Letter Sent To Legislators About Day Treatment Centers Raises Concern About Student Data Privacy

The News Journal article on what would have amounted to closure of Delaware day treatment centers until the State of Delaware reversed course mentions an email sent to legislators about the situation.  But the article by News Journal reporter James Fisher only touched on part of the email.  I want to give credit to Fisher for what was undoubtedly a confusing day with so much changing on this story.  Several legislators forwarded this email to me and I feel it is something the public deserves to see.  What concerns me are some of the new treatments that will be provided in schools.  These may not be covered under the HIPAA law for medical privacy if they take place in an educational setting.  I haven’t done enough research (yet) to determine how effective these treatments are for patients, but what are they taking the place of?  Is this a question of Medicaid funding and federal mandate or what is best for the outcomes of the children and teenagers in getting the best care possible?

Before I get to the email sent to the legislators, the News Journal corrected the article since the original one from noon today.  In the original, it cited a representative from Indian River School District who stated all Delaware Superintendents received an email on August 26th notifying them of the upcoming Medicaid changes with day treatment centers.  They took out that part, verified they (James Fisher) saw the email, but added this in:

“I’m not aware of any other place for them to go at this point,” said Bruce Kelsey, executive director of Delaware Guidance Services, which serves 24 children at a time in Kent and Sussex counties, in an interview hours before DSCYF sent the legislator letter.

His organization, he said, was preparing to have to re-assign or lay off employees who worked in day treatment.

“It’s heartbreaking, of course. It’s very tough. It’s been a good program,” Kelsey said.

Then on Thursday, Kelsey said he’d been notified that DGS’s funding for the program — making up about one-twelfth of the DGS budget — would not end in November after all.

Dawn Thompson, a spokeswoman for the department, said early Thursday afternoon the department had not made any decision to cut off program funding for day treatment. When Medicaid’s support of the programs ended in July, she said, the department made up the difference with state funds.

“We’re not reversing. No decision had been made to stop anything,” Thompson said.

Asked why Delaware Guidance Services believed the funding for its day treatment program was due to expire, Thompson said: “That must have been a misinterpretation.”

Later on Thursday, Thompson provided an Aug. 26 email from the department to school districts saying, in part: “Day treatment as previously structured will not be provided after December 2016.”

Clarifying her earlier comments, she said: “I do not believe I had been made aware of a communication to service providers detailing an end date.”

Confusion abounds!

This is the entire email sent to the legislators last night which matches verbatim for the part that was cited in the News Journal article today.

Dear Legislators,

There has been concern expressed about the future of day treatment for children in Delaware, and I’d like to give you some information that may be helpful to you and your constituents.  Over the next few months, we will be offering opportunities for people to come together to discuss how we can best serve the children and families in our state. We want feedback and ideas from all our various stakeholders including families, educators, providers, and community partners.

In the meantime, PBH will continue to offer mental health services, including day treatment if appropriate, to children and youth who receive Medicaid benefits or are uninsured.  Also, PBH will continue to offer services ranging in level of intensity from traditional outpatient services through in-patient hospitalization.  Every treatment option currently available to children and families will remain an option going forward until the stakeholders have been engaged and the system is ready for a transition.  As before, treatment will be individualized, flexible, and adapted to meet the needs of the child and family.

By way of background, I’d like to tell you about what we’ve done to enhance community and family based services for our children and families.  These types of services are provided to our clients without causing a disruption to their already established community connections such as school or sports teams.   The new services are supported by research and have been effective with children, youth and families across the country and in contiguous states. As we speak to stakeholders in the coming months, we will be focusing and seeking feedback on the benefits of these new services.  In particular, we would like to discuss whether the treatment available through these programs is more likely to result in better outcomes for children and their families than some existing options, including day treatment programs.

The community based treatment options are things like Multisystemic Therapy (MST), which is a home-based intensive family and community-based treatment that addresses multiple aspects of serious conduct related behavior in adolescents. MST typically targets chronic, aggressive youth who are at high risk of out-of-home placement.

