Medicaid Contract Purchasing Specifications

Children with Behavioral Health Needs

Chapter II: “Prime/Subprime” Approach

Part 1. Duties of Contractor

§101. In General

§102. Identification of Enrolled Children with Behavioral Health Needs

§103. Scope of Benefit

§104. Protocol for Coordination of Behavioral and Non-Behavioral Health Benefits

§105. Enrollment and Disenrollment

§106. Information to Enrolled Children

§107. Quality Measurement and Improvement

§108. Data Collection and Reporting

§109. Enrolled Child Safeguards

§110. Subcontract

§111. Remedies for Noncompliance

§112. Other Applicable Federal and State Requirements

§113. Definitions

§101. In General

(a) Duty to Identify Enrolled Children with Behavioral Health Needs — Contractor and each provider participating in Contractor’s provider network shall comply with the requirements of §102(b).

(b) Basic Service Duty — Contractor shall, for each enrolled child with behavioral health needs (as defined in §113(f)), cover and furnish, or arrange through the subcontract under §110 with Subcontractor to furnish, the items and services enumerated under §103.

(c) Treatment Plan and Inpatient Discharge Plan — Contractor shall, for each enrolled child with behavioral health needs (as defined in §113(f)), comply with:

(1) the requirements of §205A relating to the development and implementation of a treatment plan; and

(2) in the case of a child who is admitted to a facility, the requirements of §205B relating to the development and implementation of an inpatient discharge plan.

(d) Delegation¹ — Contractor may delegate duties under [drafter insert name of purchasing document] to Subcontractor only if the following requirements are met:

(1) Subcontract — The delegation of any duty from Contractor to Subcontractor is effective only to the extent that the delegation is set forth in the subcontract under §110 approved by Purchaser for the term specified in §110(b);

(2) Contractor’s Ultimate Responsibility — Notwithstanding any delegation of a duty of Contractor under paragraph (1), Contractor shall maintain ultimate responsibility for adhering to, and otherwise fully complying with, the requirements, terms, and conditions of [drafter insert name of purchasing document];

(3) Primary Responsibility of Contractor in Event of Dispute — In the event of a dispute between Contractor and Subcontractor relating to the furnishing of an item or service covered under §103to an enrolled child with behavioral health needs (as defined in §113(f)), Contractor shall be responsible for furnishing, or arranging for the furnishing of, the item or service during the pendency of the dispute, subject to the financial reconciliation as provided under §110(f)(3).

(e) Family Participation — Contractor shall ensure that Subcontractor, and the providers participating in Subcontractor's provider network, comply with the family participation requirements described in §201(d).

(f) Other Duties — In the case of an enrolled child with behavioral health needs (as defined in §113(f)) who has been referred to Subcontractor under §102(c), the following duties shall continue to apply to Contractor with respect to the furnishing of items and services that are the responsibility of Contractor under §103:

(1) Part 4 of MEDICAIDSPECS (relating to Provider Selection and Assignment);

(2) Part 5 of MEDICAIDSPECS (relating to Provider Network);

(3) Part 6 of MEDICAIDSPECS (relating to Access Standards); and

(4) Part 7 of MEDICAIDSPECS (relating to Relationships with Other State and Local Agencies).

§102. Identification of Enrolled Children with Behavioral Health Needs

Commentary: The basic service and other duties of Contractor under §101 apply with respect to enrolled children with behavioral health needs. Because not all of the children enrolled in Contractor have behavioral health needs, a mechanism is needed to identify such children, both upon initial enrollment and when behavioral health needs arise during the course of enrollment. The following illustrative language provides 3 avenues for identifying those enrolled children who have behavioral health needs: information supplied by Purchaser or other State agencies (subsection (a)); an initial assessment of newly enrolled children conducted by Contractor (subsections (b)(1) and (b)(4)); or a determination made by a provider participating in Contractor's network (subsections (b)(2) and (b)(4)). Upon a determination that a child is a child with behavioral health needs, the Contractor has a duty under subsection (c) to refer the child to the subcontracting BHO to receive mental health and substance abuse services and carry out the duties described in Part 2 of these specifications.

(a) Duty of Purchaser to Assist in Identification of Children with Behavioral Health Needs²

In general, whether a Medicaid-eligible child enrolled in Contractor is a child with behavioral health needs is more likely to be known by the state Medicaid agency (or another state or local agency) than by the Contractor. For example, Purchaser will have access to fee-for-service claims data or managed care encounter data with respect to Medicaid-eligible children which would describe the utilization of behavioral health services by the child. The following illustrative language sets forth duties of Purchaser to notify Contractor of the names and eligibility numbers of those enrolled children whom Purchaser is able to identify as having behavioral health needs. Purchasers may wish to consider establishing interagency agreements or other arrangements with state mental health agencies, state child welfare agencies, and state or local juvenile justice to facilitate the exchange of information regarding the identification of such children. Purchasers could transmit such information to Contractors at the time of enrollment of a Medicaid-eligible child with behavioral health needs. Of course, the exchange and transmission of such information is subject to confidentiality and informed consent requirements applicable under state or federal law. For references to applicable federal rules, see §109(b) and (d).

(1) Purchaser Information — Purchaser shall make available to Contractor on a [ ] basis the name and Medicaid eligibility number of each enrolled child whom Purchaser has identified from [drafter insert reference to Purchaser’s Medicaid information system] as a child with behavioral health needs (as defined in §113(d)).

(2) Information from other State Agencies³ — Purchaser shall make available to Contractor on a [ ] basis the name and Medicaid eligibility number of each enrolled child with respect to whom the [drafter insert name of State Title V Agency, State Child Welfare Agency, or other appropriate state agency] (with the prior written consent of the child’s family or caregiver) have notified Purchaser that the child is:

(A) receiving services under an IEP (as defined in§113(h)) or an IFSP (as defined in §113(i)); or

(B) receiving services under a plan for the child under §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, 45 C.F.R. §84.33 or 34 C.F.R. §104.33.

(b) Duty of Contractor to Identify Children with Behavioral Health Needs⁴

(1) Newly Enrolled Children — In the case of a newly enrolled child (as defined in paragraph (4)) who has not been identified by Purchaser as an enrolled child with behavioral health needs under subsection (a),

(A) Contractor shall conduct an initial assessment (as defined in paragraph (3)) within [ ] days of the child’s enrollment;

(B) if, as a result of the initial assessment conducted under subparagraph (A), the primary care provider is able to make a determination that the child is a child with behavioral health needs (as defined in §113(d)), Contractor shall comply with the requirements of subsection (c) (relating to referrals to Subcontractors);

(C) if, subsequent to the initial assessment conducted under subparagraph (A), the primary care provider determines that additional diagnostic procedures covered under §103are necessary to enable the provider to make a determination that the child is a child with behavioral health needs, Contractor shall furnish or arrange for the furnishing of such diagnostic procedures within [ ] days of the initial assessment, unless the child’s family or caregiver does not give written consent prior to such diagnostic procedures;

(D) if, as the result of additional diagnostic procedures under subparagraph (C), the child is determined to be a child with behavioral health needs, Contractor shall comply with the requirements of subsection (c) (relating to referrals to Subcontractors); and

(E) if, as the result of additional diagnostic procedures under subparagraph (C), the child is determined not to be a child with behavioral health needs, Contractor shall comply with the requirements of paragraph (5) (relating to second opinions).

