School-Based Health Centers Proposal May Collide With Parental Authority… This Is A Game Changer In Schools!

I’ve heard constant echoes of one thing over the past year: we need more supports in our schools for our high-needs students.  But what happens when that call is heard but we may get far more than we ever bargained for?  What if the services provided become very invasive in scope?

The Delaware Department of Health and Social Services (DHSS) put out a request for proposal (RFP) for all nineteen school districts in Delaware and the thirty-two high schools within them.  The goal of the vendor contracts would be to increase the role of wellness centers in schools.  The funding was already put in place in the FY2017 budget.  A few high schools wouldn’t begin these kind of contracts until FY2018 because they didn’t already have existing wellness centers in the schools.

I have grave concerns with how much DHSS wants to happen in our high schools.  I understand why the bid for this is coming out of DHSS, but this is an education matter.  I fully understand that some students may not have access to medical treatment so I am not explicitly against these types of centers in high-needs schools.  But the amount of private student data involved is astounding.  Under HIPAA, that is merely a consent for information to go out from a health provider to another entity.  Parents need to understand exactly what they are signing consent for.  Where this gets confusing is the differentiation between HIPAA and FERPA.  FERPA only applies to educational records.  The data from these health centers in our high schools would not fall under FERPA.  Or at least they shouldn’t.

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There are several terms in the above picture that worry me.  “Prevention-oriented multidisciplinary health care”… I’m all for prevention, but prevention against what?  Where is the line drawn?  What if one of these multidisciplinary measures goes against a student’s religion?  What if the student is not aware of that but a parent becomes upset when they find out?  “Integration with primary care”… what does that even mean?  Integration would mean a data system cross-referencing the health information between a primary physician and the school-based health provider.  Does that information flow both ways?  Serious data privacy concerns here folks!

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“The delivery of medical and mental health services”… If a student needs immediate treatment, is a school even equipped to act as a triage type unit?  Is that the eventual goal here?  In terms of mental health services, I have long thought it was a good idea for school districts to have psychiatrists or neurologists on hand for IEP meetings.  All too often, psychologists are used to determine “behavior” issues but a psychiatrist or neurologist would be able to give more explanation of what is going on neurologically when a student manifests disabilities.  A psychologist can’t prescribe medicine and as a result, they may not have up to date knowledge of what different medicines do and how they metabolize with the human body.

Students come into our schools with trauma.  Of that, no one seems to be in disagreement.  If families aren’t able to provide students with safe and supportive environments at home, then the school setting would be ideal for students to get the help they need to deal with those issues.  But my concern is this becoming available for ALL students eventually.  All too often parents are denied health information about their child on certain things when it comes to the existing wellness centers.  With this program increasing in scope like this, I can picture that becoming a much bigger issue.

In private practices, these types of services are not cheap.  But that is where the best in their fields tend to go.  With this plan, how many would leave existing private practices to come work in schools?  Not too many I am afraid.  As a result, we would most likely get younger, fresh out of college mental health providers without the experience.  They would get paid less and as a result an inequity would develop between students who come from stable and wealthier home environments and those who come from low-income or poverty families.  Those who come from the stable homes would most likely continue to go to private practices.

DPH is the Division of Public Health.  They would provide partial funding for this project.  But what happens when the project becomes mainstream?  All too often, our school districts become the financial bearer of state mandated programs.  Yes, the funding exists now, but what happens when it isn’t available?  Do they cut these programs out of schools entirely or do local school districts bear the financial burden for paying for these programs?

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My first question: what is the School-Community Health of Michigan entity that appears to house school-based health information?  How secure is this data?  If one of the vendors chooses to implement the two years to develop their plan for data reporting, how safe is that data in the meantime?  Should all student risk assessments be standardized?  I would think students with disabilities, those coming from broken homes, or those dealing with poverty would tend to fall lower on a standardized scale as opposed to their peers.

