In this issue......
STATE CHILD HEALTH INSURANCE PROGRAM PROVIDES
HEALTH CARE TO UNINSURED LOW-INCOME CHILDREN
Program overview—the basics
Eligibility criteria
Available services
Cost sharing
SPECIAL FEATURES:
Bridges to better advocacy conference
Final section 508 regulations published
Proposed regulations-new “ticket to work”
Staff changes at National AT advocacy project
New criteria for medicare funding of aac devices - without the need to appeal
Will Medicare hearings soon be available by video teleconference?

STATE CHILD HEALTH INSURANCE PROGRAM PROVIDES HEALTH CARE TO UNINSURED LOW-INCOME CHILDREN

        Health insurance is a pressing issue for many families with limited income. This is especially true when the family has a child with a disability who needs assistive technology (AT) or other expensive services. The poorest of these children will qualify for Medicaid. What about uninsured children from families with income that is too high for Medicaid? The State Child Health Insurance Program (SCHIP) may be the answer.

        SCHIP was created by the Balanced Budget Act of 1997, Pub.L. 105-33, Title IV, § 4901(a), by adding a new Title XXI to the Social Security Act. The program requirements are found at 42 U.S.C. §§ 1397aa - 1397jj. The final SCHIP regulations, published on May 24, 2000 and effective June 23, 2000, are designed primarily to guide States in obtaining reimbursement under the program. 65 Fed. Reg. 33616.

        Initially, many had referred to SCHIP as the Child Health Insurance Program, or CHIP. However, by Section 704 of the Medicare, Medicaid and SCHIP Balanced Budget Refinement Act of 1999, Pub.L. 106-113, the Federal government is prohibited from using the terms Child Health Insurance Program or CHIP. Therefore, we will use the term SCHIP.

        There is a very helpful SCHIP web site established by the Health Care Financing Administration (HCFA), which administers SCHIP, located at www.hcfa.gov/init/children.htm. It contains a series of questions and answers which provide interpretive guidance about the program, copies of informational letters sent to the States, information about State implementation of SCHIP, and links to other helpful web sites.

PROGRAM OVERVIEW: THE BASICS

        The purpose of SCHIP is “to provide funds to States to enable them to initiate and expand the provision of child health assistance to uninsured low-income children in an effective and efficient manner that is coordinated with other sources of health benefits coverage for children.” 42 U.S.C.
§ 1397aa(a). The statute authorizes $40 billion over 10 years to be distributed to all 50 States and all U.S. Territories. Id. § 1397dd. It commenced with the 1998 fiscal year, which began on October 1, 1997. Id. § 1397aa(d). Like Medicaid, the program is optional, but as of October 1, 1999, every State and Territory was participating. Funds are allocated to each State based on a ratio which includes the number of uninsured low-income children and the total number of low-income children in the State.
Id. § 1397dd(b).

        To receive funding, a State must have an approved plan describing how the State will implement the program. Id. § 1397aa(b). However, “to provide States with the flexibility and time needed to develop their programs and to submit their child health plans,” HCFA published “reserved” rates for the 1998 and 1999 fiscal years, which became final once each State’s plan was approved. 65 Fed. Reg. 33621. The law requires that States ensure public participation in the design and implementation of the plan, as well as a method for ongoing public involvement. 42 U.S.C. § 1397gg(c).

            States have great flexibility in implementing their program. States may extend Medicaid coverage to children who are eligible for SCHIP, create a separate program, or create a combination of both. Id. § 1397aa(a). It is critical to obtain your State’s plan to determine the basic program structure, who is eligible, and what services are covered.