Another new option is Functional Family Therapy (FFT).  FFT is a short-term, family-focused, community-based treatment for youth who are either “at risk” for, or who manifest, antisocial behavioral problems such as conduct disorder, oppositional defiant disorder, disruptive behavior disorder, violent acting-out and substance abuse disorders.

A third type of service added to our continuum is one called Family Based Mental Health Services.  These are designed to serve children between 3 and 17 years of age and their families (parents, guardians, caretakers and siblings). These children have a serious mental illness or emotional disturbance, are at risk for out-of-home placement into residential treatment facilities, psychiatric hospitals or other settings. The focus of treatment is on the child and family system. Family Based Mental Health Services treat these children and adolescents in their homes, communities and schools thus allowing the youth to remain in the home.  Services are available 24 hours per day and 7 days a week via on call therapist and include crisis intervention as a part of the service.

These are just three of the services that will soon be available to clients in all three counties.  Additionally, the families will also be able to benefit from various therapeutic supports which can be available in the home and school in conjunction with other medically necessary treatment services.

We would be happy to speak with you or your constituents regarding our enhanced range of services, and our approach to care management.   Our commitment continues to be to the children, youth and families of our state.

Please feel free to contact PBH Director Susan Cycyk at susan.cycyk@state.de.us or contact her office at 302-633-2600.  She will be happy to share updated information as it becomes available as well as information regarding our other school-based programs including the elementary school Family Crisis Therapists and the middle school Behavioral Health Consultants.

Sincerely,

Steve 

Steven E. Yeatman

Chief Policy Advisor

Department of Services for Children, Youth and Their Families

1825 Faulkland Road

Wilmington, DE 19805

SLC N300

steven.yeatman@state.de.us

Office – (302) 633-2505

Editor’s note: The email did contain the cell phone of the PBH Director but I took that out for her privacy as that was given to legislators.

The United States Department of Health and Human Services clearly states what is covered under HIPAA and what is under FERPA in the following information from their website:

The school is not a HIPAA covered entity.  The HIPAA Privacy Rule only applies to health plans, health care clearinghouses, and those health care providers that transmit health information electronically in connection with certain administrative and financial transactions (“covered transactions”). See 45 CFR § 160.102.  Covered transactions are those for which the U.S. Department of Health and Human Services has adopted a standard, such as health care claims submitted to a health plan.  See the definition of “transaction” at 45 CFR § 160.103 and 45 CFR Part 162, Subparts K–R.  Thus, even though a school employs school nurses, physicians, psychologists, or other health care providers, the school is not generally a HIPAA covered entity because the providers do not engage in any of the covered transactions, such as billing a health plan electronically for their services.  It is expected that most elementary and secondary schools fall into this category.

The school is a HIPAA covered entity but does not have “protected health information.”  Where a school does employ a health care provider that conducts one or more covered transactions electronically, such as electronically transmitting health care claims to a health plan for payment, the school is a HIPAA covered entity and must comply with the HIPAA Transactions and Code Sets and Identifier Rules with respect to such transactions.  However, even in this case, many schools would not be required to comply with the HIPAA Privacy Rule because the school maintains health information only in student health records that are “education records” under FERPA and, thus, not “protected health information” under HIPAA.  Because student health information in education records is protected by FERPA, the HIPAA Privacy Rule excludes such information from its coverage.  See the exception at paragraph (2)(i) to the definition of “protected health information” in the HIPAA Privacy Rule at 45 CFR § 160.103.  For example, if a public high school employs a health care provider that bills Medicaid electronically for services provided to a student under the IDEA, the school is a HIPAA covered entity and would be subject to the HIPAA requirements concerning transactions.  However, if the school’s provider maintains health information only in what are education records under FERPA, the school is not required to comply with the HIPAA Privacy Rule.  Rather, the school would have to comply with FERPA’s privacy requirements with respect to its education records, including the requirement to obtain parental consent (34 CFR § 99.30) in order to disclose to Medicaid billing information about a service provided to a student.

In 2011, FERPA was changed to allow student information to go out to the following according to the final regulations from the U.S. DOE:

(6)(i) The disclosure is to organizations conducting studies for, or on behalf of, educational agencies or institutions to:

(A) Develop, validate, or administer predictive tests;

(B) Administer student aid programs; or

(C) Improve instruction.

