Skilled Nurses in Schools: IDEA at Work
by James E. Murray
This article first appeared in the May, 2000 CARING magazine
Home care agencies have an opportunity to create a new revenue stream while helping disabled children receive their education within schools, instead of at home, through the Individuals with Disabilities Education Act. This article examines the law itself, related court cases, problems with implementation, and implications for home care providers. Home care agencies must demonstrate to schools that they can deliver the services the schools need to supplement their nursing staffs under IDEA.
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. Section 1400, et seq.; 34 C.F.R. Section 300.1, et seq.) is not new legislation but a compilation of several pieces of legislation going back to 1975. The title of the Act tells its purpose; yet, it required a United States Supreme Court interpretation to clarify the responsibilities of school districts to provide skilled nursing care to disabled children.
The purpose of the law is to:
In striving for these goals, IDEA has a history culled from other laws with similar intents:
It is clear that the overall goal is to improve care of those less fortunate. But the reasons are not just charitable or moral. Congress wants to place greater emphasis on improving student performance and ensuring that disabled children get a quality public education. Again, from its legislative history, the statistics tell a touching tale.
More than 1 million disabled children were denied education prior to the passage of IDEA. Today, children with developmental disabilities in state institutions have declined by nearly 90%. There has been a tripling of the number of disabled children in post-secondary education and the unemployment rate for disabled individuals in their twenties is half their older counterparts.
Yet, we still have a long way to go. Congress wants to assist, through IDEA, the states to implement early intervention programs (under age 3) for disabled children and support transition of these very young children to preschool. The intent is to identify needs early on, at birth if possible, and then schools can give services to help these children "catch up."
IDEA has two components: Part B and Part C. Part B is for children older than the age of three; Part C is for children under the age of three. Parts B and C have different regulations and billing requirements. A key point is that IDEA can serve the nonschool-age child with disabilities to help "catch up" to his/her peers. It allows an evaluation of the disability of the child and the impact on learning. For example, a child with speech impediments (perhaps due to a tracheostomy) can receive an IDEA evaluation to determine what can be done to assist that child's development and then provide those services. That, at least, is the theory; the reality is that most school systems are not aware of their responsibilities. No doubt, part of this is due to the newness of the law.
Who is eligible for IDEA services? All "disabled" children, and the definition is very broad. Besides specific categories of disability, the definition includes those children who, because of other health impairments or learning disabilities, require special education or related services. In other words, if the child can be helped by special education and its related services then the child is disabled. It is the interpretation of "related services" in the definition of "disabled child" that is of interest to home care administrators. The definition at law is:
The "related services" definition also is very general. It is restrictive only regarding physician services, as they must be provided for diagnostic purposes.
This definition is broad, encompassing nursing and therapies. Nursing services were disputed in litigation as part of the "related services" and further argued that they were part of the restricted "medical services" listed above. Again, medical services only have to be given to the extent of diagnosis and, if nursing is part of this, then nursing can be restricted. It was the interpretation of "related services" and nursing care that was the subject of the Garret F. v. Cedar Rapids decision discussed below.
The school district is the provider of care and must provide or arrange for the provision of the care. This means contracting with outside parties, for the most part, because most schools will already have the school nurse committed to other activities. Therefore, more personnel must be obtained for the therapies or intensive nursing needs of disabled children.
If the school district can, it should bill Medicaid as a provider through an "interagency" agreement. That is, the state Medicaid and state Department of Education must establish an internal agreement to allow billing by the individual school districts to Medicaid. Most states do not have these interagency agreements in place, which results in the schools being unable to bill Medicaid. Thus, the school districts currently absorb the costs of care. This fact creates a motivation in the school districts to deny care at the front end on the Individual Education Program (IEP) or the Individual Family Service Plan (IFSP).
Under Part B, the school develops an IEP (Individual Education Program) for the student. Services that are defined on the IEP are delivered to the student. This is the equivalent to the Plan of Treatment in home care. If a school then wishes to deny care without allowing appeal rights, the school merely deletes the service from the IEP, explaining to parents that the school does not offer the service. Few parents will know to demand the inclusion of the service, and if refused, to demand a denial letter on the services to allow appeal rights.
Under Part C, age three and under, the school develops an IFSP (Individual Family Service Plan). This works the same way as the IEP. Few school districts are serving children under the age of three for many reasons, including lack of information both to parents and schools, lack of money, and, perhaps, lack of interest. Because these children are not yet in school, the school-district administration may not be sensitive to this population's needs.