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I don’t mind a culture of health.  Lord knows we can be healthier in this country.  But when I see “How youth and parents would be involved in the “planning, operation, and promotion of the SBHC,” that seems like a lot of emphasis put on parents.  If these services are for high-needs students whose parents aren’t big on family engagement, this would result in parents of regular students doing the pushing for these programs.  Will they want to do that if it isn’t for their own child?  “Potential partners and key stakeholders”… as defined by who?  And as we all know, data flows to “partners” quite a bit with education records.  Would parents be given consent forms to send their child’s medical data to entities who really don’t need that information at all?  It mentions HIPAA here, but this is a very slippery slope.  I need a lot more information here.  What is a “diversified funding base”?  Since, invariably, all of this would be paid for by the taxpayers of Delaware, will they really want to pay for other students health services?  We already do, to some extent, but this would increase those costs.

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I’m sorry, but did that really say “if the SBHC intends to be a Title X/family planning provider”?  For those who may not be familiar with Title X, the U.S. Department of Health and Human Services describes this program on their website:

Family planning centers offer a broad range of FDA-approved contraceptive methods and related counseling; as well as breast and cervical cancer screening; pregnancy testing and counseling; screening and treatment for sexually transmitted infections (STIs); HIV testing; and other patient education and referrals.

I hate to even bring this up, but if this could in any way lead to abortions being provided in schools that would cause a nuclear war between parents and schools.  No matter what your views on abortion might be, I would tend to think the school would be the last place anything like that should happen.  For that matter, the various “screenings” allowed under Title X could lead to serious contention as well.  For the “5 performance measures for the basis of evaluation”, based on federal guidance I imagine, does that mean every single school-based health center would be required to perform these five measures?  Chlamydia testing can be done by urine samples for both males and females, but sometimes they are performed for females as vaginal swabs.  I would hope that isn’t the method being proposed in this contract.  With all seriousness, I do know chlamydia is a very serious sexually transmitted disease and among the most common.  I don’t know if school-based health centers currently screen or test for chlamydia.  If anyone has information on this, please let me know.  I reached out to a few people who were shocked this would be included in this.

Once again, my biggest concerns with all this surround student data.  This goes way beyond my concerns with existing student data.  Parents should seek answers for this.  I know I will be!  Please read the entire RFP, seen below.  I need to know your thoughts on this.  This is very big and I don’t feel Delaware citizens are even aware of this going on without our knowledge.  The transparency on something of this scope has obviously not been present.  Please share this with everyone you know in Delaware.  Get feedback from your friends or those in the medial profession.  Is this too much?  I have seen a lot of “futurist” lingo talking about how our schools will become “community schools” in the truest sense of the word based on things like this coming to fruition.  Does the term “the whole child” include aspects that will eventually take authority away from parents when it comes to their children’s health?  How much will parents be able to opt out of these programs?

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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…

ESSA: Parents & Educators MUST Attend The Upcoming Meetings & Educate Themselves On The Law!

The Delaware Dept. of Education will have three more Every Student Succeeds Act Community Engagement meetings in the next week.  They held a meeting in Georgetown on Tuesday.  The next three meetings will take place in Wilmington, Middletown, and Dover.  The DOE is “requiring” participants to register through a company called Event Brite.  Links to register can be found here.

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I will stress with all the urgency I can muster that ALL public education parents attend these meetings.  Before you go, I would familiarize yourself with the federal law.  You can read the full text of the law here.  It is a very long law with a lot of repeated jargon and “legalese” in it.  The Delaware State Board of Education and Delaware DOE has put up many links to it on their websites, but a lot of that is open to interpretation.  As well, U.S. Secretary of Education John King has issued “proposed rulemaking” which are potential regulations.  These regulations are VERY controversial.  You can read those regulations here and here.

These are my major concerns with ESSA:

By allowing states to have more flexibility, many states have already created long-term plans based on the prior federal mandates.  Far too many in our state DOEs follow what the corporate education reformers want and give a false illusion of “stakeholder input”.

The Delaware DOE has given NO indication whatsoever that they will even consider changing the state standards away from Common Core even though they can certainly do this according to ESSA.  The US Secretary of Education isn’t required to approve these standards.  The states merely have to give an assurance that their standards will follow the law.