        The law provides basic guidelines which apply to all States. Each State’s plan must include a description of the following:

1. The actual child health assistance to be provided under the plan.
2. Eligibility standards, including those relating to the geographic areas to be served, age, income and resources (including any standards relating to spend downs and disposition of resources), residency, disability status (so long as any standard relating to such status does not restrict eligibility), access to or coverage under other health insurance, and duration of eligibility. Such standards may not discriminate on the basis of diagnosis.
3. Eligibility screening to ensure that only eligible children receive services under the program, that children found to be eligible for Medicaid are referred to that program, and that eligible American Indians are provided services.
4. Outreach to families of children likely to be eligible under the program, or under other public or private insurance programs, to inform them of available coverage and to assist them in enrolling their children in programs for which they are eligible.
5. Procedures for coordinating SCHIP with other public and private health insurance programs.
   Id. § 1397bb.

        States have great latitude in establishing eligibility criteria, including ages, geographic areas, income and resource rules, and duration of eligibility. Again, however, there are certain mandatory guidelines. Generally, coverage is limited to children under 19, who are not eligible for Medicaid or other health insurance, and whose family income is below 200 percent of the federal poverty level. However, children enrolled in a State-created insurance pro-gram, which was in place prior to July 1, 1997 and did not use any federal funds, will still be eligible for SCHIP. Id. § 1397jj.

        If a State had raised its Medicaid eligibility level above 150 percent of the poverty level before June 1, 1997, the State may raise the SCHIP eligibility standards to 50 percent above the current Medicaid income level. Id. § 1397jj(b)(1)(B)(ii)(I). However, the State cannot lower its Medicaid income and resource limits in an effort to make children inelig-ible for Medicaid and thereby eligible for SCHIP.
Id. § 1397ee(d)(1).

        Financial eligibility criteria must not operate to cover children in families with higher incomes without covering children in families with lower incomes. Nor can the eligibility criteria deny coverage to children with preexisting medical conditions. Id. § 1397bb(b)(1)(B). Finally, children who are “inmates” in a public institution or who are patients in an institution for “mental diseases” are not eligible for coverage. Id. § 1397jj(b)(2)(A).

        On July 1, 2000, HCFA announced criteria for SCHIP demonstration projects. States which have had at least one year of experience implementing SCHIP and have submitted all required reports are eligible. The State must also “provide assurances that it has met the primary purpose of SCHIP by expanding eligibility to low-income children” and “demonstrate that it is successfully reaching and enrolling eligible children.” One possible demonstration project can be to extend coverage “to low-income parents of the children they are enrolling in Medicaid and SCHIP.” July 31, 2000 letter to State health officials from Timothy M. Westmoreland, Director, HCFA, www.hcfa.gov/init/ch73100.htm.

        States may choose to deliver services in one of three basic ways: by expanding Medicaid; by creating a separate program; or by using a combination of both.

        A State may choose to extend Medicaid coverage to those children who would otherwise be ineligible for Medicaid. 42 U.S.C. § 1397aa(a)(2). In doing so, the State must provide the full range of services available to all other Medicaid eligible children. See State Children’s Health Insurance Program Q & A, HCFA, Question 6 (September 11, 1997), www.hcfa.gov/init/qa/q&a9-11.htm. This would include all the services available under Medicaid’s Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program. The EPSDT program mandates that States provide all medically necessary mandatory and optional Medicaid services. 42 U.S.C. § 1396d(r)(5). This means that the SCHIP Medicaid expansion program must cover the full range of Medicaid service categories that have been used to fund AT including, for example, the home health care (covering durable medical equipment), prosthetic devices, speech therapy, physical therapy, and occupational therapy categories.

        If a State chooses to create a separate SCHIP program, it has great flexibility in choosing the scope of services to cover. There are four basic options: benchmark coverage, benchmark-equivalent coverage, the preexisting State-based program in New York, Florida or Pennsylvania, or any other coverage package which is approved by HCFA as “appropriate.” Id. § 1397cc(a). Benchmark coverage must be equivalent to the coverage available to federal employees, State employees, or members of the largest commercial, non-Medicaid health maintenance organization in the State. Id. § 1397cc(b).