The key to the "related service" is in the IEP or IFSP, where the services are defined. Parents have to be educated as to their rights in this area. The disabled community has only begun to catch on to this benefit. Resistance from school districts or the state itself is a major factor. In at least one state (Pennsylvania), a federal lawsuit has been filed to force the state to develop the interagency agreement that is required. In other words, the state is being sued to do what it is obligated to do and, in the process, the state only hurts disabled children by resisting. Moreover, the failure to have the interagency agreement forces schools to cover all costs when, under Medicaid, there is a federal match that helps to alleviate the state's financial burden.
The General Accounting Office (GAO) issued a report and members of the Senate Finance Committee held a hearing (June 17, 1999) on problems associated with the increasing costs of IDEA as unrelated to services. GAO's report is entitled, "Medicaid: Questionable Practices Boost Federal Payments for School-Based Services" (www.gao.gov; report number HEHS-99-148).
Highlights of the GAO Report include the following:
William Scanlon, Director of Health Financing and Public Health Issues testified at the hearing and clarified several issues. One issue was the definition of allowable administrative costs, which included: conducting outreach for Medicaid, helping applicants complete Medicaid enrollment forms, and arranging appointments with various providers of medical and screening services. Part of the IDEA problem is its lack of clear communication regarding allowable administrative expenses from the central office of the Health Care Financing Administration (HCFA) to the regional offices. HCFA also lacks consistent oversight of its Regional Offices, which creates irregular interpretation of policy.
What this means for home care is that there are regional variations in coverage and allowable administrative expenses. This has allowed third-party billers to abuse the system, according to the report. In the end, HCFA wants outreach and will permit administrative expenses to identify, refer, screen, and enroll eligible children for services.
Home care agencies can help school districts by identifying the services they can offer. Agencies can offer to do the IDEA-related billing for the schools. Schools do not know how to do health care billing, in general, and need help in billing Medicaid and/or private insurance, specifically. Agencies may wish to propose a package of services and billing assistance in exchange for a percentage or charge per bill submitted.
Home care agencies must determine the status of the interagency agreement between the state department of education and the Medicaid department. If one is in place, then agencies should find out about billing codes from the Medicaid department and/or the HCFA regional office. Clearly, the critical factor is the interagency agreement to bill Medicaid. However, private pay is different and can be billed, too. Home care agencies may process the claim the same way a private-pay patient's claim would be processed. It is important to remember, though, that the provider is technically the school and the agency is merely serving as a billing-contractor.
Obviously, the goal is to show the school district that home care agencies can deliver the services the school needs to supplement its nursing staff. Moreover, the agencies should demonstrate that they can perform the billing for the school to all payor sources. This can then serve as another revenue stream for the HHA. There are nuances to the billing, depending upon the age of the child as under Parts B and C.
IDEA regulations make a distinction between Parts B and C that affects billing. The major difference is that, for Part C the school has the discretion on billing, and for Part B the parents can control whether the insurer is billed. Even if the insurer is not billed, the school district must still provide the services to guarantee FAPE.
Garret F. v. Cedar Rapids School District
The United States Supreme Court handed down a decision affecting the rights of disabled school children to receive nursing care. Cedar Rapids Community School District v. Garrett F., No. 99-1793, decided March 3, 1999, involved the interpretation of IDEA. The Supreme Court decided that ventilator-assisted children qualify for nursing care paid under IDEA.
The case involved a child who was injured in a motorcycle accident resulting in paralysis from the neck down. His mental capacity was unaffected. He is ventilator dependent, needs bladder catheterization, suctioning of the tracheotomy tube, and equipment monitoring. In short, his needs are the type commonly performed by skilled nurses.
The issue was whether Garret's school district would have to pay for the care as part of his education. The legal issue centered on whether, under IDEA, nursing care is a supportive service that provides disabled children with access to an appropriate public education or if it is part of the definition of "medical services." Medical services do not have to be covered by the school district under IDEA, except to the extent that they involve diagnosis and evaluation. The interpretation advanced by the family and adopted by a majority of the Court was that medical services involved physician services and not nursing services.
The family argued that the services that Garret needed were provided already by school nurses to different children. It is just that Garret requires all of them and more of them. In effect, he requires his own nurse, due to the ventilator and the need for immediate nursing response. Furthermore, the law itself allowed for it.
The dissent, written by the Honorable Clarence Thomas, reasoned that nursing care is included in medical services. However, his analysis is in conflict with regulations published by the Department of Education that separated the two services and the Department advocated for the interpretation finally adopted by the Court.
IDEA now presents as a new benefit source for the care of disabled children. Problems with its implementation in some parts of the country will make it challenging for families to access the care. More questions will, no doubt, have to be answered by the courts. n
About the Author: James E. Murray, Esq. is Deputy Counsel of the National Association for Home Care's Center for Health Care Law. He can be reached at 202/547-5262, or via e-mail at jem@nahc.org.