EPSDT: What Does It Mean For Your Clients and How Can you Use It? Florida Guardian ad Litem Training Florida Legal Services November 12, 2008

What is “EPSDT?” EPSDT is a comprehensive health benefit for all Medicaid-eligible children and youth under age 21. – An “entitlement” program pursuant to 42 U.S.C. § § 1396(a)(43) & 1396d(r)(5). See also § (2), Fla. Stat. – Includes both screening and treatment

Who is Eligible for EPSDT? ALL Children on Medicaid – “Children in Care” – Children in low income families See Fla. Admin Code R. 65A-1.703(1)(a);(3); ESS Policy Manual Appendix A-7; Fla. Stat – Children in home and community based waivers See 1/10/01 Dear State Medicaid Director letter – Children on SSI Fla. Stat (2)

Which “Children in Care”Are Eligible to Receive Medicaid & EPSDT? All children in foster care who qualify for Title IV-E foster care payments automatically qualify for Medicaid. See Fla. Admin. Code Rule 65A-1.703(1)(b); ESS Public Assistance Policy Manual, Section at: & CF Operating Procedure No available at: Children in Emergency Shelter; See Fla. Admin. Code R. 65A-1.703(1)(b) & ESS Policy Manual Section Foster Care Youth (ages 16-18) in Independent Living Situations; See (9), Fla. Stat. Youth ages who are exiting foster care and meet the requirements in s (5), Fla. Stat.

What Services Are Covered Under EPSDT? Screening – Regular periodic screens, including medical, vision, hearing and dental Treatment – Any Medicaid covered services necessary to “correct or ameliorate” a diagnosed physical or mental condition, whether or not the state covers these services for adults. Don’t be mislead by Florida’s name for the EPSDT program- the “Child Health Check-Up Program.”

What are Medicaid Covered Services? All services (including both mandatory and optional services) listed in the Medicaid statute, see at 42 U.S.C. §1396d(a). This includes, for example: – Personal care services – Private duty nursing services – Dental services – Medical supplies and equipment – Speech, occupational & physical therapies – Inpatient psychiatric hospital services for persons under 21. – “other diagnostic, screening, preventive and rehabilitative services, including medical or remedial services recommended for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level.” 42 U.S.C. § 1396d(a)(13)

Medicaid Covered Services, cont. Note: When state service definitions and limitations conflict with federal law, federal law supercedes state law. – Example: C.F. v. Department of Children & Families, 934 So. 2d 1,6 (Fla. App. 3 Dist. 2005) Holding that the hearing officer improperly interpreted the state definition of “personal care” as limited to services provided in the recipient’s home since federal Medicaid law authorizes these services in locations outside of the home.

What Services is the State Likely to Deny under EPSDT? “Habilitation” services – Habilitation services incorporate elements of training, and are for the purpose of developing the functional abilities of persons with developmental disabilities; – Under federal law, these services are available under a Home and Community Based Medicaid Waiver; – In Florida, these services are covered under the Developmental Disabilities Home and Community Based Services (DDHCBS) program administered by APD.

DDHCBS Waiver Unlike EPSDT services, these are not “entitlement” services and there is a long waiting list for placement on this waiver; However, under state law, (§ , Fla. Stat.) children in foster care must be moved to the top of the waiting list for DDHCBS services. Further, many services under the DDHCBS program must be available for children under the EPSDT program (e.g. personal care, nursing, durable medical equipment); – Advocacy Tip: If you have clients on the Waiver waiting list, (1) make a request to the Area Medicaid office for any services that should be covered under the EPSDT program; (2) request a fair hearing if the services are denied or if you do not get timely response.

How Do Advocates Avoid EPSDT Exclusions? Make service requests to the Medicaid agency which “fit” under one or more of the covered services listed at 42 U.S.C. 1396(d)(a). – For example, a child with serious mental illness needs a bundle of services referred to as “wrap-around” services in order to live in a home-based setting. “Wrap-around” services are not listed as a covered service under federal Medicaid law. – However, various service needs can be fit within the benefits listed in § 1396d(a), and as interpreted by previous CMS statements. Examples: targeted case management, behavioral assessments, crisis intervention team services, a behavioral aide to assist at home and school, independent living skills training, counseling, psychology and therapy services.

“Medical Necessity” & EPSDT Under Florida Medicaid rules, all services must be “medically necessary” (MN) in order for Medicaid to cover these services. – See Fla. Admin. Code R. 59G (166)for the state MN definition. – The MN rule is incorporated into all Medicaid provider handbooks used by providers to determine the amount, duration and scope of services that Medicaid will cover.

Medical Necessity & Prior Service Authorization Some services must be “prior authorized” by Medicaid or a third party vendor (e.g. Maximus, First Health) before a health care professional initiates the services or before the service will be covered. Third party reviewers apply the state’s medical necessity definition to determine if services will be authorized.