Shortly after the 2011 changes to FERPA, the blog Utahns Against Common Core asked the following:

Why would the federal government want to track genetic and medical information coupled with educational information in a cradle to grave longitudinal database (which Utah has implemented)? Why is the Gates Foundation funding biometric tracking? Why is the Gates Foundation co-hosting the London International Eugenics Conference with Planned Parenthood and the United Nations Population Fund (UNFPA) next month? Why would the Department of Health and Human Services under Kathleen Sebelius (responsible for the FERPA changes listed above) be offering $75 million in grants for schools to open health clinics inside their schools away from parental oversight? Why did the Gates Foundation sign a 2004 agreement with UNESCO (U.N. Education arm) to create a global education system and then pay nearly $20 million to the National Governor’s Association and Council of Chief State Superintendents Organization to prompt them to create Common Core?

You don’t have to be a rocket scientist to see that the federal government is in the business of control and not education. Why aren’t Utah leaders moving to protect Utahn’s from these overreaches of the federal government? Schools will become the ultimate laboratories in fulfillment of Marc Tucker’s dream for creating central planning for the American workforce.

Why indeed… Do I trust these therapies for students coming into schools?  I don’t know.  They could very well be very good therapies.  What I don’t trust is how the data from these school-based services could filter out.  This would be very personal medical information.  I don’t trust anything involved with the complete redesign of education by folks like the Gates Foundation.  Control is slipping away at a very fast pace without the ability of the public to have advanced knowledge of all these steps taking place over the past five to six years.  They will gather “public input” on all these changes when they should have done that in the first place.

Whether Delaware intended this in the first place is not known, but given all the information and research I have seen, I can only guess that this was the intention.  At the very least, there are far too many state agencies involved in this situation with the day treatment centers: DOE, DHSS, DSCYF, and lord knows who else.  But it almost seems as if they create a scenario, like this one, where they know parents will openly revolt about changes to the mental health system in the state, react by creating a “public comment” period, and wind up implementing new policies and legislation based on what they want.  I’ve seen this in the Department of Education too many times to count, and it looks like our Department of Health and Social Services is doing this.  Or maybe they always have and I just wasn’t paying attention.

I’ve written about private information getting out into the hands of outside companies before.  I wrote at length, ironically enough, about the Medicaid Reimbursement program and a company called Public Consulting Group (PCG).  This was in regards to the reimbursements the state gets for providers like Occupational Therapists, Speech Therapists, or Psychologists to name a few when they provide special education services in schools.  I wrote the article on PCG and the Delaware DOE over two years ago.  PCG is still the vendor for the state Medicaid reimbursement program as well as other contracts with the Delaware DOE, including the Statewide Review of Educational Opportunities Strategic Plan.

With today’s plethora of education think-tanks, non-profits and for-profit education companies, this opens a goldmine of student information that is allowed to go out.  While this information does not contain personally identifiable information and is based on a students state-assigned identification number, that research can go back to the State DOE who could easily create a birth to 21 tracking system for students.  Parents need to wake up and demand FERPA is restored to its pre-2011 levels before any chance of protecting their kids personal information is gone forever.

Another education blogger, Gadfly On The Wall, wrote an excellent article earlier today aptly titled “The Child Predator We Invite Into Our Schools” with great detail about the upcoming changes in education and the student data mining portion of what is going on.  I don’t see what he talks about and what I’m talking about as two different things.  They are pieces of a huge violation of privacy rights going on in our schools.  Wake up parents, wake up…

Delaware Medicaid Cuts For Day Treatment Centers Will Make Schools A “One Size Fits All” Band-Aid

The root of the State of Delaware cutting day treatment centers that have state contracts lies with Medicaid.  The federal government issued guidance in 2011 urging states to look at their state Medicaid plans.  As a result of Delaware’s plan, it has been determined that day treatment centers can no longer be reimbursed for education through Medicaid as of June 30th, 2016.  The news coming out about the state closing these centers has not been officially released yet but something is supposed to come out from the Division of Services for Children, Youth and Their Families this evening.

