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…

State Rep. Kim Williams Informed Closure Of Day Treatment Centers Will Happen

Delaware State Rep. Kim Williams let me know she was informed the closure of out-patient intensive servicees, otherwise known as day treatment centers, will occur in the next sixty days.  This decision was made through the Division of Prevention and Behavioral Health which is part of the Department of Services for Youth, Children and Their Families (DSCYF).  One parent found out that local school districts or charter schools will be expected to pick up the tab for these types of services in private settings.  Which is in sharp contrast to existing Delaware state code which indicates the state picks up 70% of these bills and the local districts pay 30%.  These placements are deciding by a group called the Interagency-Collaborative Team.

The ICT and what they do is this, from Title 14 of Delaware code:

(b) Before the Department of Education can authorize expenditures for new placements according to this section, the case must be reviewed by the Interagency Collaborative Team (ICT).

(1) The ICT shall consist of:

a. Division Director, Division of Prevention and Behavioral Health Services of the Department of Services for Children, Youth and Their Families (DSCYF);

b. Division Director, Family Services of DSCYF;

c. Division Director, Division of Youth Rehabilitation Services of DSCYF;

d. Division Director, Division of Developmental Disabilities Services of the Department of Health and Social Services (DHSS);

e. Division Director, Division of Substance Abuse and Mental Health of DHSS;

f. Director of the Office of Management and Budget or designee;

g. The Controller General or designee;

h. Director, Exceptional Children’s Group, Department of Education (DOE), who will serve as Chair; and

i. Associate Secretary, Curriculum and Instructional Improvement, DOE.

(2) A director assigned to the ICT may designate staff to represent the director on the ICT only if these designated representatives are empowered to act on behalf of the division director, including commitment of division resources for a full fiscal year.

The Delaware Department of Education needs to share the blame for this.  They have set up a pressure cooker for students with disabilities.  While Autism rates have soared in the past decade, so has the test, label, shame, and punish atmosphere set up by the DOE.  While much of this was set up through federal mandate, Delaware has consistently failed in being able to “get” special education.  Inclusion does not work in the modern era of Common Core standards and the Smarter Balanced Assessment.  When the DOE started setting up “standards-based IEPs” they missed the whole point of special education.  Is it any wonder students can’t function in these types of environments?  It is toxic to them. It is toxic to all students, but more for the most challenged.

Special education in Delaware is horrible.  I am not disparaging the teachers in the classroom who attempt to deal with these issues, but the psychological toll on these students is more clear than ever.  What we are doing now isn’t working.  What they are planning won’t work.  It is past time for parents to begin rising in protest like they never have before and demand change.

 

Is The State Of Delaware Closing All State-Run Mental Health Day Treatment Centers?

Last night, a friend of mine asked me if Delaware was closing all their day treatment centers.  I had not heard of this before.  But apparently there is confirmation from a few organizations in the state that this will happen in two months.  This would not include the day treatment centers run by hospitals, like Dover Behavioral Health.

Many parents of children with disabilities, specifically autism, rely on these services for their children when the public school system is unable to give the services these children need.  In social media postings, several parents are desperately trying to get confirmation of this.  I reached out to a couple of legislators and one confirmed it is happening while the other had not even heard of this.

On Monday, the Delaware Economic Forecast Advisory Council (DEFAC) announced the state was looking at a $167 million deficit in their latest projection.  Last night at a “Meet and Chew”, Delaware Governor candidate John Carney said he fears this will rise to $300 million in the coming months.  While I don’t know if this is related to the possible shutting down of state-run day treatment centers, it would certainly save the state a considerable amount of money.  But what happens to these children who depend on these services?  Our schools can’t service them.  The private day centers lack the space to accommodate all these kids.  As one parent said on Facebook, “this is a disaster waiting to happen.”

If I were a parent of a child who uses these services, I would be freaking out!  I highly recommend all of these parents contact the Department of Service for Children, Youth and their Families (DSCYF) as well as the Department of Health and Human Services (DHSS).  They should also contact their state representatives and senators.  If you don’t know who your state rep or senator is, you can look here for your Senator and here for your State Rep.

One Delaware Senator told a parent they want written confirmation from DSCYF on this matter and expects to receive that today.  Why is it always the children who need the most help that get crucial services cut first?  If this happens, I fully expect parents to rise up and fight the state on this.

One parent was told this would not affect the residential treatment centers, where students actually live there to get help.

 

 

Milford Tuition Tax Increase Sparks Outrage From Area Residents

Imagine getting your tax bill in the mail and it goes up by $500.00 for the year.  For citizens in the Milford School District in Delaware, this was the new reality they faced last week.  Much of the controversy surrounds their referendum which passed last year.  A referendum and tuition tax are two very different things.  With a referendum, that is asking citizens to support increased taxes for operating expenses or capital costs.  A Delaware school board can’t just raise those taxes on their own.  The people need to vote on it.  But for tuition tax, as well as what is called a match tax, the school board can vote on an increase for that.