(2) Other Enrolled Children — In the case of an enrolled child who is not a newly enrolled child (as defined in paragraph (4)) and who has not been identified by Purchaser as a child with behavioral health needs under subsection (a), Contractor shall comply with the requirements of subsection (c) (relating to referrals to Subcontractors) if:

(A) a provider participating in Contractor’s provider network has determined, on the basis of an encounter with the child, that the child is a child with behavioral health needs;

(B) the child, or the child’s family or caregiver, has identified the child as having a developmental or behavioral condition and a provider participating in Contractor’s provider network has determined that the child is a child with behavioral health needs; or

(C) the child has been identified as a child with behavioral health needs under paragraph (5) (relating to second opinions).

(3) Initial Assessment Defined — An initial assessment is an encounter between an enrolled child and a primary care provider participating in Contractor’s provider network at which the provider administers [drafter insert specification for encounter form] appropriate to the age of the child. The initial assessment may be conducted by a provider participating in Contractor’s provider network during an EPSDT screening encounter described in §102(b)(1) of MEDICAIDSPECS.

(4) Newly Enrolled Child Defined — A newly enrolled child is a child (as defined in §113(f)) who:

(A) has enrolled (or been enrolled by Purchaser) in Contractor for no more than [ ] months; and

(B) has not enrolled (or been enrolled) in Contractor (or in another managed care organization contracting with Purchaser) for at least [ ] months prior to the effective date of enrollment in Contractor.

(5) Second Opinion — If in the case of a child described in paragraphs (1) or (2), the child is determined not to be a child with behavioral health needs (as defined in §113(d)), Contractor shall:

(A) offer the family or caregiver of the child an opportunity for a second opinion from a behavioral health provider (as defined in §113(b)):

(i) participating in Contractor’s provider network selected by the family or caregiver; or

(ii) if no behavioral health provider participating in Contractor's provider network is qualified to make the determination with respect to the child, from behavioral health provider selected by the child's family or caregiver and the child's primary care provider;

(B) pay for the services of the behavioral health provider selected under subparagraph (A) (and any diagnostic procedures ordered by the provider in connection with the second opinion); and

(C) ensure that if, in the opinion of the provider, the child is a child with behavioral health needs, the initial determination and the second opinion are reviewed by Contractor’s Medical Director and, within [ ] of the second opinion, the Medical Director makes a final determination as to whether Contractor has a duty to the child under subsection (c) relating to the referral of the enrolled child to Subcontractor.

(6) Inquiries into Existence of Disability — In carrying out its duties to identify children with behavioral health needs under this subsection, Contractor shall comply with the requirements of §109(f) relating to unnecessary inquiries into the existence of a disability.

(c) Duty to Refer Enrolled Children with Behavioral Health Needs to Subcontractor — Contractor shall, within [ ] days of the determination, refer each enrolled child determined to be an enrolled child with behavioral health needs enumerated in paragraphs (1) through (5) to Subcontractor consistent with the subcontract under §110:

(1) an enrolled child identified to Contractor by Purchaser under subsection (a);

(2) a newly enrolled child determined to be a child with behavioral health needs during the initial assessment under subsection (b)(1);

(3) an enrolled child determined to be a child with behavioral health needs by a provider participating in Contractor’s provider network under subsection (b)(2);

(4) an enrolled child determined to be a child with behavioral health needs through a second opinion under subsection (b)(5); and

(5) an enrolled child receiving services under an IEP (as defined in §113(h)) or an IFSP (as defined in §113(i)) at the time of enrollment who has not been identified to Contractor by Purchaser under subsection (a).

§103. Scope of Benefit

(a) Covered Items and Services⁵ — Contractor shall furnish, or arrange through Subcontractor for the furnishing of, to an enrolled child with behavioral health needs (as defined in §113(f)), the items and services covered under Part 1 and Part 1A of MEDICAIDSPECS, www.gwu.edu/~chsrp.

(b) Items and Services Furnished Through Subcontractor — Subject to §110(e)(2), Contractor shall ensure that Subcontractor furnish, to each enrolled child with behavioral health needs (as defined in §113(f)), the items and services enumerated in §202 that Subcontractor has a duty to furnish under the subcontract described in §110.

(1) Duty of Purchaser — Contractor has no duty under [drafter insert name of purchasing document] to furnish, or arrange for the furnishing of, the following items and services:

(A) [drafter insert list of items and services covered under state Medicaid plan (or in the case of EPSDT services, eligible for federal matching payments), but excluded from coverage under this purchasing agreement].

(2) Information to Enrolled Children — Contractor shall comply with the requirements of §106(b)(2)and (5) relating to provision of information to enrolled children with behavioral health needs (and the families and caregivers of such children) regarding access to items and services described in paragraph (1).

§104. Protocol for Coordination of Behavioral and Non-Behavioral Health Benefits

Commentary: One of the critical issues in developing “prime/subprime” purchasing agreements is the coordination of services among providers participating in the networks of the Contractor and the Subcontractor. The illustrative language in §103(c) is designed to clarify the service responsibilities of the Contractor vis-à-vis the Purchaser. The illustrative language below is designed to enable the "prime" Contractor and the Subcontractor to clarify their respective service responsibilities through a written protocol. This protocol, in turn, would be incorporated into the subcontract governing the relationship between the "prime" and the "subprime" outlined in §110. For a discussion of this coordination issue see Teitelbaum et al., “Selected Key Issues in the Development and Drafting of Public Managed Behavioral Health Care Carve-Out Contracts,” Issue Brief #3, Managed Behavioral Health Care Issue Brief Series, GW Center for Health Services Research and Policy, (January 1999), pp. 4-5, www.samhsa.gov.

(a) In General — Contractor shall:

(1) develop a written protocol that meets the requirements of this section;

(2) incorporate the written protocol into the subcontract under §110;

(3) ensure that the providers participating in Contractor’s provider network comply with the written protocol under paragraph (1); and

(4) ensure that Subcontractor, and providers participating in Subcontractor’s provider network, comply with the written protocol under paragraph (1).

(b) Specification of Service Responsibilities — The written protocol described in subsection (a) shall specify the items and services covered with respect to an enrolled child with behavioral health needs (as defined in §113(f)) (other than prescription drugs) for the furnishing of which:

(1) Contractor is responsible under §103; and

(2) Subcontractor is responsible under §202.

(c) Prescription Drugs — With respect to prescription drugs covered under §103and§202, the written protocol described in subsection (a) shall specify:

(1) the drugs for the furnishing of which Contractor is responsible, and the formulary or other limitations on such drugs;

(2) the drugs for the furnishing of which Subcontractor is responsible, and the formulary or other limitations on such drugs;

(3) the circumstances under which a provider participating in Subcontractor’s provider network may prescribe, with respect to an enrolled child with behavioral health needs, a drug the furnishing of which is the responsibility of Contractor under paragraph (1); and

(4) the circumstances under which a provider participating in Contractor’s provider network may prescribe, with respect to an enrolled child with behavioral health needs, a drug the furnishing of which is the responsibility of Subcontractor under paragraph (2).

