Hawaii's health and education stimulus funds: more questions than answers

Recent reports from the Governor's Office, University of Hawaii, and Departments of Human Services, Education and Health paint an interesting picture of state spending of federal stimulus funds, while leaving many questions unanswered.

Questions include:

• whose salaries at DOE were paid with $24 million in stimulus funds in the past two months, since it obviously wasn't the furloughed teachers?
• speaking of the Friday furloughs, why aren't federal stimulus education funds being used to get us back to a normal five day school week?
• how does UH justify $42 million in grants to study things like rocks in Iceland and how bees learn, creating a total of just over ten jobs?
• how many of the state's 20,000 special ed kids were benefited by the $19.9 million paid out this summer to companies like Hawaii Behavioral Health, Nursefinders and the Behavioral Counseling & Research Center?
• with Medicaid stimulus funds almost equaling the state's expenditure in 2008 for home Medicaid services, why are these services being cut so drastically?
• how much of that Medicaid money is being paid out to for-profit companies UnitedHealth and Wellcare as part of their eight percent profit margin?
• and can somebody please teach the DOE the difference between "passed" and "past"?

State Fiscal Stabilization Funds (SFSF)

These funds come from the federal Department of Education and are divided into two parts:  Part A, which must be used to "restore support for education"; and Part B, to be used for "education, public safety, and other government services".

As of December 29, Hawaii had received $105.3 million of its allocation of $192.7 million for Part A; and all of its $34.9 million allocation for Part B.

According to DOE's report to the state legislature, "the SFSF funds were used to offset budget reductions past [sic] in Act 162 of the 2009 Hawaii Legislative session.  Funds are being drawn down to meet payroll expenses."

On December 16 and January 12, the DOE withdrew $24 million from the Part A funds to pay for salaries. An additional $44 million in Part A funds are promised to the University of Hawaii (UH), and $4 million to the Charter Schools Administration Office.

In a report to the state legislature, UH estimated its $44 million in Part A funds will save 206 jobs (measured as Full Time Equivilent positions, so that the figure includes adding together part time with full time jobs).  The Charter School office estimated it will retain 286.5 FTE jobs.  These numbers are slightly different in the Governor's office report to the state legislature, with UH estimating 208.74 FTE, the Charter School office reporting 343.51 retained positions, and DOE reporting retention of 1561.98 positions.

Of the Part B funds, $10 million is promised to UH, $6 million to the Charter School office.  The remaining $18 milion has not been allocated publicly yet.

The question is why this money isn't being used to reduce Hawaii's "furlough Fridays" that have garnered the state negative national publicity and even a reprimand from Secretary of Education Arne Duncan.   $120 million of the state's SFSF funds have not been allocated (at least publicly), which is more than enough to bring teachers and students back to a five day school week.


Stimulus Funds for Special Education

DOE is due to receive a total of $39.9 million for special education.  The state reports receiving $19.9 million of that amount, all of which it claims was "used to pay for autism spectrum disorder and school based behavioral health services."

Going through the list of vendors receiving that $19.9 million, it is questionable to what extent the autism student population was benefited.  All of the vendors provide behavioral and psychological services, "including [for] autism spectrum disorder".  Hawaii Behavioral Health, which alone received almost $6.1 million, states on its website it provides ten different types of services, with those for children on the autism spectrum listed ninth of the ten.  Nursefinders, receiving $2.98 million, provides paraprofessionals, personal assistants and nurses to the schools; again, services to kids on the autism spectrum are hard to separate from services to other special ed kids like my own daughter.

Hawaii's February 2009 report to the federal DOE classified only six percent of special ed children aged 6-21 as being on the autism spectrum.  Forty-eight percent were categorized as having "specific learning disabilities," fifteen percent as having "other health impairment", and thirteen percent as either developmentally delayed or mentally retarded.  While I'm well aware the parent community feels that autism spectrum disorders are greatly under-diagnosed by DOE here in Hawaii, the question still remains to what extent children who definitely fall outside ASD are being benefited.


Funds received by Hawaii's Department of Human Services

DHS reported receiving $183.7 million as of September 30, of which $171.3 can be spent only on Medicaid.  An additional $22.5 million has been received by individual health centers and community groups across the state, and UH has received grants totaling $10.9 million from (federal) DHHS.