Florida’s “Medical Necessity” Definition & Medicaid HMOs The MN definition is included in all AHCA contracts with Medicaid HMO providers; – It is the yardstick that HMOs use to determine the need for services for all Medicaid recipients including those 0-21.

Compare Federal & State Medical Necessity Standards – The federal EPSDT standard is much broader; Services necessary “to correct or ameliorate” a physical or mental illness or condition are covered; This standard includes “maintenance services” such as personal care and in-home nursing services needed to keep children with disabilities out of institutions. – The state medical necessity rule is more restrictive; Services must be “necessary to protect life, to prevent significant illness or significant disability or to alleviate severe pain”

The State’s Medical Necessity Rule Is Unlawful As Applied to Children & Youth (0-21) C.F. v. DCF, 934 So. 2d 1 (Fla. App. 3 Dist. 2005) holds that the state’s application of its medical necessity rule to determine the level of personal care services needed by a child violates federal Medicaid EPSDT law.

Behavioral Health Care Child Welfare Prepaid Mental Health Plan: The state has contracted prepaid mental health plans (PMHPs) with provide mental health services to most children and adolescents up to age 18 who have an open case for services as identified in the HomeSafeNet database and are enrolled in MediPass. – Children excluded from the plan: those in Medicaid HMOs, Statewide Inpatient Psychiatric Programs (SIPP) and those receiving behavioral health overlay services (BHOS). – Non-covered services: residential treatment, prescriptions, suitability assessments, drug or alcohol services.

Behavioral Health Care Lots of potential legal/advocacy issues: – PMHP is applying Florida’s state definition of “medical necessity” as part of its pre-authorization process. Is this causing improper denials of services? – Is the pre-authorization process causing delays in the provision of care? – Are recipients being properly notified of their appeal rights when services are denied, suspended or terminated? – Is there an adequate supply of providers to meet the mental health needs of foster care children? – Are dually diagnosed children (e.g., children with autism) getting needed behavioral services?

Therapies In July 2007, AHCA agreed to contract with two managed care companies to “manage” physical, occupational, respiratory and speech therapy services for Medicaid children under 21 who are not enrolled in a Medicaid HMO. The vendors will create a provider network of therapists. Therapists will be required to submit documentation of the need for services and get prior authorization.

State Obligations Under EPSDT EPSDT services cannot be capped. – Coverage limitations (e.g., limits on visits, monetary limits), applied to adults cannot be applied to recipients under 21. There can be no waiting lists for EPSDT services. “Optional” services never made available to adults must be available to recipients under 21 if necessary to “correct or ameliorate” a physical or mental condition. There can be no charge for EPSDT services.

State’s Obligations Under EPSDT Rule 65C , F.A.C. requires each district to develop a health care plan “to ensure that initial and on-going health services are provided to foster children. – The plan must include procedures to ensure that each child gets an EPSDT screening within 72 hours after placement in shelter status. – Needs identified “will be met through Medicaid services, to the extent that services are covered and providers are available.”

State Obligations Under EPSDT Under state rule, (65C , F.A.C.) the “services worker” (SW) must ensure that tasks and services necessary to meet the child’s physical and mental health needs are documented in the case plan; The SW must also ensure that there are referrals and follow-up for medical and mental health care including: – an EPSDT screening at the time of removal and according to the periodicity schedule. – A referral within 7 days of removal for a comprehensive behavioral health assessment (CBHA) for any child in “out of home care” – Any assessments, evaluations and treatment necessary for physical and/or mental health conditions. – Mental health service needs identified in the CBHA must be implemented within 30 days or if not, documented in the case file the reasons why. “The SW shall ensure that the services begin as soon as possible.”

What Can Advocates Do When EPSDT Services are Denied, Reduced, Terminated or Delayed? Recipients have the right to notice and the opportunity for a fair hearing 42 C.F.R et seq. – They also have the right to continued services if this is a termination, reduction or suspension of an ongoing service and an appeal is filed within 10 days of written notice. For children, most service denials, reductions and terminations are potentially subject to challenge because Medicaid (and Medicaid HMOs) are still using the state’s overly restrictive medical necessity definition.

A Road Map for Child Advocates Seeking EPSDT Services Identify the services needed and “fit” the services into one of Medicaid’s covered services under federal law; Make sure a treating professional has recently prescribed the needed service and obtain copies of this documentation; Identify a health care professional, preferably the treating physician, who can substantiate the need for the services through a letter and ideally through testimony if a hearing is necessary; Write the AHCA area office and the managed care plan (if the child is enrolled in one) requesting the services. If the child is in the Waiver program, ask the waiver support coordinator to make this request to the AHCA area office as well.

Questions for GALS Can GAL request a Medicaid fair hearing on behalf of a child in care? Do GALS need to seek orders from the juvenile court authorizing them to file a Medicaid appeal (hearing request) on behalf of a child in care? Can GALS sign HIPAA release?

Contact FLS for Assistance – Anne Swerlick – OR – Miriam Harmatz – (305) ext