        Benchmark-equivalent coverage must be the “actuarial equivalent” of one of the benchmark packages. Id. § 1397cc(a)(2)(B). They must include, at a minimum, the following categories of services: inpatient and outpatient hospital services; physicians' surgical and medical services; laboratory and x-ray services; and well-baby and well- child care, including age-appropriate immunizations. Id. § 1397cc(a)(2)(A) and (c)(1). The State must also include the following optional services, if the benchmark package used by the State to determine “actuarial equivalence” includes them: coverage of prescription drugs; mental health services; vision services; and hearing services.
Id. § 1397cc(a)(2)(C) and (c)(2).

        States are free to provide coverage for benefits that are not listed in any of these categories. In fact, the scope of permissive services is very comprehensive, and clearly may include AT. Covered services may include the following [AT advocates - note items 12 and 14]:

1. Inpatient hospital services
2. Outpatient hospital services
3. Physician services urgical services
4. Clinic services (including health center services) and other ambulatory health care services
5. Prescription drugs and biologicals and the administration of such drugs and biologicals, only if such drugs and biologicals are not furnished for the purpose of causing, or assisting in causing, the death, suicide, euthanasia, or mercy killing of a person
6. Over-the-counter medications Laboratory and radiological services
7. Prenatal care and prepregnancy family planning services and supplies
8. Inpatient mental health services, other than services described in paragraph (18) but including services furnished in a State-operated mental hospital and including residential or other 24 hour therapeutically planned structured services
9. Outpatient mental health services, other than services described in paragraph (19) but including services furnished in a State-operated mental hospital and including community-based services
10. Durable medical equipment and other medically-related or remedial devices (such as prosthetic devices, implants, eyeglasses, hearing aids, dental devices, and adaptive devices)
11. Disposable medical supplies
12. Home and community-based health care services and related supportive services (such as home health nursing services, home health aide services, personal care, assistance with activities of daily living, chore services, day care services, respite care services, training for family members, and minor modifications to the home)
13. Nursing care services (such as nurse practitioner services, nurse midwife services, advanced practice nurse services, private duty nursing care, pediatric nurse services, and respiratory care services) in a home, school, or other setting
14. Abortion only if necessary to save the life of the mother or if the pregnancy is the result of an act of rape or incest
15. Dental services
16. Inpatient substance abuse treatment services and residential substance abuse treatment services
17. Outpatient substance abuse treatment services
18. Case management services
19. Care coordination service
20. Physical therapy, occupational therapy, and services for individuals with speech, hearing, and language disorders
21. Hospice care
22. Any other medical, diagnostic, screening, preventive, restorative, remedial, therapeutic, or rehabilitative services (whether in a facility, home, school, or other setting) if recognized by State law and only if the service is:
    A) prescribed by or furnished by a physician or other licensed or registered practitioner      within the scope of practice as defined by State law, or
    B) performed under the general supervision or at the direction of a physician, or
    C) furnished by a health care facility that is operated by a State or local government or is licensed under State law and operating within the scope of the license
23. Premiums for private health care insurance coverage
24. Medical transportation
25. Enabling services (such as transportation, translation, and outreach services) only if designed to increase the accessibility of primary and preventive health care services for eligible low-income individuals
26. Any other health care services or items specified by HCFA and not otherwise excluded. Id. § 1397jj(a).

        States may impose cost sharing charges, including premiums, deductibles and coinsurance, but the schedule for these charges must be made public. Id. § 1397cc(e)(1)(A). Any cost sharing income will reduce the State’s SCHIP appropriation, id. § 1397ee(c)(5), must not favor children of higher icome families over lower income families, id. § 1397cc(e)(1)(B), and may not be imposed for the preventive services of well-baby and well-child care, and age-appropriate immunizations. Id. § 1397cc(e)(2). Finally, if the State is operating a Medicaid expansion program, the Medicaid rules for cost sharing will apply. Id. § 1397cc(e)(4).