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Student data still isn’t protected to parents satisfaction.  To stop this data from going out, they need to restore the Family Educational Rights & Privacy Act (FERPA) to pre-2011 levels

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Bouncing off the previous statement, by allowing more social service and health-based practitioners into our schools, there is a serious question regarding what applies to FERPA and what applies to the Health Insurance Portability and Accountability Act (HIPAA).

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John King’s regulations would keep the 95% participation rates for state assessments with consequences for schools and districts.

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John King’s Title I regulations would enact a “supplement not supplant” these funds.  This is in sharp contrast with federal law and he was called out on this the other day by the US House Education and Workforce Committee.

There is far too much talk of competency-based education through computer adaptive assessments.  That is just lingo for personalized learning.  This law would allow for classrooms to become online all the time.  There are severe dangers with this in regards to the downgrading of the teacher profession, far too much screen time for students, and the quality of the educational material.  As well as severe data privacy concerns.  In fact, there are incentives for schools to adopt personalized learning.

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While the law forbids the US DOE from forcing or coercing states to implement any state standards, like Common Core, many states already have these in place and spent years embedding them into every facet of public education.

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The law calls for state accountability “report cards”, based on performance of the state assessment, but the tests are not required to be exactly the same for all students.  So the state assessments are not a true measurement since they will be different for each test-taker.  Delaware set up their report card last year under the name of the “Delaware School Success Framework” but they inserted a very punitive participation rate penalty if a school dips below the 95% participation rate which can’t use parent opt-out in those calculations according to the law.

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State assessments will not be required to have questions at the appropriate grade level for students.

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ESSA requires any plan to be submitted to the State DOE, State Board of Education, the Governor and the state legislature.  To date, the Delaware DOE has not had “meaningful” consultation with the Delaware General Assembly about ESSA.

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The law specifically states that all choice schools should have priority given to the lowest-achieving students, but Delaware allows for charter schools to have enrollment preferences that allow for higher-achieving students to have distinct advantages, especially in our magnet schools and charter schools like Charter School of Wilmington.

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I have many other concerns with ESSA, but these ones stand out for me.  I am coming at this from the perspective of a parent.  I know educators have concerns over some of this as well.

The Relationship Between The Delaware DOE and Public Consulting Group Revealed, It’s Worse Than Before!

The Delaware Department of Education and the Public Consulting Group have a relationship based on a contract, but the circumstance regarding the implementation of this contract are very alarming. This contract is to help support the Children Services Cost Recovery project, which provides federal Medicaid reimbursement to Delaware. PCG has had a vendor contract with the Department of Health and Social Services (DHSS) for many years, but it wasn’t until the end of 2011 that the DOE gained a contract with PCG.

When a student with disabilities receives Medicaid and also receives special education services through an IEP, the state can actually get part of the costs for the special education reimbursed to them. Special needs parents of a child with an IEP should receive a letter asking for authorization from the state to recover such costs. This could include occupational therapy, speech and language, or even a school nurse. This would be classified as School Based Health Providers. As per the DOE website, the letter should indicate something to this effect:

Written Notification to Parents/Guardians/Custodians

Regarding Use of Public Benefits or Insurance (MEDICAID)

You are receiving this written notification in order to provide you with information about your and your child’s rights and protections under Part B of the Individuals with Disabilities Education Act (“IDEA”). This information is to assist you in making an informed decision about whether you should give your written consent to allow your school district or charter school to use your or your child’s public benefits or insurance (Medicaid) to pay for special education and related services that your school district or charter school is required to provide at no cost to you under IDEA. This written notification must be provided to you before the school district obtains your consent for the first time and annually thereafter. Your rights include the following: 

Before your school district or charter school can use your or your child’s public benefits or insurance (Medicaid) for the first time to pay for special education and related services under IDEA, the school district or charter school must obtain your signed and dated written consent. 