(d) Practice Guidelines for Co-occurring Conditions — The written protocol described in subsection (a) shall:

(1) set forth the practice guidelines to be followed by providers (whether participating in Contractor’s or Subcontractor’s provider network) responsible for the clinical management of an enrolled child with behavioral health needs who has been diagnosed as having co-occurring physical and behavioral health conditions; and

(2) specify the manner in which:

(A) Contractor ensures that providers participating in Contractor’s provider network follow the practice guidelines described in paragraph (1); and

(B) Subcontractor ensures that providers participating in Subcontractor’s provider network follow the practice guidelines described in paragraph (1).

(e) Notification of Critical Incidents or Events — The written protocol described in subsection (a) shall specify procedures consistent with the requirements of §215(b) (relating to confidentiality safeguards) under which:

(1) a provider participating in the provider network of Contractor or Subcontractor who observes or is informed of an event or incident adversely affecting the health of an enrolled child with behavioral health needs (as defined under §113(f)) notifies within [ ] hours of the event or incident:

(A) the child’s primary care provider participating in Contractor’s provider network; and

(B) the child’s case manager under §205; and

(2) the primary care provider of an enrolled child with behavioral health needs notifies the behavioral health provider on the child’s multidisciplinary team under §209 of any change in the child’s health status that:

(A) the primary care provider observes or of which the primary care provider is informed; and

(B) in the professional judgment of the primary care provider should be brought to the attention of the behavioral health provider.

(f) Patient Information — The written protocol described in subsection (a) shall specify:

(1) the procedures through which providers participating in Contractor’s or Subcontractor’s provider networks (including the enrolled child’s case manager under §205) shall, consistent with the confidentiality safeguards described in §109(b) , exchange information relating to an enrolled child with behavioral health needs (defined in §113(f)) that is necessary for the effective referral, diagnosis, or treatment of the child; and

(2) the manner in which case information relating to an enrolled child with behavioral health needs (defined in §113(f)) is transferred, consistent with the confidentiality safeguards described in §109(b) , between Contractor’s information system under §108and Subcontractor’s information system under §214 including the use of a single case identifier common to both information systems.

§105. Enrollment and Disenrollment

Commentary: Under current Medicaid, states have the option of mandating enrollment by Medicaid beneficiaries in BHOs. A recent GAO report found that, among four states with mandatory enrollment, only one offered beneficiaries a choice among BHOs. General Accounting Office, Medicaid Managed Care: Four States' Experiences with Mental Health Carveout Programs (September 1999), GAO/HEHS-99-118, pp. 10-11, www.gao.gov. Purchasers will need to adapt the following illustrative language to their preferred enrollment policy.

(a) Enrollment Procedures — Contractor shall comply with the requirements of Part 2 of MEDICAIDSPECS to the extent consistent with the requirements of this section.

(b) Duties Related to Children with Behavioral Health Needs Receiving Treatment at Time of Enrollment

(1) Children under IEP or IFSP — In the case of an enrolled child with behavioral health needs (as defined in §113(f)) who at the time of enrollment is receiving services under an IEP (as defined in §113(h)) or an IFSP (as defined in §113(i)), Contractor shall comply with the requirements of §205A(e).

(2) Children under Child Welfare Agency Plan — In the case of an enrolled child with behavioral health needs (as defined in §113(f)) who at the time of enrollment is, or should be, receiving behavioral health services under [drafter insert reference to treatment plans issued by or at the request of the State Child Welfare Agency], Contractor shall carry out the [drafter insert reference to plan] until Contractor has fully implemented the requirements of §205A (relating to the development of a treatment plan) with respect to the child.

Commentary: The following illustrative language would apply to children who at the time of enrollment are receiving behavioral health services, whether from another BHO or MCO. For illustrative language relating to memoranda of understanding between Contractor and child welfare or other agencies, see §212

(3) Other Children — In the case of an enrolled child with behavioral health needs (as defined in §113(f)) who is not described in paragraphs (1) or (2) and who at the time of enrollment is receiving behavioral health services, Contractor shall:

(A) comply with the applicable provisions of the subcontract under §110; or

(B) in the absence of provisions described in subparagraph (A), reimburse the provider furnishing the behavioral health services to the child in the same amounts, and on the same terms, as Contractor would reimburse a provider participating in Contractor’s provider network for the same services, until Contractor has fully implemented the requirements of §205A (relating to the development of a treatment plan) with respect to the child.

(1) Inaccurate Provider Information — Consistent with §401(d) of MEDICAIDSPECS, Contractor agrees that Purchaser has the authority and the responsibility to disenroll from Contractor for cause an enrolled child with behavioral health needs (as defined in §113(f)) if Contractor fails to provide to the child (and the child’s family or caregiver) accurate, current information regarding participation of providers in Contractor’s provider network.

(2) No Behavioral Health Provider Accessible⁶ — If no behavioral health provider (as defined in §113(b)) participating in Contractor's provider network is willing to accept an enrolled child with behavioral health needs (as defined in §113(f)) as a patient and is accessible under §211(c) to the child, Contractor agrees that:

(A) the family or caregiver of the child (or in the case of an adolescent, the adolescent), has the right to request Purchaser to disenroll the child from Contractor for cause; and

(B) Purchaser has the authority and the responsibility to disenroll the child from Contractor for cause.

Commentary: The following illustrative language would prohibit a contracting MCO from requesting that Purchaser involuntarily disenroll a child with behavioral health needs under any circumstances, including: the treatment of a child is too expensive, the child refuses treatment or misses appointments, the child (or the child’s family or caregiver) behaves in ways that are abusive or disruptive, the child (or the child’s family or caregiver) has not filled out the right paperwork, or the child has exercised the child’s rights under a grievance or appeals system. Contractor would be able to request the disenrollment of a child who no longer has behavioral health needs.

(d) Grounds for Involuntary Disenrollment⁷ — Contractor may not terminate or request the termination of enrollment of any enrolled child with behavioral health needs (as defined in §113(f)) who has not requested to disenroll and who remains eligible for [drafter insert name of state Medicaid program].

(e) Duties Related to Children with Behavioral Health Needs Receiving Treatment at Time of Disenrollment

(1) Children Receiving Treatment at the Time of Voluntary Disenrollment — In the case of an enrolled child with behavioral health needs (as defined in §113(f)) who, at the time of voluntary disenrollment under subsection (a), is under treatment for a particular diagnosis or condition, Contractor shall:⁸

(A) continue to cover and furnish, or arrange for the furnishing of, the items or services in connection with such treatment, regardless of whether the provider furnishing the item or service participates in Contractor's provider network, and with no increase in cost-sharing obligations under §1003 of Part 10 of MEDICAIDSPECS, until the earlier of the date on which:

(i) the child is enrolled in a successor behavioral health organization;

(ii) Contractor has received notice from Purchaser that a fee-for-service provider has assumed responsibility for the treatment of the child; or

(iii) the child’s treatment has been completed;

(B) arrange at Contractor’s or Subcontractor’s expense, as specified in the subcontract under §110, for the transfer of the child’s medical records to the successor behavioral health organization or provider assuming responsibility for care of the child within [ ] days of request by:

(i) the child’s family or caregiver; or

(ii) subject to the written consent of the child’s family or caregiver, the successor behavioral health organization or provider;

(C) ensure that behavioral health providers who were furnishing care to the child at the time of disenrollment are:

(i) notified of the child’s disenrollment within [ ] days of the disenrollment; and

(ii) in the case of a provider that participates in Contractor's provider network, made available for review of the child’s treatment with the successor behavioral health organization or provider assuming responsibility; and

(D) continue to comply with the requirements under §109and §215 relating to enrolled child safeguards.