        There are additional limitations on the use of cost sharing based on family income. For families above 150 percent of the federal poverty level, cost sharing may be imposed on a sliding scale, based on income, but total cost sharing cannot exceed five percent of the family’s income per year. Id. § 1397cc(e)(3)(B). For families below 150 percent of the poverty level, cost sharing charges are limited to the Medicaid levels for noncategorically eligible individuals. Under Medicaid requirements, the permissible enrollment fees or premiums must be based on income and family size. The maximum premium is $19 per month. The maximum copayment is $3 for any service costing more than $50. State Children’s Health Insurance Program Q & A, HCFA, Question 28 (October 3, 1997), www.hcfa.gov/init/qa/q&a9-11.htm. Additionally, the maximum deductible is $2 per month and the maximum coinsurance rate is five percent of the cost of the service. English, Abigail and Madlyn Morreale, The New Children’s Health Insurance Program: Major Provisions and Early Lessons, ABA Center on Children and the Law, www.abanet.org/child/chipfinal.html.

CONCLUSION

        An increasing number of families with low and moderate income are uninsured; many of them include a child with a disability. Your State’s SCHIP program may provide funding for health-related services to the children of these uninsured families. In many cases this funding will pay for expensive items such as AT. If you have questions about SCHIP, contact Ron Hager at the National AT Advocacy Project (716-847-0650 ext. 225 or rhager@nls.org).

        For years, the only way to obtain Medicare funding for an augmentative and alternative communication (AAC) device was to take an appeal to an administrative law judge (ALJ). To date, every known appeal that went to an ALJ resulted in an award of funding (approximately 10 winning decisions as of the end of 2000). That reality created at least three problems: first, without a prior approval system for most Medicare recipients, many individuals were not able to purchase the device (or have a vendor provide the device and “accept assignment”) in order to start the application and appeal process; second, even if the individual was able to appeal, there were few advocates or attorneys, nationally, who were willing to handle these cases; and third, exhaustion of appeals to get to the ALJ level and obtain an ALJ decision often took two years or more.

        Following pilot projects in Kentucky, Texas and Iowa, the Social Security Administration (SSA) has issued proposed regulations that would make video teleconference (VTF) hearings available in the service area of a Social Security hearing office when the Associate Commissioner of the Office of Hearings and Appeals “determines that hearings can be conducted more efficiently in that area by video teleconferencing than by conducting traditional, in-person hearings where all participants are at the same location.” Under the proposed regulations, appellants have the absolute right to opt for an in-person hearing. The proposed regulations appear in the January 5, 2001 issue of the Federal Register, 66 Fed. Reg. 1059, with comments due by March 6, 2001. Since Medicare hearings are held through the same hearing offices and by the same Social Security administrative law judges (ALJs), we expect that these new regulations, when final, will apply to Medicare hearings involving denials of AT. See, e.g., 42 C.F.R. § 405.701, providing that the Social Security regulations governing ALJ appeals govern Medicare hearings unless the Medicare regulations state otherwise.

FINAL SECTION 508 REGULATIONS PUBLISHED

On December 21, 2000, the Architectural and Transportation Barriers Compliance Board, known as the Access Board, issued final accessibility standards for electronic and information technology covered by section 508 of the Rehabilitation Act Amendments of 1998. 65 Fed. Reg. 80499.

Section 508 covers individuals with disabilities, including both federal employees and private individuals, who seek access to and use of information and data that is otherwise available to all federal employees and private citizens from federal agencies. A detailed analysis of these new regulations, and their application to AT issues, will appear in an upcoming newsletter and will be addressed at the National AT Advocacy Project April conference in Austin, Texas.