Under Federal law—the Family Education Rights and Privacy Act (“FERPA”) and the confidentiality of information provisions in IDEA—your school district or charter school is required to obtain your written consent before disclosing personally identifiable information (such as your child’s name, address, social security number, student number, student number, IEP, or evaluation results) from your child’s education records to a party other than your school district or charter school, with some exceptions. In this situation, your school district or charter school is required to obtain your consent before disclosing personally identifiable information for billing purposes to the agency in your State that administers the public benefits or insurance (Medicaid) program. Your consent must include a statement specifying that you understand and agree that your school district or charter school may use your or your child’s public benefits or insurance (Medicaid) to pay for services under 34 CFR part 300, which are special education and related services under IDEA.

Your school district or charter school if the school district or charter school seeks to use your or your child’s public benefits or insurance (Medicaid).

Your school district or charter school may not require you to sign up for, or enroll in, a public benefits or insurance (Medicaid) program in order for your child to receive a free, appropriate public education (“FAPE”) under IDEA. Additionally, your school district or charter school may not require you to pay an out-of-pocket expense, such as the payment of a deductible or a co-pay amount for filing a claim for services that your school district or charter school is otherwise required to provide to your child free of charge. Finally, your school district or charter school may not use your or your child’s public benefits or insurance (Medicaid) if using those benefits or insurance (Medicaid) would: (a) decrease your available lifetime coverage or any other insured benefit, (b) cause you to pay for services that would otherwise be covered by your public benefits or insurance (Medicaid) program because your child also requires those services outside of the time that your child is in school; (c) increase your premium or lead to the cancellation of your public benefits or insurance (Medicaid); or (d) cause you to risk the loss of your or your child’s eligibility for home and community-based waivers that are based on your total health-related expenditures.

You may withdraw your consent to the disclosure of your child’s personally identifiable information to your State’s public benefits or insurance (Medicaid) program agency at any time.

If you provided your consent for your school district or charter school to disclose your child’s personally identifiable information to the State agency that is responsible for administering your public benefits or insurance (Medicaid) program, you have the right under 34 CFR part 99 (FERPA regulations) and 34 CFR part 300 (IDEA regulations) to withdraw that consent at any time. If you wish to withdraw your consent, you should ask your school district or charter school what procedures you would need to follow.

If you refuse to provide your consent, or subsequently withdraw your consent, your school district or charter school must ensure that your child is provided all required special education and related services at no charge to you or your child.

If you withdraw your consent or refuse to provide consent under the FERPA and IDEA regulations, your school district or charter school may not use your withdrawal of consent or refusal to provide consent to disclose personally identifiable information to a public benefits or insurance (Medicaid) program to deny your child the special education and related services he or she is otherwise entitled to receive under IDEA. Therefore, if you refuse to provide consent or withdraw consent, your school district or charter school has a continuing responsibility to ensure that your child is provided all required services necessary to receive an appropriate education at no charge to you or your child.

We hope that this information is helpful to you in making an informed decision regarding whether to allow your school district or charter school to use your or your child’s public benefits or insurance (Medicaid) to pay for special education and related services under IDEA.

What this notice does not mention is the specific corporation that is receiving a lot of private information based on this program, which is PCG.

Another result of this contract is what is called “A Random Moment In Time”, which is a computer system that contacts random Direct Service Providers in Delaware to log into the system and record what they were doing for one minute. The methodology behind this system is to provide accurate data to the Centers for Medicaid and Medicare Services (CMS) for billing purposes for Medicaid reimbursement. Since DHSS is the provider for Medicaid, CMS required the DOE to be included in this project due to special education and School Based Health Providers. The DOE had to utilize PCG as what is called a sole source provider due to a tight timeframe in which the state risked losing this source of revenue. Since PCG had an existing vendor status with DHSS, this gave the impetus for the DOE using PCG as a sole source vendor, which was approved by then Secretary of Education Lillian Lowery. As part of Delaware Medicaid, DHSS contracts with the Direct Service Providers for what is known as Early and Periodic Screening, Diagnostic and Treatment Services given to those who receive Medicaid benefits under the age of 21. The criteria for this is set forth by the Delaware Medicaid Assistance Program (DMAP).