(2) Children Receiving Treatment at the Time of Involuntary Disenrollment Due to Loss of Eligibility — In the case of an enrolled child with behavioral health needs (as defined in §113(f)) who is involuntarily disenrolled from Contractor under [drafter insert name of purchasing document] because of the loss of eligibility for [drafter insert name of State’s Medicaid program] and who, at the time of involuntary disenrollment, is under treatment, Contractor shall continue to furnish, or arrange for the furnishing of, items and services specified in the child’s treatment plan under §205A for a period of [ ] after the effective date of disenrollment.

(f) Option to Disenroll in the Event of Insolvency

(1) Option — In the event that Contractor files a petition for bankruptcy under Chapter VII or Chapter XI of the Federal Bankruptcy Code, or is subject to [drafter insert reference financial supervision or receivership proceedings under state law], Purchaser shall allow the family or caregiver of an enrolled child with behavioral health needs (as defined in §113(f)) to disenroll the child from Contractor for cause.

(2) Duties of Contractor toward Children Receiving Treatment — In the case of a child who is disenrolled for cause under paragraph (1) and who, at the time of disenrollment, is under treatment, Contractor shall continue to furnish, or arrange for the furnishing of, items and services specified in the child’s treatment plan under §205A for a period of [ ] after the effective date of disenrollment.

§106. Information to Enrolled Children

Commentary: The following illustrative language would require Contractor to provide information to newly enrolled children with behavioral health needs through an enrollee handbook (including the content and understandability requirements), a provider directory, and other means specified in the illustrative language at Part 3 of MEDICAIDSPECS, www.gwu.edu/~chsrp. Subsection (b) would supplement these generic requirements for an enrollee handbook with additional elements specific to children with behavioral health needs

(a) In General — Contractor shall comply with the requirements of Part 3 of MEDICAIDSPECS to the extent consistent with the requirements of this section.

(b) Contents of Enrollee Handbook — Contractor’s enrollee handbook shall contain the following information relating to the delivery of services for a child with behavioral health needs:

(1) items and services covered under §103(c)and §202;

(2) items and services that remain the duty of Purchaser under §103(c);

(3) an explanation of the manner and frequency in which [drafter insert reference to state's Medicaid EPSDT benefit] covered under §103(a) are to be furnished;

(4) specific instructions on how to obtain the items and services covered under §103(a)and §202through the child's multidisciplinary team under §209;

(5) specific instructions on where and how to obtain the items and services that remain the duty of Purchaser under §103(c), including how transportation is provided;

(6) an explanation of the development and implementation of a treatment plan under §205A, including provision for participation by the family or caregiver as a member of the child’s multidisciplinary team;

(7) an explanation of the assistance available from a case manager under §205(c);
(8) an explanation of how to use Contractor’s crisis hotline under §211(b)(1) and Contractor’s crisis services under §203(b)(1);

(9) accommodations made by Contractor as required by the Americans with Disabilities Act, 42 U.S.C. §12101 et seq.;

(10) grievance and appeal procedures under [drafter insert reference to relevant provisions in purchasing document] and state fair hearing rights under §215(c); and

(11) opportunities for participation on the Family Advisory Board established and maintained by Subcontractor under §201(d)(3).

§107. Quality Measurement and Improvement

(a) In General — Contractor shall comply with the requirements of Part 8 of MEDICAIDSPECS to the extent consistent with the requirements of this section.

(b) Studies of Quality of Services Furnished to Enrolled Children with Behavioral Health Needs — Contractor shall ensure that Subcontractor conducts, or arranges for the conduct of, the studies enumerated in §213(a).

(c) Clinical Studies — Contractor shall ensure that Subcontractor conducts, or arranges for the conduct of, the studies enumerated in §213(b).

(d) Core Performance Measures — Contractor shall ensure that Subcontractor reports to Contractor data necessary to apply the performance measures enumerated in §213(c) (relating to the furnishing of substance abuse services).

§108. Data Collection and Reporting

Commentary: The following illustrative language would require Contractor to collect and report encounter data through a cross-reference to §907 of the CHSRP Medicaid Pediatric Purchasing Specifications (MEDICAIDSPECS). In addition, the language would require the collection and reporting of certain specific types of data set forth in subsections (b) and (c). Depending upon the precise content of the encounter data set used by Purchaser and Contractor, the requirements of subsections (b) or (c) may, in whole or in part, duplicate the encounter data; in such cases, the requirements of subsection (b) and (c) should be modified accordingly.

A recent General Accounting Office review of Medicaid BHOs found that encounter data was "untimely, incomplete, and inaccurate." The GAO noted: "Encounter data require adequate information systems, and when data from several systems are combined, both technical and definitional issues must be resolved….If states and plans addressed some of these data problems, encounter data could be used to monitor plan performance…." Medicaid Managed Care: Four States' Experiences with Mental Health Carveout Programs (September 1999), GAO/HEHS-99-118, p. 26, www.gao.gov. For language in state Medicaid MCO or BHO contracts relating to mental health and substance abuse data reporting, see CHSRP, Negotiating the New Health System, 3^rd Ed., Volume 2, Part 4, Table 5.3, pp. 5-444 – 5-491, www.gwu.edu/~chsrp.

The impact of inadequate data collection and reporting upon the quality of care is illustrated by a recent report on behavioral health services for Medicaid-eligible children in Arizona: "Significant time, energy, and resources at the state, [regional], and provider levels appear to be devoted to information gathering that has minimal impact on improving performance and fidelity of the system. There is little effective synthesis of the information that is collected. The [state agency's] data system is missing so many fields as to render it relatively useless for many purposes. Essentially, the existing quality assurance systems have little utility for improving practice and results for children -- consuming substantial resources without observed benefits." Human Systems and Outcomes, Inc., Follow-up Review of Behavioral Health Services for Title XIX Eligible Children in Maricopa County, Arizona (June 2000). For a copy of the report, call the Arizona Center for Disability Law at 602-274-6287.

(a) In General — Contractor shall comply with:

(1) the requirements of §907 of MEDICAIDSPECS (relating to encounter data) and the remainder of Part 9⁹ of MEDICAIDSPECS; and

(2) the requirements of subsections (b) and (c), but only to the extent Contractor does not meet such requirements through the data collected and reported under paragraph (1).