According to the December 15 report to the state legislature, the Hawaii Med-Quest division was working with "affected state departments (mainly the Departments of Health and Education) related to the increased ARRA FMAP to coordinate expenditures, claims and other requirements."  This statement leaves open the possibility that Medicaid stimulus funds could have been shared with the Department of Health, which administrates the Developmental Disability Medicaid waiver program, and the Department of Education, which spends Medicaid funds under EPSDT.  Since stimulus Medicaid funds do not require detailed reporting, however, I have been unable to identify how much money was spent on which Medicaid program.  The report goes on to mention that "Increased ARRA FMAP funds are used for the Medicaid Program as well as other state programs."

As of September 30, all but about $350,000 of the received amount had been spent.

According to the January 15 report from DHHS, Hawaii has now received $184 million in Medicaid stimulus funds.  Any funds spent on Hawaii's QExA program for the aged, blind and disabled population will be subject to the standard 8% off the top profit margin for UnitedHealth and WellCare.

The University of Hawaii

UH is receiving a total of $95,958,600, with more grant applications outstanding.  Of that amount, $54 million is coming from the "educational state stabilization funds" (SFSF) received by the governor's office (over a two year period), and the remaining $41.9 million is coming from sixty-two separate grants received from the Department of Human Services, National Science Foundaiton, Department of Energy and Department of Justice.

UH estimates that the $42 million in federal grant funds is saving and/or creating 10.6 FTEs.

The Honolulu Advertiser has already reported on the questionable nature of some of these grants: $6.2 million to take monthly cruises to the North Pacific; $210,000 to study bee learning; $421,886 to build an evolutionary model for a single species of Hawaii moth; and $295,743 to collect rocks in Iceland.

Are civil rights defined differently in the "separate kingdom" of Hawaii?

The Hawaii chapter of the American Civil Liberties Union is honoring a local law firm that is defending insurance giant UnitedHealth against allegations of potentially violating civil rights.

A division of UnitedHealth, Evercare, is one of two Medicaid managed care companies in Hawaii providing home and community based services (HCBS) to the state's aged, blind and disabled community.  Complaints alleging both companies are cutting medically necessary services have been coming in since the two companies took over the HCBS program in February 2009.

At least five complaints alleging violations of the civil rights of adults and children with disabilities have been lodged with the Office for Civil Rights of the Department of Health & Human Services.

Hawaii law firm Alston Hunt Floyd & Ing is defending Evercare against these allegations.

Yet somehow Alston Hunt Floyd & Ing is also being honored by the Hawaii chapter of the ACLU.

A year ago, a Hawaii federal judge ruled that complaints against Hawaii Medicaid for violating civil rights weren't appropriate since the rights had yet to be violated.  She said she didn't have subject matter jurisdiction.  The defendants had to withdraw the case because the judge's ruling didn't even allow them the opportunity to appeal.

Meanwhile, however, judges in California, Tennessee, North Carolina and Georgia have all heard similar cases and ruled in favor of the defendants.  None of them noted any lack of "subject matter jurisdiction", and the potential of civil rights violations were sufficient cause to issue rulings.

A history book of Kauai was published several years ago titled "A Separate Kingdom".  Apparently that attitude has permeated our state legal system, as the civil rights of adults and children with disabilities continue to be violated on a daily basis. 

Hawaii Medicaid, UnitedHealth and DC law firm Covington & Burling

Yesterday I reported that DC law firm Covington & Burling had received another extension of their contract with the state, with part of the purpose being to contribute to the 'reprocurement' of Hawaii's Medicaid contract for services for the state's aged, blind and disabled population.

C&B had already been paid for "legal and consulting services relating to the drafting and issuance of the RFP", to "facilitate the evaluation of the proposals in response to the RFP in Hawaii" , to "assist Med-QUEST in negotiating with health plans",  and to "assist Med-QUEST with developing answers to questions submitted by bidders".

The two companies awarded this contract are UnitedHealth and Wellcare.

Covington & Burling on their website notes they represented UnitedHealth "in federal criminal, SEC enforcement, and Congressional committee investigations."