DMAP has a website which indicates what records are to be provided to DHSS or their contracted agents (PCG) by the School Based Health Providers. The website states the following:

All providers participating in the DMAP are required to maintain records that will disclose services rendered and billed under the program, and upon request, to make such records available to DHSS or its representatives in substantiation of any or all claims. These records should be retained a minimum of five (5) years in order to comply with all State and Federal regulations and laws.

In order for DHSS to fulfill its obligation to verify services provided to Medicaid eligible clients and that are paid for by Medicaid, providers must maintain auditable records that will substantiate the claim submitted to Medicaid.

At a minimum, the records must contain the following on each client:

• Notice of referral for physical therapy services by a licensed physician, updated annually

• Referral/authorization for services by an appropriately credentialed service provider

• Full assessment(s) in the appropriate discipline area(s) with pertinent documentation such as tests, evaluations, and diagnosis (updated at least every 3 years), and an annual reassessment documented in written format including narrative information summarizing the child’s status and the continuing need for treatment

• A treatment plan prepared by the respective therapist(s) that describes the goals/objectives and level of service(s) (i.e. type and frequency of service) needed. The treatment plan is required annually. A progress note is required approximately every six months or at a reasonable interval to document the student’s progress and the continuing need for service. An I.E.P. must be developed within 30 calendar days following the determination that a student is eligible for special education and related services.

• The name and title of the professional providing services and/or supervision

• Each occurrence of the student’s service, including the date, type, length, and scope of professional services provided

• Any significant contacts made in relation to the student

DHSS has also delegated authority to Children’s Services Cost Recovery Project (CSCRP) personnel to periodically review the ongoing operations of a school based health services provider with respect to:

• Certification requirements

• Service documentation, including need for services, treatment plans and case/progress notes

• Service practitioner’s qualifications

• Billing records

Where this gets real interesting is in the area of mental health school based health providers:

Mental Health Treatment Assessment

Assessment refers to the process of determining the need, nature, frequency and duration of treatment; deciding the needed coordination with others; and documenting these activities.

Screening

Mental Health screen has four primary components:

• Child study team meetings – a meeting of staff who have knowledge of a referred student to discuss the referral problem for the purpose of determining the next step in the screening process.

• Observations – a period of time spent observing a referred student in a natural setting for the purpose of determining student’s academic and/or interpersonal behaviors.

• Group testing – Psychologist’s or psychiatrist’s participation in administration of tests for the purpose of obtaining specific information about a student or group of students.

• Records review – Information gathering on a designated student by way of examining academic, health, behavioral and any other related records for the purpose of providing data relevant to concerns.

Evaluation

Evaluation includes a “Psycho-educational Assessment”. This assessment includes psychological and/or educational testing, typically for intellectual, personality, and/or educational evaluation of referred student, for diagnostic purposes resulting in the generation of a report. The psychological component of the assessment evaluates the intellectual, academic, perceptual motor skills, social and emotional adjustment, and readiness for learning.

Mental Health Treatment Services

Mental health treatment services includes the following therapeutic and related services:

• Individual Therapy – This service consists of supportive, interpretive, insight oriented and occasionally directive interventions.

• Group therapy – This service is designed to enhance socialization skills, peer interaction, consensual validation, expression of feelings, etc.

• Family Therapy – This service consists of sessions with one or more family members, for purposes of effecting changes within the family structure, communication, clarification of roles, etc.

• Case Consultation (Reimbursable for the time of the mental health professional only and must pertain specifically and completely to an individual student.) The role of consultation is monitoring, supervision, teaching and training of professionals, paraprofessionals, parents and student in the educational environment, home and/or community environment. Case consultation includes:

o Providing general information about a specific student’s handicapping condition

o Teaching special coping and intervention techniques necessary for the specific student’s interpersonal skills

o Recommendations for enhancing a specific student’s performance in educational environments

4.2.5.3 Mental Health Treatment Services: Service Procedures

The following services are included in the mental health treatment services category and should be used to document service provision for the purpose of reimbursement:

• Mental health treatment assessment

• Individual therapy – one therapist to one student

• Group therapy – one therapist to six or less students.

