SC decision: New options for disabled students

PD providers can seek school-nursing assignments

According to William A. Dombi, vice president for law at the National Association for Home Care in Washington, DC, a recent Supreme Court decision may open new opportunities for private duty care in schools across the country. "In the case of the Cedar Rapids Community School District v. Garret F., No. 96-1793, U.S. Supreme Court (March 3, 1999), the court found that under the Individuals with Disabilities Education Act (IDEA) the school districts have a responsibility to provide nursing services to students who require them as a way of facilitating an integration of those students into the mainstream of education," he says. Since those students may be so technology-dependent as to require a full-time care attendant, school nurses will not be able to meet their needs.

IDEA is a federal law that applies to any school district that gets federal funding and part of a family of laws that deal with the disabled. One of the issues that has been in controversy was the degree to which a school system had to provide for nursing care. Some school districts interpreted the law as meaning that they didn’t have to provide a physician, but did have to provide nursing services when needed. Other school districts decided that providing care for a single individual who required full-time care was beyond the scope of their responsibilities.

The court effectively held that it is the schools’ obligation to do so. The Garret F. case has triggered some additional analysis of how the school districts’ obligations interface with the Medicaid program, which has often been the financing source for those services because IDEA does not bring any significant funding to schools to handle the cost of private duty nursing.

Districts must comply with court decision

According to Dombi, Medicaid, under the Early Periodic Screening, Diagnosis, and Testing (EPSDT) program, that all Medicaid programs are obligated to have in place, would provide for private duty nursing.

"EPSDT is written to say that for children under 18 — if the state can put private duty in as an item in its Medicaid program — it must be made available to EPSDT clients. Anyone under age 18 enrolled in Medicaid would qualify," Dombi explains. "Private duty nursing, which was an optional Medicaid benefit, now becomes a mandatory benefit under the EPSDT program for that class of Medicaid recipients."

Each school district will now have to analyze whether they are complying with the Supreme Court’s decision. If they are not compliant, they could voluntarily bring themselves into compliance, or someone who is adversely affected by the non-compliance can challenge them. "The court’s action doesn’t mean that everybody will suddenly comply, but it does mean that they can be forced to do so. We expect that most school districts will analyze their compliance status to determine whether or not they have exposed themselves to some challenges," Dombi says.

Garret F. was tube-fed and ventilator-dependent. His parents asked the school system to pay for the private duty nursing the child needed when he was about to be mainstreamed into school. The school system initially refused, but Garret’s parents were successful in an administrative appeal. The school system appealed the administrative appeal, lost again, and continued through the courts until the case reached the Supreme Court.

Dombi says that one of the things that has apparently been decided by the Health Care Financing Administration (HCFA) is that it is acceptable for state Medicaid programs to be the foundation for payment of in-school private duty care. "One of the questions HCFA is looking at is whether the billing for those services will come from the school system or from the health care provider delivering the care. The school system has its options on how it approaches this issue, but the state Medicaid program has its limitations on who are eligible providers of services, too," Dombi says. "In some states, the only way you get private duty nursing financed under Medicaid is through delivery of services by a home health agency. In other states, they will go so far as to pay the individual who is delivering the care."

Whether the states will have to adjust who is an eligible provider of services to facilitate an arrangement between a school system and the Medicaid program will have to be analyzed specific to that location.

Do your homework, then take the initiative

"What we’ve put out from the National Home Care Association is an opportunity for entities that provide private duty nursing to approach this as another line of business, to turn to the school systems and say, We’re available. We’d like to be your provider of choice on these services under a contract with the school system,’" Dombi adds.

Dombi says that private duty contractors can do this in two ways. "The first is to ask the child’s parents to advocate for your services. The second is to approach the school board armed with both the understanding of what the school system’s obligations are and with whatever would be best to sell your services to the school system."

Dombi points out that the Medicaid recipient has a right to choose any qualified provider of service. "That raises the question of who the provider is. Is the school system, the home health agency or an individual? If the school system and the state connect and decide that the school system will be the provider, and they will contract to fulfill that responsibility, then the choice is going to be very limited. If the patient chooses to go to that school system, then they therefore have automatically chosen who the provider of care is, as distinct from a school system that allows the individual to choose his or her own provider of nursing. There’s nothing in the Supreme Court decision that addresses this whole Medicaid issue, and I think there’s plenty in the law that allows the flexibility for the school systems to take different routes. They can either being the direct provider, or the party that arranges for the service, or being the party who facilitates the opportunity to bring that service into the school setting." If your school district chooses one of the last two, you have a possible new venue for your services.

If you decide to pursue this venue, here’s a possible plan of action for you:

Do some research to find out how many children in the school districts your agency serves could use your services.

If you determine that there are sufficient number to warrant putting your time and effort into capturing the market, don’t wait until you see a notice in the newspaper that the school district has decided to hire private duty care.

Be aware that school districts are heavily influenced by school boards, which are usually comprised of private citizens with a fairly conservative political bent. Research and network. Find out who your school board members are, and see if you can find out their positions on private duty care in schools. Check the archives of your local paper for coverage of past board actions and profiles of board members.

Call the school board office and ask for a copy of the board’s meeting calendar.

Think about why your agency would be the best choice the board could make. Prepare a presentation package on your services for each school board member. Make sure it’s to the point, easy to read, and sells your positive points. Imagine you are in the board members’ position. Ask yourself what your agency has to offer. The answer to this can be anything from quality to price. Include a price range and examples of pricing for specific services. As the children you are seeking to care for will almost certainly be highly technology-dependent, you should be prepared to provide references from former and present clients with similar or at least analogous problems.

Lobby those who hand out the contracts. Make an appointment to meet with each of the school board members, the district head individually. Once you have met with them, lobby members of the governing body (usually a board of county commissioners) that budgets school funding. As these people will be elected representatives, it helps to take one of their constituents with you to these meetings — preferably a constituent who voted for that commissioner.

Expect to do a certain amount of educating during these meetings. (This is where being armed with an understanding of the law and Medicaid regulations comes in.) If you know the person with whom you are meeting has resisted private duty care in the past, expect to do some pleasant persuading as well.

Once you’ve accomplished all this, ask to be placed on the agenda to make a brief presentation at the next school board meeting.

Find out which reporters cover the school board and county commission "beats." Take an information packet for each of them, too, and make yourself available to answer their questions.

Keep your cool no matter how heated the discussion becomes.