STRTPs, QRTPs, CRTs, PRTFs and the IMD ExclusionBackground Since enactment of the Family First Prevention Services Act (FFPSA) in Feb. 2018, several national organizations (notably NOSAC and ACRC, among them) have raised concern about whether the Centers for Medicare and Medicaid Services (CMS) will classify Qualified Residential Treatment Programs (QRTP) as Institutes for Mental Disease (IMD), and in so doing, prevent states from claiming Federal Financial Participation (FFP) for behavioral health services provided to children and youth placed in QRTPs. Federal statute defines an IMD as “a hospital, nursing facility, or other institution of more than 16 beds that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services” (42 CFR §435.1009; ital. mine), but it wasn’t always that way. Institutes for Mental Disease and the “IMD Exclusion” When Congress passed Title XIX of the Social Security Act (Act) in 1965, the treatment of mental illness was primarily performed in institutional settings. States built and operated large mental institutions to house, treat and feed people with mental illness. In applying the requirements of the Act, CMS implemented a policy specifically excluding these large institutions from claiming FFP for any services provided a Medicaid beneficiary either inside or outside an IMD while that beneficiary is a patient in an IMD. This policy, generally termed the “IMD exclusion,” ensured that states, not the federal government, would continue to be responsible for the costs of those large state mental institutions. Exceptions to the IMD exclusion From the outset, certain facilities were omitted from the IMD exclusion. Facility-based psychiatric care for Medicaid beneficiaries over age 65 was never included, and in 1981, facilities with 16 beds or fewer were exempted from the IMD Exclusion. In-patient psychiatric care for beneficiaries under the age of 21 – i.e., children and youth covered by Medicaid – has been exempted since 1972, but it was not until 1990 that FFP was made available for children’s mental health care in facilities other than hospitals when CMS finalized a definition for Psychiatric Residential Treatment Facilities (PRTF). A PRTF is a “psychiatric facility” [without regard to the number of beds] “that is not a hospital and is accredited by the Joint Commission on Accreditation of Healthcare Organizations, the Commission on Accreditation of Rehabilitation Facilities, the Council on Accreditation of Services for Families and Children, or by any other accrediting organization with comparable standards that is recognized by the State.” So, PRTFs are IMDs that have specific requirements, provide treatment for beneficiaries under the age of 21, and are exempted from the IMD exclusion from FFP applied to facilities with 17 or more beds. The so-call “psych under 21” benefit for beneficiaries under age 21 was adopted in 2001. Under the benefit, “psychiatric hospital services” are reimbursable under Medicaid if provided by a psychiatric hospital, a general hospital with a psychiatric program that meets the applicable conditions of participation, or an accredited psychiatric facility that meets certain requirements, i.e.: a PRTF (42 C.F.R. §440.160). PRTFs then are psychiatric in-patient facilities that are not hospitals, but provide Medicaid reimbursable “psychiatric hospital services” for children and youth (see the attached comparison of STRTPs, QRTPs and PRTFs). As a psychiatric hospital service, the PRTF’s full cost of 24-hour care and treatment is reimbursable at the state’s match rate, including costs of “room and board.” CMS further clarifies what an IMD is The issue troubling national organizations is whether the FFPSA inadvertently defines QRTPs in such a way that CMS would consider QRTPs as IMDs, that is, as institutions that are primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services. If so and unless those institutions have 16 or fewer beds or are certified as PRTFs, states would be excluded from claiming FFP for mental health services for beneficiaries under age 21 placed there. CMS has published sub-regulatory guidance on the definition of an IMD which notes that “a facility’s IMD status depends on whether the evaluation of the information pertaining to the facility establishes that its overall character is that of a facility established and/or maintained primarily for the care and treatment of individuals with mental diseases. To the extent any of the following guidelines are met,” the manual states, “a thorough IMD assessment must be made: (italics mine)
The last two bulleted criteria are potentially the most troubling especially when compared to some of the QRTP requirements. Qualified Residential Treatment Programs and the risk of IMD classification QRTPs are just one of 5 categories of foster care residential programs defined by the FFPSA in which states may place foster children and youth, and claim FFP under Title IV-E of the Social Security Act for their care and supervision. QRTPs however, comprise the only type of residential program for which FFPSA provides guidance regarding assessment, admission, program and staffing. FFPSA defines a QRTP as “a program that…has a trauma-informed treatment model that is designed to address the needs, including clinical needs as appropriate, of children with serious emotional or behavioral disorders or disturbances, and with respect to a child, is able to implement the treatment identified for the child by the assessment of the child….” (Chap. 2, Sec. 2651(a)(4)(A) [ital. mine] FFPSA further defines QRTPs through staffing requirements; i.e., having “registered or licensed nursing staff and other licensed clinical staff who…provide care within the scope of their practice…, are on-site in accordance with the treatment model…, and are available 24 hours a day and 7 days a week….” (Chap. 2, Sec. 2651(a)(4)(B)(i-iii) [ital. mine] FFPSA also requires that a “qualified individual” (42 USC 675(c)(1)(D) complete an assessment of each child or youth referred for QRTP placement to include “a list of child-specific short and long-term mental and behavioral health goals” (42 USC 675 (c)(1)(A)(iii). The “qualified individual” is defined as “a trained professional or licensed clinician who is not an employee of the State agency and who is not connected to, or affiliated with, any placement setting in which children are placed by the State” [ital.. mine]. A QRTP that “specializes in