        The “Ticket to Work and Self-Sufficiency Program,” authorized by the Ticket to Work and Work Incentives Improvement Act of 1999, creates an alternative mechanism for funding vocational rehabilitation services for individuals who receive Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) benefits. SSI and SSDI recipients will be able to use these new “tickets” as vouchers to purchase services from “employment networks,” which are expected to include a wide range of private service providers. The program is to be phased in between 2001 and 2004, with 13 states selected for initial implementation of the ticket program during 2001. [The 13 states are: Arizona, Colorado, Delaware, Florida, Illinois, Iowa, Massachusetts, New York, Oklahoma, Oregon, South Carolina, Vermont and Wisconsin. See SSA’s Office of Employment Support Programs web site, www.ssa.gov/work.]

        On December 28, 2000, the Social Security Administration issued proposed regulations to implement this program, with comments due no later than February 26, 2001. 65 Fed. Reg. 82843. Disability advocates have expressed concern that the funding formulas set forth in the proposed regulations will discourage employment networks from serving individuals whose services will be costly, including those individuals who will need AT in order to succeed in employment.

STAFFING CHANGES AT THE NATIONAL
AT ADVOCACY PROJECT

        Bill Mastroleo, an attorney with more than 25 years experience at Neighborhood Legal Services, will officially retire in January 2001. Bill has worked on our State and National AT Projects, and as our Client Assistance Program attorney. In recent years, Bill won several AT-related Medicaid appeals in state court. He will be missed. The good news is that Bill will continue to serve as our part-time webmaster.

        Sandy Krawczyk started with the Project in December as our secretary and desktop publisher. If you have document requests or seek information about our April conference in Austin, contact Sandy (716-847-0650 ext. 271, skrawczyk@nls.org). Paralegal, Tamara Bloom (ext. 267, tbloom@nls.org), continues with the Project and will work with Sandy to make our April conference in Austin a success. Project attorneys, Jim Sheldon (ext. 262, jsheldon@nls.org) and Ron Hager (ext. 225, rhager@nls.org), will continue as our primary providers of technical assistance and training, as well as writers for our newsletter and other publications.

Join Us for Our Fifth Annual
National AT Advocacy Project Conference

Pre-conference for Newer Advocates held on April 4th (Wednesday)

Sheraton Hotel, Austin, Texas (in the heart of downtown)
All pre-conference and conference sessions at hotel site.

Program Highlights:

• Special Education: Handling the Impact Case
• The Fair Housing Act
• Medicaid and Medicare: A Year in Review
• Practical Hearing Skills: For the Beginner and Seasoned Advocate
• A Primer on AT-Related Policy Work
• Private Insurance: Individual and Systems Advocacy
• Access to Information Through AT: Section 508 and Other Anti-Discrimination Requirements
• Ethical Dilemmas for the Disability Advocate (Get Your Ethics Credits!)
  Continuing Legal Education Approval Pending

2 DAY Conference, 3 nights at Sheraton Hotel (double occupancy), continental breakfasts, lunches, Thursday night dinner & entertainment, and all conference handout materials

PAYMENT & REGISTRATION Received by 1/31/01 - $395
                                                       Received by 2/20/01 - $425
                                                       Received by 3/15/01 - $455
                                                       Received after 3/15/01 - $475

Update on The National Assistive Technology Resource Library

        We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions and other administrative documents. We also have indexed more than 400 documents from more than 100 pending and decided court cases. All documents are available through our AT Resource Library. Please send us your hearing decisions, briefs and other documents involving AT.

Please send information to:
FAX: (716) 847-0227                                     TEL: (716) 847-0650
ATTN: Sandy Krawczyk                                  e-mail: atproject@nls.org
Neighborhood Legal Services, Inc.                   TDD: (716) 847-1322
Ellicott Square Building                                     Web Page: www.nls.org
295 Main Street, Rm 495
Buffalo, NY 14203

FINAL SECTION 508 REGULATIONS:
ACCESSIBILITY STANDARD FOR ELECTRONIC AND INFORMATION TECHNOLOGY

NOTE: The AT Advocate is issued bi-monthly

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