The state’s child welfare system is in great need of reform. A vital piece of ensuring reform is effective is to prevent children from entering the system unnecessarily. LB 1063 is intended to address gaps in Medicaid services for children, which needlessly push children into the system to obtain the mental health services they need. Indeed, LB 1063 makes certain the Medicaid program plays its important role in providing mental health services to children without the unnecessary breakup of families forced to relinquish custody.[DDET LB 1063 Testimony]
Chairwoman Campbell and Committee Members
Health and Human Services Committee
RE: Support for LB 1063 Adopt the Children’s Health and Treatment Act
Dear Chairwoman and Committee Members:
My name is James Goddard and I am an Associate Director of the Low Income Economic Opportunity Program at the Nebraska Appleseed Center for Law in the Public Interest. We are a non-profit, non-partisan legal advocacy organization that works for equal justice and full opportunity for all Nebraskans. I am here today to testify in favor of LB 1063.
As the Committee is well aware, the state’s child welfare system is in great need of reform. A vital piece of ensuring reform is effective is to prevent children from entering the system unnecessarily. LB 1063 is intended to address gaps in Medicaid services for children, which needlessly push children into the system to obtain the mental health services they need. Indeed, LB 1063 makes certain the Medicaid program plays its important role in providing mental health services to children without the unnecessary breakup of families forced to relinquish custody.
LB 1063 aims to address the systemic problems that have been caused by the Nebraska Department of Health and Human Services’ (Department) policy choices. These choices have taken Nebraska out of compliance with federal law, and create liability for the state.
The Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Program
EPSDT is a special set of Medicaid laws that are intended to provide a comprehensive package of preventative screening, diagnosis and treatment for children’s physical and mental health conditions. Under EPSDT, states must cover every type of medical assistance that is allowable under the Medicaid Act, which includes more than 29 broad types of services.[i] Importantly, under EPSDT, states must provide all services that are “[n]ecessary…to correct or ameliorate” a child’s physical or mental condition.[ii]
LB 1063 reaffirms EPSDT’s medical necessity standard
According to the correct and ameliorate standard required by federal law, the Department must provide necessary treatment for children, whether it cures or simply makes a disorder better or more tolerable.[iii] In making such a determination, there is a presumption in favor of the medical judgment of the treating physician.[iv]
But, the Department does not apply this standard.
Instead, the Department applies broad exclusions based on diagnosis and age, without consideration of individual circumstances.[v] Moreover, the Department systematically overrules the recommendation of the treating provider. The rates at which treatments are denied on secondary and tertiary reviews are alarmingly high.[vi] Furthermore, the Department has a policy or practice that Medicaid will only cover problem focused, short-term treatment, rather than provide long-term treatment.[vii] For example, the Department may deny children services because they have not improved significantly enough over a period of time.
In short, when the Department determines whether to grant or deny a service, it is not applying the right standard, children are being denied needed treatments, and parents are faced with the devastating decision of relinquishing their children into the child welfare system so children get the services they need.
LB 1063 would correct this by clearly directing the Department in state statute to follow the appropriate medical necessity standard that is mandated by federal law, ensuring children get all treatments that are necessary to correct or ameliorate their condition, without arbitrary timelines for treatment that are unrelated to the child’s progress or wellbeing. And when deciding whether the treatment is necessary, LB1063 instructs the Department to apply the presumption in favor of the medical judgment of the treating provider, as required by Eighth Circuit precedent.
LB 1063 prohibits broad exclusions based on diagnosis and age
Under EPSDT, all limitations on eligibility and the extent of available medical assistance must be reasonable and consistent with the objectives of EPSDT.[viii] Moreover, federal law indicates that states may not arbitrarily discriminate on the basis of diagnosis or condition.[ix]
Yet, Department policies and practices unreasonably limit services and discriminate on the basis of diagnosis. According to several regulations, services for developmental disabilities and Pervasive Developmental Disorders, such as Autism, are not covered for any level of care regardless of whether the treatment is deemed medically necessary by the treating provider.[x]
Such limitations are not reasonable and arbitrarily discriminate on the basis of diagnosis, because children with these diagnoses can benefit from the treatments permitted under the Medicaid Act.
Additionally, the Department has a policy or practice of denying children behavioral health services if they are aged 5 or younger. The reasons for these denials are typically because the type of treatment is deemed by the Department to be “parent education” or “behavioral management.”
However, the types of medical assistance or services that would treat children with autism, or very young children, are medical assistance under federal law, and must be provide if they are necessary to correct or ameliorate the condition.[xi]
LB 1063 would ensure children are not denied needed services based on condition or youth by barring arbitrary discrimination on the basis of diagnosis or age.
LB 1063 requires an open and transparent process
Currently, the Department develops and applies “clinical guidelines,” which are used to determine whether a treatment is medically necessary and what level of care a child will receive.[xii]
However, these guidelines are not developed in an open or transparent manner. They are not promulgated pursuant to the Administrative Procedure Act (APA), and they can be changed overnight. Yet, these criteria are important in determining whether a child gets a service, and they should be developed in a public forum with public input.
LB 1063 would require that clinical criteria must be promulgated according to the APA, with notice and a chance to be heard.
For all these reasons, we respectfully urge this committee to advance LB 1063.
James A. Goddard
Associate Director-Staff Attorney
Low Income Economic Opportunity Program
402 438 8853 x108