(b) Data Specific to Children with Behavioral Health Needs — Contractor shall collect and report to Purchaser, in such form and manner and for such period as Purchaser specifies, the following data:

(1) the number of enrolled children with behavioral health needs (as defined in §113(f)), and the number of families or caregivers of such children;

(2) the number of families or caregivers of enrolled children with behavioral health needs who are satisfied with the accessibility and quality of the services specified in the child’s treatment plan under §205A;

(3) the number of enrolled children with behavioral health needs who are diagnosed with both a mental health condition and with alcohol or other substance abuse;

(4) the number of enrolled children with behavioral health needs who:

(A) were admitted to an inpatient behavioral health facility; and

(B) with respect to whom an inpatient discharge plan was prepared under §205B;

(5) the results of quality studies under §213(a) and clinical studies under §213(b); and

(6) the number of each of the following types of adverse incidents involving children with behavioral health needs during the period of enrollment:

(A) suicide;

(B) attempted suicide;

(C) drug overdose;

(D) alcohol poisoning; and

(E) erroneous prescription of psychotropic medications;

(7) the number of enrolled children with behavioral health needs who request (or on whose behalf the child’s family or caregiver requests) crisis behavioral health services under §203(b) during the most recent calendar quarter and the number of children who receive such services;

(8) the number of enrolled children with behavioral health needs who are:

(A) discharged from an inpatient behavioral health facility following:

(i) an involuntary admission;

(ii) a voluntary admission;

(B) placed in seclusion during a stay at an inpatient behavioral health facility;

(C) subjected to physical or chemical restraint during a stay at an inpatient behavioral health facility;

(D) furnished outpatient services covered under §103within [ ]¹⁰ days of discharge from an inpatient behavioral health facility;

(E) readmitted to an inpatient behavioral health facility within the following time period of discharge from such a facility:

(i) 7 days;

(ii) 30 days;

(iii) 60 days; and

(iv) 90 days;

(9) the number of enrolled children with behavioral health needs, by [drafter insert racial or ethnic categories appropriate to Contractor's service area], who:

(A) were enrolled for at least [ ] months during the most recent contract year; and

(B) received prior authorization for the use of covered items and services during the most recent contract year; and

(10) [drafter insert other desired data elements].

(c) Data Specific to Children under the Jurisdiction of the State Child Welfare Agency — Contractor shall collect and report to Purchaser the data enumerated in subsection (b) with respect to enrolled children with behavioral health needs who are under the jurisdiction of [drafter insert name of State Child Welfare Agency] as indicated by:

(1) Purchaser; or

(2) the Agency (under the memorandum of understanding in §212(c)).

§109. Enrolled Child Safeguards

(a) In General — Contractor shall comply with the requirements of Part 10¹¹ of MEDICAIDSPECS to the extent consistent with the requirements of this section.

(b) Confidentiality Safeguards in Data Disclosure — In disclosing data to Purchaser under [drafter insert name of purchasing document], Contractor shall comply with 42 C.F.R. Part 2 pertaining to the confidentiality of data related to alcohol or substance abuse.

(c) Confidentiality Safeguards for Children with IEPs or IFSPs — In the case of an enrolled child with behavioral health needs (as defined in §113(f)) who is receiving services under an IEP (as defined in §113(h)) or IFSP (as defined in §113(i)), Contractor shall comply with:

(1) the requirements of 34 C.F.R. Part 99.31 implementing the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. §1232(g); and

(2) the confidentiality protections in the Individuals with Disabilities Education Act, 20 U.S.C. §1417(c) (with respect to an IEP), 34 C.F.R. §§300.560 – 300.577, and 20 U.S.C. §1439(a)(2), 34 C.F.R. §§303.400 – 303.425 (with respect to an IFSP).

Commentary: There are circumstances under which parents or caregivers may wish to share, or allow a provider participating in Contractor's network to share, confidential information regarding their child with other service providers or other individuals working with the child outside of Contractor's network. The following illustrative language would allow parents or caregivers to waive the confidentiality requirements in order to facilitate the exchange of information regarding the child to such individuals.

(d) Waiver of Confidentiality Safeguards at Request of Family — The requirements of subsections (b) and (c) may be waived with respect to an enrolled child with behavioral health needs by the child's family or caregiver only if:

(1) the waiver is granted in writing by the family or caregiver [ ] prior to its application;

(2) the waiver specifies the individuals to whom information regarding the child may be made available; and

(3) the waiver applies only with respect to a disclosure or exchange of information specified in the terms of the waiver.

(e) Confidentiality Safeguards for Adolescents — In the case of an enrolled child with behavioral health needs who is an adolescent (as defined in §113(a)), Contractor shall comply with the confidentiality requirements in §1002 of Part 10 of MEDICAIDSPECS (relating to confidentiality protections for enrolled adolescents).

(f) Unnecessary Inquiries — Consistent with §009(d) of MEDICAIDSPECS, Contractor shall ensure that any communication with an enrolled child with behavioral health needs (as defined in §113(f)) does not make unnecessary inquiries into the existence of a disability in violation of the Americans with Disabilities Act, 42 U.S.C. §12101 et seq.¹²

Commentary: The following illustrative language would extend the federal statutory and regulatory requirements applicable to state Medicaid agencies relating to due process protections for Medicaid beneficiaries to the BHOs with which those agencies contract. At least one state has already consented to the imposition of more stringent due process protections upon the state Medicaid agency and its contracting MCOs and BHOs. See Revised Consent Decree Governing TennCare Appeals, Grier v. Wadley, C.A. No. 79-3107 (M.D. Tenn., Oct. 26, 1999), available from Tennessee Justice Center (615-255-0331).

(g) Due Process¹³ — Contractor shall comply with the requirements of §1902(a)(3) of the Social Security Act, 42 U.S.C. §1396a(a)(3), and implementing regulations at 42 C.F.R. §§431.200 et seq., relating to notice, fair hearing, and continuation of coverage rights of an enrolled child with behavioral health needs (as defined in §113(f)) in the event of:

(1) a denial, termination, or reduction of an item or service covered under §103(a); or

(2) the failure to furnish an item or service covered under §103(a) with reasonable promptness.

(h) Other Rights

(1) Restraints and Seclusion — Contractor shall ensure that any psychiatric hospital used to furnish covered services to an enrolled child with behavioral health needs (as defined in §110(f)) complies with [drafter insert applicable restraint and seclusion protections under state law]¹⁴ with respect to the enrolled child.

(2) State Consumer Rights Laws — Contractor shall comply with [drafter insert reference to applicable state statutory or regulatory provisions relating to consumer rights].¹⁵

§110. Subcontract

Commentary: Under the “prime/subprime” approach to purchasing behavioral health services on a risk basis, Medicaid beneficiaries are enrolled in an MCO (the “prime” contractor), and those with behavioral health needs are referred to a Subcontractor (the “subprime”) for the provision of behavioral health services. States make capitation payments on behalf of these enrollees to the MCO; the MCO, in turn, negotiates payment arrangements with a Subcontractor (often a BHO) ranging from fee-for-service to full capitation. For recommendations concerning these subcontracting arrangements, see Stephen Moss, Contacting for Managed Substance Abuse and Mental Health Services: A Guide for Public Purchasers, Center for Substance Abuse Treatment, SAMHSA, Technical Assistance Publication (TAP) Series 22 (1998), pp. 106 - 107.

Because the dividing line between behavioral health needs and general health needs in an individual case is often unclear, and because behavioral health interventions can be expensive, there is significant potential for payment and service disputes between MCOs and their subcontracting BHOs. These “prime/subprime” disputes can result in the withholding of covered items and services from enrolled children with behavioral health needs – not because the medical necessity of the item or service is in question, but because there is no agreement on whether the furnishing of the item or service is the duty of the contracting MCO or the subcontracting BHO.