• Family therapy – one therapist to one or more family members of the student’s family

• Individual co-treatment therapy – two therapists to one student

• Group co-treatment therapy – two therapists to six or less students

• Family co-treatment therapy – two therapists to one or more family members of the student’s family

• Case consultation

Mental Health Treatment Services: Treatment Plan Requirements

An assessment and treatment plan are required annually. This treatment plan must be based on an evaluation by a qualified mental health treatment provider. Further, the treatment plan must indicate goals/objectives and level of service (type and frequency of service). A progress note is required approximately every six months or at a reasonable interval to document the student’s progress and the continuing need for service. The progress note must:

• Indicate where the student is in relation to the treatment plan goals

• Indicate if the treatment plan requires changes in the goals and/or objectives and

• Indicate if the type or frequency of the treatment requires modification.

So what records do the School Based Providers need to submit to DHSS and by default, PCG?

Service Documentation

School based health services providers must make all records of services provided to students with special health needs available to Medicaid program personnel or its representatives for monitoring and auditing purposes. These providers must maintain the following information for at least five years on all individuals for whom claims have been submitted:

• Dates and results of all evaluations/assessments provided in the interest of establishing or modifying an IEP, including specific tests performed and copies of evaluation and diagnostic assessment reports

• Copies of the IEP/treatment plan documenting the need for the specific therapy, treatment or transportation service (updated annually)

• Documentation of the provision of service in the student’s record by individual therapists and individuals providing service, including:

o The date of service

o Signature of the therapist rendering the service

o Duration of the service

• Documentation of case notes, at a minimum of once a month, by the individual therapist or the individual providing the service. The definition of case note is a descriptive summary of service provided with identification of any isolated or recurring problems. If a practitioner chooses to document session notes, there is no need to document monthly case notes. Session notes must contain some written narrative.

• The provision of special transportation services will be documented by the responsible schools in a client specific, date specific format.

• Progress notes delineating the continuing need for service are required approximately every 6 months or at a reasonable interval to document the student’s progress.

This then helps to determine medical necessity:

Medical necessity will be determined by judging what is reasonable and necessary with reference to accepted standards of medical practice and treatment of the individual’s illness.

School based health services shall be determined medically necessary based upon the assessments and evaluations conducted and the prescribed care as found in the student’s treatment plan. The treatment plan shall be developed by a multi-disciplinary team, or by an authorized therapist or other authorized medical professional and signed by treatment team members. The treatment plan should address the medical necessity for the identified service(s).

Although a physician signature is not required on the treatment plan, evidence of annual physician referral is required for physical therapy services.

What other information needs to be provided to DHSS, and by default, PCG?

The student’s service record shall contain, but is not limited to, the following:

• Identifying data including name, address and phone number, sex, date of birth, next of kin, date of initial referral or assessment/evaluation, date of service initiation, and source of referral

• Date of most recent EPSDT screen

• Referral documentation by a physician or other health care professional

• Assessment, evaluation and testing reports

• Handicapping condition of the student and/or a diagnosis which has been determined using a recognized diagnostic system (e.g., ICD-9)

• An Individual Education Program, if the student is determined to need special education and related services

• A current treatment plan which sets forth the type, level and frequency of services provided to the student

• Progress notes and other relevant service documentation which denotes status of services and progress to identified service goals

• Documentation of each service rendered which describes the type of service(s) provided and the date the service(s) were provided

• Documentation supporting the discontinuation of services including treatment outcome(s) or referral for continued/enhanced services outside of the school based health services provider

RECORD MAINTENANCE A. Nursing Services B. Psychological and Counseling Services C. Speech, Language and Hearing Services D. Occupational Therapy E. Physical Therapy F. Transportation A through F should include student specific identifying information, amount of service, date of service and signature of provider. All records must be maintained for a period of at least five (5) years.

All of the above in regards to DMAP guidelines can be found here: https://www.dmap.state.de.us/downloads/manuals/School-Based.Services.Provider.Specific.pdf along with other more detailed information.

