within the scope of the optional medical transportation benefit. Based on these findings, the proposed rule would specify that federal financial participation under the Medicaid program will not be available for school-based administrative and certain transportation costs unless conducted by employees of the State or local Medicaid agency. CMS has opened up for public comments on the proposed rule. Comments on the proposed rule must be received no later than 5:00 p.m. on November 6, 2007.

Because of the agency's long history of opposition to this program, it is unlikely that comments in opposition will have any serious impact on the decision to eliminate the program. Therefore, the best hope is for Congressional intervention. Sen. Edward Kennedy (D-MA), chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee attempted to add a provision to the Senate's bill expanding the State Children's Health insurance Program (SCHIP) that would have placed a one year restriction on regulatory efforts to eliminate the program, allowing Congress enough time to work on a more permanent solution. The provision did not make it into the bill, but there is still a possibility that the conference report for the SCHIP expansion may contain such language. Otherwise, there are other vehicles, such as appropriations bills, that can carry the provision. However, this relies heavily on Congress's ability to move quickly on the issue, and that is not likely to occur.

To view the Federal Register listing, go to:
http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/07-4356.pdf.

Author: SAS

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CMS Proposed Rule on Reimbursements

For a number of years, the Center for Medicare and Medicaid Services (CMS) has been responsible for federal reimbursements for IDEA related school-based administrative outreach and transportation costs. The administration has worked towards ending this practice for the last few years. Every year, CMS discusses proposing new regulations that would prohibit payments for education-related costs, but public support for the program has stalled the effort each year. This year, however, CMS is taking a more proactive approach, having submitted a proposed rule (CMS-2287-P) to the Office of Management and Budget (OMB) for review, taking a big first step towards eventual acceptance.

The Medicaid Administrative Claiming (MAC) program provides partial reimbursement to schools for health related services provided by professionals during the school day to children with disabilities. The program, developed by a state’s Medicaid agency, must be approved by CMS. Schools rely on these reimbursements for a variety of purposes such as outfitting buses with specialized equipment, transporting children to school for their medical appointments, identifying students who need screenings and evaluations, and connecting children and their families with other needed services in their community.

Despite the fact that CMS is run by the Department of Health and Human Services (HHS), MAC has provided funds for education-related expenses. The Office of the Inspector General of HHS included elimination of the program in its Redbook, which is a roadmap for their actions in the year ahead. For the last few months, CMS has stated that it will issue regulatory changes that would eliminate reimbursement to schools for the costs of administrative activities and for transportation of students under the MAC program. CMS argues that this is necessary because of fraud and abuse in the program. The education community, which stands to lose an estimated one billion dollars annually in reimbursements, argues that CMS is disregarding recently implemented changes that address these concerns.

OMB has 90 days to review the proposed rule before ruling on its validity. CMS submitted the proposal on August 13th, leaving many concerned parties in a worried state of limbo until the end of the year. Advocates for the program, such as the National School Boards Association, have already voiced their concerns to CMS, the White House, and Congress. Senator Edward Kennedy (D-MA) already attempted to pass an amendment to the State Children’s health insurance program authorization that would prohibit any such rule for one year while Congress works on a way to rectify the situation, but the effort stalled on the Senate floor. Unless Sen. Kennedy can convince conferees on the SCHIP bill to insert the language, school districts may face a problem when OMB issues its decision on the proposed rule.

Author: DAD, SAS

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