Under §101 above, an MCO may not delegate its duty to furnish covered behavioral health services unless it does so through a subcontract with a Subcontractor. The following illustrative language sets forth the elements of this subcontract, which are designed to clarify the responsibilities of the MCO and the subcontracting BHO with respect to the furnishing of covered items and services to enrolled children with behavioral health needs. This suggested language is intended to enable the contracting MCOs and their subcontractors to anticipate and resolve disputes regarding service responsibilities without denying or delaying the provision of covered services to enrolled children. The suggested language does not cover all of the issues that would need to be addressed in such subcontract, such as payment terms and amounts, revocation, remedies in the event of breach, etc.

(a) Purpose — The purpose of the subcontract described in this section shall be to coordinate, and clarify responsibility for, the furnishing of items and services covered under §103 to an enrolled child with behavioral health needs (as defined in §113(f)) on the part of Contractor and [drafter insert name of Subcontractor] (“Subcontractor”).

(b) Term — The requirements of the subcontract described in this section shall apply for the same period to which [drafter insert name of purchasing document] applies, regardless of the date on which the subcontract is entered into by Contractor and Subcontractor.

(d) Purchaser Approval

(1) In General — The subcontract described in this section shall not be effective until Purchaser, in writing, determines that the subcontract is in full compliance with the requirements of this section.

(2) Modifications — A modification to a subcontract determined to be in full compliance under paragraph (1) shall take effect only if Purchaser, in writing, determines that the subcontract as modified is in full compliance with the requirements of this section.

(e) Requirements — The subcontract described in this subsection shall:

(1) set forth Contractor’s agreement to perform the duties required of Contractor under Part 1 and to maintain ultimate responsibility for Subcontractor’s adherence to, and compliance with, the requirements, terms and conditions of [drafter insert name of purchasing document];

(2) set forth Subcontractor’s agreement to perform the duties required of Subcontractor under Part 2;

(3) set forth Subcontractor’s agreement not to delegate any duty required of Subcontractor under Part 2 or of Contractor under Part 1 to any other entity;

(4) specify the procedures for referral of an enrolled child identified by Contractor under §102 as a child with behavioral health needs (as defined in §113(d)) to Subcontractor;

(5) specify the responsibility for administrative costs incurred by Contractor or Subcontractor in implementing the duties described in paragraphs (1) and (2), including the costs of maintaining and transferring medical records in the event of disenrollment;

(6) incorporate in its entirety and make applicable to both Contractor and Subcontractor the written protocol under §104 relating to the coordination of behavioral and non-behavioral health benefits with respect to enrolled children with behavioral health needs (as defined in §113(f));

Commentary: The following illustrative language set forth in paragraphs (7) and (8) is premised on the policy that Contractor, which has a contactual relationship with the Purchaser, should be directly accountable to Purchaser for the performance of Subcontractor and its participating providers. Another approach would be to assign these review and monitoring duties to the Subcontractor, which has a direct contractual relationship with providers participating in its network.

(7) set forth Subcontractor’s agreement that Contractor shall:

(A) review the credentials of the providers participating in Subcontractor’s provider network to ensure that the requirements of §210 (relating to provider network) and §213 (relating to quality measurement) are met; and

(B) monitor on an ongoing basis the compliance of the providers participating in Subcontractor’s provider network with the terms and conditions of [drafter insert name of purchasing document] and, in the event of a failure of the provider to comply, take immediate action to prevent harm or avoid the denial of covered items and services to enrolled children with behavioral health needs;

(8) set forth Subcontractor’s agreement to submit, and to ensure that providers participating in Subcontractor’s provider network submit, on a timely basis to Contractor accurate and complete data necessary for Contractor to comply with the requirements of §108;

(9) set forth Subcontractor’s agreement to assist in the conduct of, and to ensure that providers participating in Subcontractor’s provider network assist in the conduct of, the studies of quality and the clinical studies under §213;

(10) set forth Subcontractor’s agreement that Subcontractor, and each provider participating in Subcontractor’s provider network, comply with applicable requirements under:

(A) Title XIX of the Social Security Act and implementing regulations and administrative guidance;

(B) [drafter insert name of state Medicaid plan] and implementing regulations and administrative guidance; and

(C) other federal and state laws, regulations, and administrative guidance applicable to Contractor under §112;

Commentary: The following illustrative language parallels that found in contracts between the federal Medicare program and Medicare MCOs. It is intended to clarify that the Medicaid funds paid to Subcontractor and its participating providers are subject to the safeguards of the federal False Claims Act, 31 U.S.C. §3729 et seq.

(11) set forth Subcontractor’s agreement that payments received under the subcontract with Contractor and Subcontractor for furnishing items or services to enrolled children with behavioral health needs are, in whole or in part, from Federal funds, and that Subcontractor and providers participating in Subcontractor’s provider network are subject to the laws and regulations that are applicable to recipients of Federal funds;

(12) set forth Subcontractor’s agreement that enrolled children with behavioral health needs are beneficiaries of [drafter insert reference to state Medicaid program] and are therefore not liable for any fees or charges other than nominal cost-sharing as authorized under [drafter insert reference to state Medicaid plan];

(13) set forth Subcontractor’s agreement that the Department of Health and Human Services, the Comptroller General, or their designee has the right to inspect, evaluate, and audit any pertinent contracts, books, documents, papers, and records of Subcontractor involving transactions related to [drafter insert name of purchasing document] for the period:

(A) during which [drafter insert name of purchasing document] is in effect; and

(B) during a period of [ ]¹⁶ years following the final date of Contractor's duties under the [drafter insert name of purchasing document];

(14) set forth Subcontractor’s agreement that an enrolled child with behavioral health needs is an intended third-party beneficiary to [drafter insert name of purchasing document] and to the subcontract under this section, and, as such, consistent with§111(b) is entitled to enforce the terms and conditions of such subcontract as a party against Subcontractor; and

(15) set forth Subcontractor’s agreement that the remedies for noncompliance described in §111 apply to Subcontractor to the same extent, and under the same circumstances, as they apply to Contractor.

(f) Disputes

(1) In General — In the event of a dispute (as defined in paragraph (5)), Contractor shall furnish, or arrange for the furnishing of, items and services enumerated under §103 that are in dispute with respect to the child until the dispute is resolved under paragraph (2).

(2) Resolution of Dispute by Purchaser — In the event of a dispute (as defined in paragraph (5)):

(A) Contractor and Subcontractor shall within [ ] days of notice by Contractor or Subcontractor that the party disputes responsibility for an item or service under paragraphs (e)(1) or (e)(2), submit the dispute to Purchaser in a form and manner specified by Purchaser

(B) Purchaser shall, within [ ] days of receipt of a dispute under subparagraph (A) make a determination as to which party is financially responsible for the furnishing of the items or services at issue;

(C) Purchaser’s determination under subparagraph (B) shall be final and not subject to appeal by either party.¹⁷

(3) Recovery of Administrative Costs by Purchaser — Purchaser shall, through offsets to the amounts otherwise payable to Contractor, recover the administrative costs incurred by Purchaser in making a determination under paragraph (2), regardless of the resolution of the dispute.

(4) Continuing Entitlement — Nothing in this section shall be construed to modify the entitlement of an enrolled child with behavioral health needs to covered items or services under [drafter insert reference to state Medicaid plan] or to notice and fair hearing in the event of a denial, termination, or reduction of an item or service.

(5) Dispute Defined — A dispute is a disagreement between Contractor and Subcontractor relating to the application of the requirements of the subcontract described in subsection (e) to an enrolled child with behavioral health needs.