DMAP clearly states that student identifiable records must be provided to DHSS and by default, PCG, as their contracted 3rd party vendor. But does the Family Educational Rights and Privacy Act (FERPA) recognize a contracted vendor, such as PCG, to be a party that is allowed to see all of the above types of records? A study done in 2008 through the Fordham Law School’s Center on Law and Information Policy, indicated this was a clear violation of FERPA in a similar situation in New Jersey. The Department of Treasure Purchase and Property Division had a contract with Public Consulting Group, but the contract called for personal identifying information regarding students with the New Jersey DOE. Because the contract was with a separate department, and not the DOE, the authors of the report stated the New Jersey DOE was out of compliance with FERPA based on this. They also found the following:

If the information we collected mentioned that the state used a third party vendor for the development of the system or for the storage of the data, we also made a request for a copy of the agreement with such third party vendor. Most states responded promptly; however, as of the date of this report, we have not received requested contracts from a few of the states. Also, some states may use third party vendors without disclosing those relationships publicly on their websites.

FERPA generally covers a local school district, or LEA, that receives funding from the Federal Government due to the LEA being part of a public school district. State Educational Agencies (SEA) typically aren’t covered under FERPA unless it has to do with records delivered from the LEA to the SEA. In the above, the Delaware DOE definitely receives a great deal of information from local school districts in regards to special education student identifiable data. The Fordham report goes on to state the following in regards to 3rd party vendor reception of student records and parental consent:

Another exception to the written consent requirement arises for educational agencies or institutions that disclose personally identifiable, non-directory information to organizations conducting studies on behalf of the educational agency or institution. To be in compliance, these studies must be conducted in order to develop, validate, or administer predictive tests, administer student aid programs, or improve instruction. The agency or institution may release information without prior written consent only if the study is conducted in a manner that does not permit personal identification of parents and students by anyone outside of the research organization and as long as the information is destroyed when no longer needed for the purposes for which the study was conducted. Recipients of information under this exception may not redisclose personally identifiable information outside of the research organization. Under this exception a school or school district may disclose educational records to a third party vendor that such school or district has contracted with for research purposes provided that the information disclosed to such vendors remains confidential and there is a schedule for deletion of such records following the completion of the stated purpose. This exception does not permit SEAs to disclose educational records to third parties for research purposes. Research contracts must be directly tied to the school or local education institution.

So how exactly does this related to PCG and their vendor contract with Delaware?

“…further disclosure by the state to any third party vendor is only permitted in narrow circumstances. The vendor must enter into an agreement with the state department of education, which provides that such vendor is a contractor and is under the direct control of the department. Any disclosures that do not meet this criterion, or that are done simply for research purposes, are not permitted. At least one state, New Jersey, does not appear to comply with this restriction. The New Jersey contract with Public Consulting Group is between the Public Consulting Group and The NJ State Department of Treasury Purchase and Property Division rather than the Department of Education and does not indicate that the Department of Education has direct control over the vendor.”

Does current FERPA law still agree with this?

99.31 Under what conditions is prior consent not required to disclose information?

(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by 99.30 if the disclosure meets one or more of the following conditions: (1)(i)(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests. (B) A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided that the outside party– (1) Performs an institutional service or function for which the agency or institution would otherwise use employees; (2) Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and (3) Is subject to the requirements of 99.33(a) governing the use and redisclosure of personally identifiable information from education records.

Based on those regulations, the answer would be yes. This means the Delaware DOE was out of compliance with FERPA regulations from the moment they began working with DHSS on the Children’s Services Cost Recovery Project until the time they signed a sole source vendor contract with PCG on 12/1/2011. This may be why Lowery had to act fast in obtaining PCG as a sole source vendor contractor in late 2011. From the time they were first notified in 2008, it took three years for the Delaware DOE to become compliant with the Centers for Medicaid and Medicare Services regulations. When it became a matter of the revenue being suspended due to this non-compliance issue, the DOE signed a very quick contract with PCG.

In terms of the ability for PCG to accurately protect data, I have not heard of any breach. But parents need to understand they do have access to a great deal of special needs student information, including personal identifiable information as well as psychological or psychiatric evaluations that could contain deeply private information. Parents need to know what they are signing when they sign the Medicaid reimbursement form when they obtain an IEP for their child. This would be a personal decision, but as a parent, I certainly won’t do it.