providing psychiatric/psychological care and treatment,” which the FFPSA seems to call for, or in which the current need for institutionalization for more than 50% of all the resident children or youth results from mental diseases, conceivably could be considered by CMS as an IMD. If that QRTP is not certified as a PRTF and has more than 16 beds – even if the facility is not accredited as a psychiatric facility and is not under the jurisdiction of the state’s mental health authority – CMS could determine that it meets the threshold for classification as an IMD. FFPSA, moreover, mandates that QRTPs be accredited by one of the same accrediting bodies CMS requires for PRTFs – i.e., Joint Commission on Accreditation of Healthcare Organizations, the Commission on Accreditation of Rehabilitation Facilities, and the Council on Accreditation of Services for Families and Children – but the category of licensure is up to the organization whose program is being accredited. As for the first and third bullets in the section above, jurisdiction over facilities varies by state and in some states, such as California, residential programs (e.g., CTFs and STRTPs) are subject to dual jurisdiction: social services and mental health. Licensure too is a state issue; whether QRTPs will receive “psychiatric facility” licenses is up to each state. California does not provide PRTF services, but it does provide mental health services to children and youth in residential care settings PRTF is an optional Medicaid service (42 U.S.C. 1396d(a); states may choose whether to include PRTF services as a Medicaid benefit. California is one of 17 states that does not provide for PRTF services in its State Plan; that said, California like all states is required to provide access to those services to beneficiaries under age 21 for whom it is a medical necessity, either through some other means or in a PRTF in another state. Under Medicaid, admission of a child or youth to a PRTF is a question of medical necessity: Is it medically necessary that this beneficiary receive in-patient psychiatric treatment in order to ameliorate his or her mental health condition? By contrast, placement of a child or youth in a California group home or STRTP, or in a QRTP for foster care is a question of whether it meets the child or youth’s needs for care and supervision better than a less restrictive level of care. Youth in foster care residential placements, however, almost invariably have significant mental health treatment needs. All California children and youth in foster care are statutorily eligible for full-scope Medi-Cal (California’s Medicaid program) benefits, including the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) benefit, which covers behavioral health as well as physical health needs and for which FFP can be claimed. Mental health services for foster children and youth placed in California group homes and more recently in Short-Term Residential Therapeutic Programs (STRTP) have been provided for by county mental health plans primarily contracting with the nonprofit organizations that operate the residential programs to deliver out-patient “specialty mental health services” to the children and youth in their care. Are STRTPs and CTFs at risk for being classified as IMDs? Both CTFs and STRTPs have mental health programs that are certified by the Department of Health Care Services (DHCS) and therefore are under the jurisdiction of the “state’s mental health authority.” Both programs types “specialize in providing psychiatric/psychological care and treatment” – indeed, they are required to be certified to provide mental health services – and it is highly likely that the “current need for institutionalization for more than 50% of all the patients in” any given STRTP or CTF “results from mental diseases.” Arguably, even absent the QRTP requirements, a Community Treatment Facility (CTF) or STRTP having the characteristics noted above could be at risk today for classification as an IMD and subject to the IMD exclusion. Although, this has never occurred in California, some CMS regional offices, especially in the Midwest and South, have disallowed FFP for Medicaid mental health services provided children and youth placed in foster care residential facilities that the Regions, based on guidance in The State Medicaid Manual, determined to be IMDs. How great is the risk? The short answer is that the level of risk is unknown. So far, and to the best of this writer’s knowledge, CMS has been mum on the issue of QRTPs, especially since no QRTPs yet exist. While The State Medicaid Manual provides guidelines for determining whether an institution is an IMD, the guidance is ambiguous, leaves much to individual state interpretations of federal policy, and has resulted in inconsistent decision-making and guidance from regional CMS offices when reviewing state Medicaid plans. Clearly, California’s group home/STRTP/CTF arrangement has passed muster in federal Region 9 for many years. The federal FFPSA requirements for QRTPs just seem to elevate the issue and increase the risk that foster care residential programs could be reclassified as IMDs. In arguing for the elimination of the IMD exclusion in 2009, the national Association for Children’s Behavioral Health concluded, “An examination of recent changes in several states directed by the CMS regional offices and the monitoring of financial audits in other states reveals that children’s mental health services are severely threatened and many are at risk of dissolution. States are constantly under the threat of exposure for audit and recoupment of federal matching payments. Providers are threatened with rate reductions, service and reimbursement restructuring, while continuing to provide needed care and services. Children are denied access to necessary services to which they are entitled.” The proposed fix(es) The National Organization of State Associations for Children (NOSAC) has called on Congress for an “immediate fix.” The Association asks Congress “to work with officials at the CMS and the Administration for Children and Families to issue guidance that clarifies that QRTPs are not IMDs and should be an exception to the IMD exclusion.” There also has been a move afoot for a number of years to abolish the IMD exclusion as archaic and unreasonably constraining for states in meeting the mental health treatment and substance use treatment needs of their Medicaid beneficiaries. |