§111. Remedies for Noncompliance

(a) In General — Contractor shall comply with the requirements of Part 12 of MEDICAIDSPECS.

(b) Enrolled Children as Intended Third Party Beneficiaries — Contractor agrees and affirms that an enrolled child with behavioral health needs (as defined in §113(f)) is an intended third-party beneficiary to [drafter insert name of purchasing document], and that such child, and the child’s family or caregiver on the child’s behalf, is entitled to all of the rights and remedies available to third party beneficiaries under state or other law.¹⁸

§112. Other Applicable Federal and State Requirements —

Contractor shall comply with the requirements of Part 13 of MEDICAIDSPECS.

§113. Definitions

(a) Adolescent – a child age [ ]¹⁹ through 20.

Commentary: The following illustrative language defines the term "behavioral health provider" more narrowly than normal usage would suggest. Because these purchasing specifications focus on children, and because the behavioral health needs of children often differ substantially from those of adults, this definition incorporates the policy that the practitioners used by the contracting BHO to furnish covered services be "child-trained". That is, each practitioner, regardless of professional discipline, would not only have to meet relevant licensing and certification requirements but would also have to demonstrate a specified amount of experience or training in the provision of the professional services to children with behavioral health needs. For additional information, see Pires, Resources for Staffing Systems of Care for Children with Emotional Disorders and their Families (1995), Georgetown University Child Development Center, www.dml.georgetown.edu/depts/pediatrics/gucdc.

(b) Behavioral health provider – a psychiatrist, clinical psychologist, clinical social worker, counselor, occupational therapist, certified addiction counselor, or [drafter insert other categories of health professionals authorized under state law to assume responsibility for treatment of a child with behavioral health needs] who has:

(1) [ ] of training in their discipline involving the provision of services to children with behavioral health needs (as defined in subsection (d)); or

(2) [ ] of experience within the scope of their practice under state law in the provision of services to children with behavioral health needs (as defined in subsection (d)).

Commentary: The following illustrative language relies on generic terms such as "nurse," "social worker," "family counselor," etc. These terms may imply different licensure categories in different states. Drafters should conform this language to the terminology appropriate to their state law and regulations.

(1) demonstrated experience in the management of services to children with behavioral health needs (as defined in subsection (d)); and

(2) training in case management under [drafter insert reference to state Medicaid or Mental Health and Substance Abuse Agency training programs].

Commentary: Under the "prime/subprime" approach reflected in this chapter of these purchasing specifications, identification of a child will be through the purchaser or through a determination by Contractor's managed care plan. The definition of "child with behavioral health needs" will therefore vary. The Medicaid statute does not contain such a definition. However, for purposes of the Community Mental Health Services Block Grant, SAMHSA has defined the term "children with a serious emotional disturbance" as "persons from birth up to age 18 who currently or at any time during the past year have had a diagnosable mental, behavioral, or emotional disorder of sufficient duration to meet diagnostic criteria specified within [DSM-IV] that resulted in functional impairment which substantially interferes with or limits the child's role or functioning in family, school, or community activities." 58 Fed. Reg. 29422 (May 20, 1993). The following illustrative language offers a broader definition.

(d) Child with behavioral health needs – a child under 21 who:

(1) has an emotional, behavioral, or mental disturbance;

(2) manifests substance use, abuse, or dependence; or

(3) is at risk (as defined by Purchaser) of being described under paragraph (1) or (2).

(e) Contractor – the managed care organization doing business as [drafter insert name] that has entered into an agreement with Purchaser under [drafter insert name of purchasing document].

(f) Enrolled child with behavioral health needs – a child with behavioral health needs (as defined in subsection (d)) who is eligible for [drafter insert name of state Medicaid program] and who is enrolled with Contractor under [drafter insert name of purchasing document].

(g) Family or caregiver²⁰ – a biological or adoptive parent of a child, a grandparent or stepparent with whom the child lives; an individual or entity that is a foster parent or legal guardian; or other individual (including a relative) or agency with legal authority or responsibility to care for the child.

(h) Individualized educational program (IEP)²¹ – a plan of services developed by an educational agency pursuant to the Individuals With Disabilities Education Act (IDEA), 20 U.S.C. §1401(11), 34 C.F.R. §§300.15, 300.347, which sets forth the special education and related services required by a child.

(i) Individualized family services plan (IFSP)²² – a plan of services developed by an early intervention agency pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§1401(12), 1435(d), 34 C.F.R. §§303.14, 303.340, 303.344, which sets forth the early intervention services required by a child and the child’s family or caregiver.

(j) Natural environment – as defined in the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§1435 – 1436, 34 C.F.R. §§303.12(b)(2), 303.18, a setting, including the home, that is natural or normal for the child’s age peers who have no disabilities.

Commentary: As used in these purchasing specifications, the term "provider" is broader than, and has a purpose different from, that of "behavioral health provider." The latter is used in the context of the provision of mental health or substance abuse services as they are covered under the specifications. The term "provider" is used in the context of provisions that are generic to these and other purchasing specification, such as provider network (§210).

(k) Provider - a health care practitioner, clinic, hospital, school, or other entity enrolled by the State to furnish medical, dental, mental health, substance abuse, or other health care services.

(l) Provider network – the set of providers that have entered into enforceable written agreements with Contractor or Subcontractor that comply with the requirements of [drafter insert reference to provisions of purchasing document applicable to Contractor] or §210(f)(2), respectively, to furnish, or arrange for the furnishing of, covered items and services under §103 to enrolled children with behavioral health needs.

(m) Purchaser – [drafter insert name of state purchasing agency].

(n) Qualified substance abuse provider –

(1) a physician, nurse, or nurse practitioner who is licensed by the state; or

(2) a practitioner described in one of the following subparagraphs who has at least [ ] experience or at least [ ] training in the treatment of alcoholism, substance abuse, chemical dependence or addiction among children and adolescents:

(A) family therapist;

(B) occupational therapist;

(C) psychologist;

(D) social worker; or

(E) [drafter insert state licensure or certification categories for substance abuse counselors].

(o) Subcontractor – the behavioral health organization doing business as [drafter insert name] that has entered into a written agreement under §110 with Contractor for the purpose of carrying out the duties enumerated under Part 2 of [drafter insert name of purchasing document].

(p) Other terms – see Part 14 of MEDICAIDSPECS, www.gwu.edu/~chsrp.