My investigation into PCG and the Delaware DOE wouldn’t have lasted as long if the DOE was more transparent on their website with vendor contracts. PCG is mentioned in one place on the DOE website, and that is on the Random Moment In Time training manual. Are they obligated to release this information? Probably not. But if they are having parents sign a form indicating information will be released for Medicaid reimbursement purposes, they should also include every single Delaware agency as well as 3rd party vendors that may be able to see this information. This isn’t a legal matter, but one of transparency and common sense. Parents need to know when they are signing a document of this sort what the full implication of that signature actually means. As well, with school based health providers, if they are required to keep their records for five years if they are involved with this program, where is that data stored? Is it protected?

Nowhere on the Delaware Awarded Contracts website does it show the contract between the Delaware DOE and Public Consulting Group or PCG. It does show two contracts through DHSS. I have seen the contract though, as a result of an FOIA request I submitted last weekend. This contract states PCG will work with the Delaware DOE on implementation of the Random Moment In Time study and the DOE’s share of the annual cost reporting and cost reconciliation for fiscal years 2009-2012. The contract has been extended each year since it ended on June 30, 2012, and the current extension will expire on June 30, 2015.

Is the timing coincidental for when the Fordham study was released, clearly showing non-compliance on the part of the New Jersey DOE with FERPA regulations, and when Delaware was notified of non-compliance with this very similar reimbursement program and the same vendor? That is not for me to judge. Just to report the facts as best I can with the information provided to me.

The Delaware DOE is not selling IEP information to anyone. But pertinent and private information is being released to third party vendors all over the country, and transparency laws need to be much stronger in the USA so all parents know exactly who is seeing this type of personal information.

I am personally disgusted that anyone would need to see case notes from what I would otherwise assume to be a private and confidential session between a student and a psychologist or psychiatrist. It sounds like HIPAA and FERPA need to get together and come to terms with some discrepancies. I understand the need for a reimbursement program, and the fact that Delaware has recovered $8 million dollars in revenue from the Children’s Services Cost Recovery program is probably a good thing for the state coffers. But the price, as usual, is students and their personal information. Is $8 million worth the time, money and resources spent dealing with PCG on this project? I am sure PCG provides other types of services with DHSS, but the tally on their bill for the last four years alone, as per Delaware Online Checkbook, is over $12 million dollars, so what is Delaware truly getting out of this? I am quite sure the Random Moment In Time system is an annoyance and burdensome to the school based health providers. Some are never picked at all for this study, while others are picked multiple times. Most teachers have never heard of it.

Based on my findings on PCG, they are aligned with some of the most loathed and despised entities promoting Common Core State Standards and high-stakes testing. In a survey released by Gallup yesterday, it showed the country is very divided among those who support Common Core and those who oppose it. Many states are struggling with very pissed off teachers who are justified in their opposition to this federal intrusion into public schools. The US DOE has come under fire in the past couple months from the GOP Senate due to how Arne Duncan and his cohorts are conducting business. Even President Obama may have a lawsuit against him based in part on how his administration has handled education reform in America. But here is Delaware, with our Governor Markell, Secretary of Education Murphy, the DOE and the State Board of Education, proudly cheerleading what a growing number of parents in this state are beginning to hate. The government in Delaware has aligned itself with many of these entities that promote this faulty education agenda. Does the state have a back-up plan if something happens that outlaws Common Core and the tests that go along with it? They may want to start thinking about this if the current trends stay on the same track. Meanwhile, companies like PCG will continue to reap the benefits of the system that allowed them to become richer and richer.

UPDATED at 3:20pm: http://www.hockessincommunitynews.com/article/20140818/NEWS/140819818 Apparently someone hacked into the Delaware State Treasury website this morning. Although not on a state server, I ask once again, how secure is our children’s private information?

Helpful links to get more out of this article:

Delaware Online Checkbook

Random Moment In Time Training Manual

2008 Fordham Report

DOE 2013 Data Acquisition List

Delaware Awarded Contracts Website