NAMI Summary of CMS Regulations on Case Management Services
December 14, 2007
The Center for Medicaid and Medicare Services released interim final regulations on Case Management Services on December 4th, 2007. Comments are due February 4th, 2008. Because these were released as interim final rules, they go into effect on March 8th, 2008. NAMI urges its members and affiliates to submit comments and will be providing a draft of NAMI National’s comments.
The Deficit Reduction Act, passed in 2006, gave the agency the authority to issue interim final regulations and also provided some guidance on the scope of the case management benefit. However, NAMI is very concerned that some of these provisions go beyond the DRA and will fragment services and impede access to treatment. The rules would have a particularly negative impact on children because of their frequent interaction with other systems, including foster care, juvenile justice and education. Some examples are:
- One of the most troubling provisions in the preamble states, "Medicaid may not pay for case management services furnished by contractors to the State child welfare/child protective services agency, even if they would otherwise be qualified Medicaid providers." This is written so broadly that it could be interpreted to mean that a provider who gave behavioral health services to non-Medicaid children or to parents involved in foster care under contract with the foster care system could not provide Medicaid case management. The preamble and regulations have similar prohibitions on parole and probation contractors. These provisions exceed the DRA provisions and encourage fragmentation and instability in the provider system.
- The preamble to the regulations also provide that case managers hired by the child welfare, juvenile justice or parole agencies cannot bill for Medicaid case management even if they are performing an allowable function simply because they are employees of the other systems. Again, this will encourage fragmentation and decrease the availability of critical case management services to individuals served by these other systems.
- The preamble and rule significantly restrict case management to children in the educational system. They provide that a Medicaid case manager cannot bill Medicaid for attending IEP and IFSP meetings, again encouraging fragmentation. The regulation preamble further states that FFP is not available for case management provided solely based on obligations under section 504 of the Rehabilitation Act. This is counter to Congressional amendments in which Congress expressed its concern that Medicaid pay for school based care. This distinction of Section 504 violates that intent. The preamble is clear that they will pay for case management in an IEP or IFSP but not if the need is based on a Section 504 plan.
- The regulation uses terms that are not defined and can be construed so broadly as to significantly restrict access. Federal financial participation is not available for activities that are "an integral component" of another covered Medicaid service. FFP is also not available for "administrative activities integral to the administration of the foster care program." Even when a case worker is referring a child for mental health or medical care, the foster care system is not permitted to bill that as medicaid case management. The rules even more broadly exclude "the administrative activities integral to other non-medical programs." This use of a broad term, “integral”, that is not defined at all, leaves systems open to audit and makes it very difficult for consumers and families to know what is covered.
- The new rules exclude payment for case management as part of a therapeutic foster care program, despite the strong evidence base for the effectiveness of this service for children with mental illnesses. The preamble clearly states," case management activities included under therapeutic foster care programs will be subject to payment exclusion since these activities are integral to the foster care program."
- The preamble to the regulation also expressly prohibits bundling as a payment methodology. The preamble states: "a State cannot employ a methodology or rate that results in payment for a bundle of services. Per diem rates, weekly rates, and monthly rates represent a bundled payment methodology ... A bundled methodology exists when a state pays a single rate for more than one service furnished to an eligible individual during a fixed period of time." The preamble continues to say that these rates are not accurate or reasonable and don't accurately reflect true costs. They require that all fee for service case management be reimbursed in 15 minute increments. But they are clear that capitation is allowed. NAMI believes that this allowance of capitation but disallowance of bundled rates is inconsistent and can impede access to evidence based services such as Assertive Community Treatment.
- CMS allows billing for case management for Medicaid beneficiaries who are making a transition from a medicaid eligible facility (they exclude people in institutions for medical disease – IMDs- and prison). But they can only bill for transition services in the last 60 days of a stay that is 180 days or longer and the last 14 days of a stay of less than 180 consecutive days. Also, they can only get federal matching funds after the person leaves the institution and is enrolled and receiving services from a community case management provider. Previous CMS policy implementing the Olmstead decision allowed payment for community-based case managers for 180 days before discharge. This new rule is not workable because discharge dates change rapidly due to circumstances. Also small providers will find it difficult to wait for payment until the individual is actually in the community.
Some positive aspects of the new rules:
- The rules have clear language about the value of engaging families for the case manager. The preamble states, "It may also be appropriate to have non-eligible family members involved in all components of case management because they may be able to help identify needs and supports to assist the eligible individual in obtaining services, provide case managers with useful feedback and alert case managers to changed in the individual's needs."
- The rules also prohibit a state from using case managers to do medical necessity reviews for utilization management. They separate out the function of the gatekeeper and the case manager. The preamble concludes, "permitting case managers to function as gatekeepers under this optional State plan service will allow case managers to restrict access to services - that is, to the extent to which authorization may be denied, access also may be denied. " The rule specifies that this concept is contrary to the statutory definition.
One other aspect of the rule could be troubling or helpful. NAMI is interested in feedback from its members on the potential impact of this rule:
- The rule states that case management services must be provided by a single Medicaid case management provider. Thus, if a person fell within two targeted groups (mental illness and mental retardation), the state must choose the appropriate group so the individual will have one case management provider who will ensure that the assessment and care plan address the person's needs from both disabilities. They are delaying compliance with this new rule to the lesser of 2 years or 1 year after the close of the first legislative session of the state legislature that begins after the regulation becomes final. This could be a positive development because families and consumers would only have to work with one case manager, streamlining the system. However, this could also lead to the loss of a case manager who is more experienced in the other system. NAMI is interested in your feedback on this question, particularly if you or your family member has been involved in multiple systems and received case management from more than one system or from one system that coordinated with the others.