Endnotes

For comparable delegation provisions in the Medicare context, see 42 C.F.R. §§422.502(i).
HCFA’s "Key Approaches to the Use of Managed Care Systems for Persons with Special Health Care Needs" (October 1998), www.hcfa.gov/medicaid/smd-snpf.htm, provides that states should consider “[d]eveloping mechanisms to use a ‘health needs assessment’ process or other process (such as review of past Medicaid claims data) to identify existing or undiagnosed medical conditions.”
For an analysis of MCO contracts involving children under the jurisdiction of state child welfare agencies, see Wehr, et al., Managing Child Welfare: An Analysis of Contracts for Child Welfare Service Systems, (1999), GW CHSRP,
There are a number of tools Purchaser may wish to consider for Contractor's use in identifying children with behavioral health needs. One tool is the Living with Illness Screening Tool developed by the Child and adolescent Health Measurement Initiative (CAHMI) of the Foundation for Accountability (FACCT), www.facct.org. Another tool is QuICCC (Questionnaire for Identifying Children with Chronic Conditions), containing 39 questions for the family or caregiver (or the 19-question version of this instrument, called QuICCC-R). For a discussion of the issues relating to the administration of an instrument to identify such children, see R.E. Stein et al., “The Questionnaire for Identifying Children with Chronic Conditions: A Measure Based on a Noncategorical Approach,” Pediatrics (April 1997), pp. 513-521. The National Association of Children's Hospitals and Related Institutions (NACHRI), in conjunction with 3M, has developed a classification system using Clinical Risk Groups (CRGs); see Muldoon, et al., "Profiling Health Service Needs of Populations Using Diagnosis-based Classification Systems," Journal of Ambulatory Care Management (1997), 20, pp. 1-18.
For information on the Medicaid benefits package, see Schneider and Garfield, Medicaid Benefits (July 2000), Kaiser Commission on Medicaid and the Uninsured, .
This illustrative language would allow an enrolled child to disenroll in the event that no behavioral health provider in Contractor's network who is accessible to the child is willing to accept the child as a patient. An alternative option would be to allow an enrolled child to disenroll in the event that Contractor is unable to establish or maintain a multidisciplinary team for the child under §204.
An alternative option would be the following illustrative language: "Contractor may request that Purchaser terminate the enrollment of an enrolled child with behavioral health needs (as defined in §110(f)) who is eligible for [drafter insert reference to state Medicaid program] and who has not requested to disenroll only if Contractor documents to Purchaser, in such form and manner as Purchaser specifies, each of the following: (A) the child is engaging in disruptive or abusive behavior; (B) the child’s behavior does not result from a mental illness or addiction disorder; (C) the child’s behavior will seriously impair Contractor’s ability to furnish items and services to the child or to other enrollees; and (D) if the child, is under treatment, arrangements have been made to ensure completion of, or avoid interruption of, the treatment." Under this alternative option, Purchaser should notify Contractor and the enrolled child's family or caregiver in any case in which Purchaser determines that involuntary disenrollment is appropriate.
An alternative option would be to limit Contractor’s duty to continue the provision of services to those cases in which the enrolled child was hospitalized at the time of disenrollment.
Part 9 of MEDICAIDSPECS includes illustrative language on the following issues: §904 (access data); §905 (quality data); §906 (aggregate utilization data); §907 (encounter data); §908 (complaint and grievance data); §909 (expenditure and claims data); §910 (data relating to practitioners); §911 (confidentiality of data); §912 (public access to data); §913 (ownership of data); §914 (information system); and §915 (purchaser access to data).
The Massachusetts MH/SAP Contract specifies 3 days. CHSRP, Negotiating the New Health System, 3^rd Ed., Volume 2, Part 4, Table 5.3, p. 5-458.
Part 10 of MEDICAIDSPECS includes illustrative language on the following issues: §1001 (protection of enrolled child – provider communications); §1003 (protections for enrolled children against liability for payment); and §1008 (written policies on enrolled child rights).
HCFA’s "Key Approaches to the Use of Managed Care Systems for Persons with Special Health Needs," (October 1998), www.hcfa.gov/medicaid/smd-snpf.htm, provides that states should consider that “[c]ommunications with MCO enrollees must be consistent with the ADA prohibition on unnecessary
inquiries into the existence of a disability.”
For an example of the application of due process protections for children with behavioral health needs enrolled in BHOs, see Revised Consent Decree Governing TennCare Appeals, Grier v. Wadley, C.A. No. 79-3107 (M.D. Tenn., Oct. 26, 1999), available from Tennessee Justice Center (615-255-0331).
HCFA's new Patients' Rights Conidition of Participation "requires that a pyshician or other licensed independent practitioner 'see and evaluate' the need or restraint and seclusion within 1 hour after the initiation of this intervention." For additional information, see DHHS Office of Inspector General, Restraints and Seclusion: State Policies for Psychiatric Hospitals," (August 2000), OEI-99-00150, www.dhhs.gov/progorg/oei.
For an overview of consumer rights, see SAMHSA, Partners in Planning: Consumers' Role in Contracting for Public Sector Managed Mental Health and Addiction Services, Managed Care Technical Assistance Series, Vol. 10 (April 1998), pp. 53 - 62.
For Medicare purposes, the Federal government specifies 6 years, 42 C.F.R. §422.502(i)(2)(ii).
An alternative option would be to allow both parties to invoke appeals procedures under state law.
The legal doctrine of third party beneficiary holds that individuals who are not party to a contract may, under certain circumstances, enforce performance of duties in the contract on the part of the parties to the contract. While varying from state to state, this doctrine is reflected in both state court decisions and state laws, and applies to both private and public contracts. See Calamari and Perillo, Contracts 3^rd Ed. 1987, §§17-4,17-7. The illustrative language would clarify the applicability of the law of the Purchaser’s state. Note that a federal district court has ruled that parents of Medicaid-eligible children with behavioral health needs enrolled in Medicaid MCOs under a section 1915(b) waiver have a private right of action to seek enforcement of certain beneficiary protections, such as the requirement that covered services be made available with “reasonable promptness,” Kirk T. v. Houstoun, No. Civ. A. 99-3253 (E.D. Pa., September 28, 1999). Subsequently, the court issued an order granting summary judgement for the plaintiffs against the State Medicaid agency, which had contracted with several counties that had in turn subcontracted with behavioral health MCOs to provide services to plaintiff children. The court ruled, among other things, that the purchaser State Medicaid agency had failed to meet its statutory duty to provide services with "reasonable promptness," §1902(a)(8) of the Social Security Act, 42 U.S.C. §1396a(a)(8), because "there seems to be no dispute that many children within the [service area] are not receiving reasonably prompt [behavioral health services covered under the contract]." Kirk T. v. Houstoun, No. Civ. A. 99-3253 (E.D. Pa., June 27, 2000).
Bright Futures uses an age range from 11 through 20 and Guidelines for Adolescent Preventive Services (GAPS) uses a range from 12 through 20. Note that the EPSDT benefit extends to all Medicaid-eligible children under age 21, §1905(a)(4)(B) of the Social Security Act, 42 U.S.C. §1396d( a)(4)(B).
An alternative option would be to define “parent” and “foster parent” as the terms are defined for purposes of an IEP at 34 C.F.R. §300.20 or for purposes of an IFSP at 34 C.F.R. §303.l9.
For additional regulatory requirements relating to an IEP, see 34 C.F.R. §§300.340 - 300.361.
For additional regulatory requirements relating to an IFSP, see 34 C.F.R. §§303.340 - 303.345.

Medicaid Contract Purchasing Specifications

Children with Behavioral Health Needs

Chapter II: “Prime/Subprime” Approach

Part 1. Duties of Contractor

Table of Contents

§101. In General

§102. Identification of Enrolled Children with Behavioral Health Needs

§103. Scope of Benefit

§104. Protocol for Coordination of Behavioral and Non-Behavioral Health Benefits

§105. Enrollment and Disenrollment

§106. Information to Enrolled Children

§107. Quality Measurement and Improvement

§108. Data Collection and Reporting

§109. Enrolled Child Safeguards

§110. Subcontract

§111. Remedies for Noncompliance

§112. Other Applicable Federal and State Requirements —

§113. Definitions

Endnotes