What this means is day centers can no longer provide any education services for children under the age of 21.  They can only provide direct treatment or counseling.  Many students that currently attend these centers receive both.  It will force these centers to essentially shut down.  So far, it has been confirmed that the two most impacted day centers will be the Terry Center in New Castle and Seaford House in Sussex County.  But there are others, and this will impact a lot of children.

So where will these children go?  Many parents of these students fear they will be placed in their district Intensive Learning Centers (ILC).  I have found these ILCs to be more like a boot camp than a place where students with disabilities or troubled youth can get the true help they need.  The ILCs tend to treat all problems as behavior, but most severe disabilities are neurologically based.

All of this was reported by the State of Delaware through the regulatory process, but the language used in the writing is somewhat vague and never once mentions the words “day treatment center” which is the commonly used terminology for these places.  This is from Regulation 763 which was finalized on February 1st, 2016:

5. Other EPSDT Services
Reimbursement for services not otherwise covered under the State Plan is determined by the Medicaid agency through review of a rate setting committee. Non-institutional services are paid on a fee-for-service basis. Institutional services are per diem rates based on reasonable costs. These services include:
(a) Prescribed Pediatric Extended Care – see ATT. 4.19-B, Page 7
(b) Inpatient and Partial Hospital Psychiatric Services – reimbursed on a per diem basis
(c) Outpatient Psychiatric Facility Services – fee-for-service
(d) (b) School-Based Health Service (SBHS) Providers:
School based health service providers include Delaware school districts and charter schools and may provide the following Medicaid services per Attachment 3.1-A, Page 2 Addendum:
EPSDT Screens
Nursing Services
Physical Therapy
Occupational Therapy
Speech Therapy, Language and Hearing Services
Psychological and Developmental Treatment Assessment
Counseling and Therapy
Residential Mental Health or Developmental Disability Treatment
Specialized Transportation Services
19 DE Reg. 763 (02/01/16) (Final)

 

As I feared, they are taking out services that are necessary for students with disabilities and attempting to replace those with either in-home services or school-based services.  I’m sorry, but even with the strides some schools have made with special education, these students are not meant to be in an inclusive setting at times based on their disabilities.  And ILCs are a prison for these kids.  They are psychological torture.  This is very bad.  Delaware will say they went through all the proper channels, but if the Regulation was finalized in February, why are parents just finding out about this now? Why didn’t they send something to parents that have their child in the state Medicaid program to let them know of these HUGE changes?  Writing about regulations with all their confusing jargon and legalese is not the same thing as making sure that information gets disseminated to citizens in a clear and coherent way.  This is how both state and federal government get away with things.

But who is going to pay for these increased services in our schools?  We don’t have enough money now to properly service public education.  Will this mean more federal grants tied to the Every Student Succeeds Act?  Or will we start to see the slow invasion of non-education entities coming into our schools?  Is this just Delaware or will other states go through this process?  These are burning questions I mean to find the answers to.

Unless the legislators don’t check their state email, they should all know about this by now.  I emailed every one of them, along with Governor Markell, Attorney General Matt Denn, DHSS Secretary Rita Landgraf, Secretary of Education Dr. Steven Godowsky and several others about this today.  But this information regarding the regulation and the Medicaid situation I just found out about in the past few hours.  In reviewing the FY2017 Budget Proposal by the DSCYF to the Joint Finance Committee this year, this plan wasn’t clearly laid out to the General Assembly.  But the timing on this, when these day treatment centers would close, would be after the General Election even though Medicaid stopped reimbursing for these services as of 6/30/16.  How many people knew about this?  Did John Carney?

I have wondered over the past two years, as I fell deeper into the corporate education reform rabbit hole, how students with disabilities, especially those with the most severe, could ever survive in the upcoming personalized learning/competency-based education world.  The answer is becoming very clear: they can’t.  I believe the intent is to push them out of public education.  To force parents into homeschooling their children with moderate to severe disabilities.  The problem becomes the affordability of this.  That would mean one parent can’t work a normal 9-5 job.  It means less revenue for the state.  But these families will still be expected to pay property taxes to pay for our schools.  How is that just in any way?  I have always spoken out against voucher programs.  But if our state wants to force the hand of families of disabled children, perhaps it is time a new conversation started.