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On December 20, 2005, the Ohio Department of Job and Family Services (ODJFS) heard public comments on the following proposed Healthchek rules: O.A.C. 5101:3-14-01, O.A.C. 5101:3-14-02, O.A.C. 5101:3-14-03, O.A.C. 5101:3-14-04, O.A.C. 5101:3-14-05, O.A.C. 5101:3-14-09. Healthchek is Ohio's Early and Periodic Screening, Diagnostic and Treatment (EPSDT) program. The Ohio Legal Rights Service (OLRS) provided the following testimony.
Ohio Legal Rights Service (OLRS) is an independent state agency mandated by both federal and state law to protect and advocate for the rights of individuals with developmental disabilities (DD), mental illness (MI), and other disabilities. In that role OLRS has represented children with disabilities for many years, in many forums. For several years OLRS has had concerns about the lack of access to needed services that are to be covered by Medicaid for eligible children under the federal mandates of Early and Periodic Screening, Diagnostic and Treatment (EPSDT). As you know, OLRS is now representing Medicaid eligible children in a class action lawsuit alleging that ODJFS has failed to meet its obligations under the EPSDT mandates.
This letter is written to comment on a series of proposed rules that govern Ohio's Healthchek program. Healthchek is Ohio's Early and Periodic Screening, Diagnostic and Treatment (EPSDT) program. There are numerous changes in the language of these rules. (Note: The public hearing notice on these rules indicates that the rules are being amended as a part of the five year rule process and that "no policy changes are intended in the amended rule". That is unfortunate, as policy changes are sorely needed.) However, the Healthchek system remains seriously flawed, and the changes do little, if anything, to address the concerns raised in the G.D. v Riley class action litigation.
Under the proposed rules the only way that an eligible child can access the EPSDT services is if the physician (or advanced practical nurse) conducts the screening in accordance with the rules and knows what additional diagnostic and treatment services are available under federal law, and knows how to access those services. For children with disabilities that scenario almost never occurs. These proposed rules do little to help.
The proposed Healthchek rules do nothing to establish a process for a parent or custodian of an eligible child to access medically necessary services that should be available under EPSDT. The proposed rules contain no reference to handling a parent's request for services under EPSDT. There is no reference to the appeal rights available under Medicaid when services are denied or the request is not acted on in a reasonable timeframe.
Parents have contacted us after they have requested services both from the child's doctor and from their county department of job and family services with no success. In some cases physicians have tried to access services for eligible children, with no success. Even letters sent to ODJFS requesting EPSDT services have not resulted in a determination of whether or not the service could be covered, let alone any guidance about how to access the service.
Lack of an application process translates into failure to provide needed services. No recourse, short of litigation, has been available to these children and their parents.
Medicaid eligible children have specific rights under EPSDT. Perhaps the most important right for children with disabilities is the right to diagnostic and treatment services. The proposed rules' allowance for coverage for diagnostic and treatment services is murky at best. Proposed rule 5101:3-14-05(E) appears to be an attempt by ODJFS to comply with federal law, while doing so in a way that no Medicaid recipient, or provider is likely to understand. Reference to Section 1905(r) of the Social Security Act is particularly blatant in this regard. (Note: Section 1905(r) is 42 U.S.C. 1396d(r) which is the entire federal statute governing EPSDT, itself cross references 1905(a) of the Social Security Act,. This section, which is 42 U.S.C. 1396d(a) lists the services that can be covered under EPSDT, which are arguably the services that ODJFS is referring to in its rule.)
Rules provide guidance to the public and to providers of services about the parameters of a program. They should not only provide the framework for how a law is to be implemented, they should be able to be understood by the agencies and providers that the department pays to provide the service.
If the department is serious about complying with federal law on the provision of diagnostic and treatment services the proposed rules must be revised.
OLRS would recommend the following language be substituted in 5101:3-14-05 E:
(E) . . . Covered diagnostic and treatment services for individuals under age twenty-one include:
"(E)(1)Diagnostic and treatment services within the scope Ohio's Medicaid state plan; and
(E)(2) Diagnostic and treatment services that are not in Ohio's state plan for Medicaid but that are listed services under federal Medicaid law found at 42 U.S.C. 1396d(a) as amended."
Our proposed language also eliminates the proposed rule's requirement for prior authorization by the department (and apparently by the Medicaid managed care program). We eliminate this reference because prior authorization is not included in federal Medicaid law on EPSDT. Prior authorization under the proposed rules is also futile as there is no clear way to know what services can be requested, no process by which to request them, no duty on the department to act on such a request, and no determination that triggers appeal rights for the recipient. Prior approval of the virtually thousands of needed services sought and provided under a correctly functioning EPSDT program would be a bureaucratic nightmare. Finally, it is unclear to OLRS what function a prior approval mechanism could perform, as the EPSDT program is an entitlement under federal law, and this lack of clarity is furthered by the failure of the rule to articulate a standard for review in the prior approval process.
If 5101:3-14-05 is changed as proposed by OLRS then the rules governing reimbursement must also be changed. Following the current maze of reimbursement leads to the conclusion that the only services that can be covered under EPSDT are those that are currently covered in Ohio's state plan (with the same limits on coverage adopted by Ohio in its state Medicaid plan). Proposed rule 5101:3-14-04 governs reimbursement for EPSDT services. Section (B)4 of this rule addresses Reimbursement for diagnostic and treatment services that are not otherwise specified by directing that billing be done in "accordance with rule 5101:3:1-60". That rule, governing Medicaid reimbursement, has an appendix that is nearly 400 pages long. Many of the billing codes for services in that Appendix that should be covered under a properly constructed EPSDT program are marked NC (for Not Covered).
Proposed rule 5101:3-14-05 again references the Medicaid reimbursement rule for the codes that may be used when services are provided as a part of "further evaluation, diagnosis or treatment following a healthchek (EPSDT) screening visit." The proposed rules never provide a method to access needed services that Ohio does not have in its Medicaid plan, but that can, and must be, provided under federal EPSDT requirements. The experience of OLRS and its clients is that such reimbursement is not available under the current system.
Ohio Legal Rights Service urges ODJFS to withdraw the proposed rules and amend them to conform to the requirements of the federal mandates on EPSDT. Until the rules clearly indicate the services available under EPSDT, and the process by which those services can be accessed, eligible children will continue to be denied their right to services that they need. OLRS would be happy to work with ODJFS to amend these rules.
Article posted December 2005