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
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