For newer readers, tuition tax is based on special education costs that exceed the funding provided by the state, the feds, and what the local school district appropriated for these costs.  This could mean increased funds for teachers and staff to accommodate students with disabilities or it pays for out of district placements for more complex needs of students.  Delaware has seen a dramatic increase in students sent to either day treatment centers or residential treatment centers.  Some of these treatment centers are out of state which causes the costs to increase even more.  It seems to have risen dramatically in the last year, and I’m beginning to really wonder why this is going on.

What happened in Milford was their board passed on raising the tuition tax for a number of years.  Meanwhile, they passed their referendum which would give the average citizen in the district an increase of $120 in their tax bill.  But in June, the board passed a tuition tax increase.  This double whammy dramatically changed how much of an increase citizens saw in their new tax bill.

Milford Live covered this increase on August 23rd.  A big issue surrounding the tax increase at the June board meeting dealt with transparency:

A review of the addendum for the June 20 meeting that is posted online did not indicate that there would be discussion about a tax increase at the school board meeting. However, when visitors arrived at the meeting, there was an addendum to the agenda with the presentation included, something that is common at Milford School Board meetings.

Milford has its fair share of senior citizens, and the sticker shock caused them to speak out in large numbers.  One commenter on the Milford Live article stated that when their annual income is $6,000-$7,500, an annual increase like this really puts a dent in their wallet.  What makes Milford unique, along with three other school districts in Delaware, is that they are located in two counties.  This means residents of both Sussex and Kent County have two different amounts based on property assessments in each county.  For Sussex residents, their new tax bill went up to $5.39 for every $100 of their assessed property value.  Previously, it had been $3.56.  For Kent County residents, the burden wasn’t as large as it went from $1.26 to $1.90.

Back in July, I questioned Appoquinimink on their huge tuition tax increase.  While the information they gave to the press indicated one thing, the reality was very different.  Appo said the rise in special education costs was dramatic last year and put a large emphasis on out of district placements.  But the increase in out of district placements was not a large percentage of their increase.  It was mainly for in-district special education services.

In Milford, their budgeted amount for their tuition tax was $2,100,000 as of July 2015.  That would include both their out of district placements and in-district special education services that are in excess of state and federal funding.  What they spent in FY2016 was $2,676,902 for these placements.  While I can’t see the difference between what they budgeted for out of district placements and in-district special education services because their FY2016 budget is not posted on their website, the amount they paid in out of district placements is more than they budgeted for the entire category.  As a side-note, their website does not have their monthly financial statements for either June or July of 2016 which puts them out of compliance with state law.

It really worries me that all these students with disabilities are being sent to places outside of school districts, in rapidly growing numbers.  I hear a lot of people blame parents for student behavior.  While that could certainly play a factor, how come no one is talking about education itself.  Since Common Core came out, I am seeing a rapid rise in these placements.  And it seems to have really gone up in the last school year.  I would be very curious how these students scored on the Smarter Balanced Assessment in the 2014-2015 school year.  I hate to go there, but does it become easier to send a student out of district if they were not proficient on this test?  Is the “rigor” and “grit” having a bigger psychological impact than we think?

The price for these students may wind up being higher than the rise in tuition taxes across the state.  And I’m not talking financially…

$2,676,902 $452,780

2015 ICT Report Shows Increase Of Students With Disabilities Placed In Residential Treatment Centers

This is the third year in a row I’ve written about these reports.  They are the articles I hate writing, but feel it is necessary that people see them.  The Delaware Interagency Collaborative Team (ICT) has the very difficult task of determining how to place students with disabilities when the services in a public school can no longer meet their needs.  It is usually based on behavior issues.  These are the toughest cases in Delaware.  I’ve given this group a hard time in the past, but I’ve mellowed out a bit since then.

PrivatePlacementType

In Fiscal Year 2015, 140 Delaware students with disabilities received services through ICT.  Out of those 140, 65 students were placed in residential treatment centers.  24 of those students were placed in out-of-state treatment centers which brings it to 37%.  72 students attended day treatment centers.  As shown by the below graph, very few students received one-on-one services in the school.  The report cites the needs-based funding formula as contributing to this decrease.  Which I find ironic given that the needs-based formula doesn’t allow for basic special education funding for students in Kindergarten to 3rd grade.

Unique Alternative Services

What I always find odd about these reports is they never give the total cost of this program.  They show high and low prices for some of these residential and day treatment centers.  I would think that would be of major concern to the state.  Or perhaps they just don’t want the public to see it for some reason.

Residential&DayCosts

I still feel the endless rigor of Common Core and performance on standardized tests is not good for any child.  But for these students, it has to be extremely hard to meet the demands of “reaching proficiency”.  These are the children I cry and pray for as much as possible.  It is a parent of a special need’s child worst nightmare.  I feel for the parents or guardians of the 140 children who faced this alternative last year.  I can’t help but feel some of these could have been avoided at some point earlier…