By James E. Murray, Esq., Center for Health Care Law
IDEA is a statute concerning the education of disabled children. Its intent is to mainstream disabled children while ensuring a free, appropriate public education. This may require, for a disabled child, levels of care not normally available in a school setting. That care is defined in a plan or program created for the specific child by the school. The school then provides the services to mainstream the disabled child into the classroom. These services can include, for example, one-on-one skilled nursing, therapies, and equipment (eyeglasses or hearing aids).
IDEA has two parts, B and C. Part B pertains to children age three and older, Part C pertains to children from infancy to age three. Under Part B, an Individual Education Program (IEP) is created defining the special education needs of the child. Under Part C, an Individual Family Service Plan (IFSP) is created that also defines needs. The IEP or IFSP is equivalent to the "plan of care" in home care. Without these documents no services can be provided. There are differences between the regulations of Parts B and C that may affect payer sources.
States and school districts are at different levels of compliance with IDEA requirements, and some school districts may not have these programs in place yet. Meeting IDEA's goals will undoubtedly become more challenging as more disabled children are mainstreamed into society and more technologically-dependent persons leave home.
Home health agencies (HHA) that provide skilled care, nursing, and therapies to disabled children could be affected by IDEA. IDEA requires schools to become providers of services such as nursing, therapies, social work, and psychological services. Schools may have their own staffs provide care or may contract with an HHA to ensure continuity of care from home to school. Some schools may allow the provider agency to continue with its patient in the school rather than try to seek new staff to meet the child's needs. But the law does not require continuing service by the same provider. An HHA may find that it must bill two parties for a child: the primary insurer (private pay or Medicaid) and a school district.
The Department of Education (DoE) is the regulatory agency responsible for the the IDEA. DoE's mission in this area is to ensure an education for disabled children, to some extent, regardless of the payer source. This causes confusion in payer sources because of competing interests: access to a truly free education versus increased insurance costs for the child/family. DoE has written its regulations to strive for the free education without copays, deductibles, or even the risk of a future premium increase.
The school district is responsible for providing care as defined in the IEP or IFSP. Under Part B (over age three), the IEP can include all appropriate special educational services but also "related services," which are "... transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation including therapeutic recreation, social work services, counseling services including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child ..." (20 U.S.C. Section 1401).
For Part C (under age three), the services are similar to the above: "family training, counseling and home visits, special instruction, speech-language pathology and audiology services, occupational therapy, physical therapy, psychological services, service coordination services, medical services only for diagnostic or evaluation purposes, health services necessary to enable the infant or toddler to benefit from the other early intervention services, social work services, vision services, assistive technology devices and assistive technology services, and transportation" (20 U.S.C. Section 1432). These services are given to the extent necessary to enable the special education to take place.
In other words, if nursing is needed in the home to assist the audiologist and if that nursing is already present pursuant to a care plan, it is doubtful that nursing will be included in the IFSP. This is because the nursing is in the home regardless of whether the audiology is provided under the IDEA. This is different from the school setting where nursing may not be able to be transferred from home to school; and, then it would be included in the education plan.
In addition to federal funding provided to the states for IDEA services, the school districts are able to bill for skilled care. Under Part B (age three and older), the regulations allow Medicaid to be billed when an interagency agreement is available. The school can bill private insurance only with parental consent (34 C.F.R. Section 300.142). For Part C (age three and under), the school district can bill a private insurer or Medicaid (34 C.F.R. Section 300.301). The problem for most states is that the interagency agreement to bill even Medicaid is not in existence. As a result, many school districts currently provide the care and cover the costs; or, sometimes, avoid providing the care by excluding it from the IEP. An interagency agreement at the state level between the state DOE and Medicaid is crucial for the local school district to get reimbursed by Medicaid.
Disability rights groups have sued states to force the interagency agreements because they are a federal requirement. In Kellner, et al. v. The School District of the City of Philadelphia, et al., the Pennsylvania Department of Public Welfare is attempting to defend its delay of the interagency agreement. Meanwhile, disabled school children in Pennsylvania receive reduced services.
For schools to be able to bill private insurance, the parents must first consent to the billing (34 C.F.R. Section 300.142(f)). (This applies to Part B, the over age-three child.) The regulations are written in such a way that IDEA services cannot be denied even if the parents refuse permission to bill. The intent is to obtain a free education for the child and if any cost could jeopardize it, all costs are to be absorbed by the school. The costs implied here are more than just copays and deductibles. If the billing by the school has the consequence of even indirectly increasing the policy's premium, then the parents can refuse consent to bill. This restriction does not exist under Part C of IDEA.
That case, decided March 3, 1999, held that skilled nursing care must be provided by a school district to a trached, ventilator-dependent boy under IDEA. The issue was whether nursing care was part of 'medical services' that only have to be given to the extent necessary for diagnosis. The Court held that nursing care is separate from medical services and must be provided at levels sufficient to allow a free, appropriate public education even if this means one-on-one care.