Charles Miller, of Covington & Burling, has served as Special Deputy Attorney General to the state of Hawaii for issues related to the Department of Human Services and Med-QUEST.  He served in this position from November 2004 until at least June of 2008 (that's only per the records I've been able to find online).


As the mother of a child with disabilities, I find it worrisome that the same company that has represented UnitedHealth in federal criminal and SEC complaints is helping Hawaii redraft the contract for services to our disabled community.  David Heywood of UnitedHealth already told me that his company is in discussions with the state on how to reconceptualize EPSDT's definition of case management services, in response to my request for these services on my daughter's behalf.

I'm not a lawyer, but it seems to me that there might be a conflict of interest here someplace.
 

Hawaii pays DC law firm another $1.25 million to redo Medicaid contracts

Apparently DC law firm Covington & Burling was paid another $1.25 million by the state of Hawaii to redo the Medicaid request for proposal that the company had already received millions for writing.

By my count, this now brings C&B's total from Hawaii to about $4.75 million.

The application for exemption from competitive bidding notes:

1.  the company is continuing to advise the state on law suits and complaints filed with the Hawaii Insurance Commissioner over performance of the two for-profit companies that were awarded the state's $2.5 billion in Medicaid contracts for providing care to Hawaii's aged, blind and disabled population;

2.  the company is providing "legal services relating to drafting and issuing" of the new RFP Hawaii is preparing to re-issue.

In December 2009 I asked a Hawaii Medicaid official about rumors I had heard about UnitedHealth and Wellcare, the two companies awarded the existing contracts, asking the state for an additional $60 million.  Her response was to say that the state is reworking the contracts with Evercare (UnitedHealth) and Ohana (Wellcare).

I am guessing that another contract extension might be laying around that I haven't found yet, since this latest one extended the contract until December 2009.  As I've been reporting, federal authorities from CMS have been in conversation with Hawaii officials since August, and these are continuing to this day.  David Heywood from UnitedHealth told me in December as well that his company was in talks with the state about how to re-define EPSDT's requirement for case management, and again, I would think legal counsel would likely be involved in that type of discussion.

Why is the RFP being revised and re-issued?  Is this "reprocurement" open to everyone or just UnitedHealth and Ohana?  Is it being done at the request of the two companies?  Is it for more money, fewer services, protection from complaints, all or none of the above?

Unfortunately, I have a nagging feeling that this is likely not good news for the state's ABD population.

What EPSDT as a civil right means for your child and you

Ten days ago I received an email from the federal Office for Civil Rights of DHHS that they would accept civil rights complaints based on EPSDT.  The reason this can have such an enormous impact on the lives of our children is that there's a big difference between legal rights and civil rights.

Legal rights derive from law and can vary from one state to another, even town to town.  In some states you have the legal right to make a u-turn; other states have laws saying you don't have that right.

Civil rights derive from the Constitution and can NOT vary from state to state.  States can't have laws that segregate children into schools on the basis of race, for instance.  That's what yesterday's Martin Luther King, Jr. Day was all about.

Every parent and caregiver for an individual with a disability knows that medical and educational services offered to their loved ones can vary dramatically from one community to another, let alone between states.

What that email from OCR means is that anytime Medicaid turns down a service or treatment that your child's doctor says is "medically necessary", that state might just be violating your child's civil rights.  If Medicaid has reduced your child's home support services (skilled nursing, personal attendants, paraprofessionals, etc.) and those services are deemed "medically necessary" by one of your child's treating practitioners, then the state is almost for sure violating your child's civil rights.

If your child has been signed up by Medicaid but is on a waiting list for services, then there's a good chance his or her civil rights are being violated.

What all this means to us as parents and caregivers is that we suddenly have a more powerful voice to speak with.  Rather than being worn down by due process hearings and the Medicaid appeals process, you can take your complaint straight to the federal government.  Both the Department of Health & Human Services Office of Civil Rights and the Department of Justice's Civil Rights Division are set up to take complaints from individuals on violations of the Americans with Disabilities Act.

And after that OCR email, violations of the ADA can include violations of EPSDT.

I've been advocating for services for my little girl based on EPSDT since about 2002.  It's been a constant struggle with local bureaucrats, services gatekeepers and state budgets.  Now I've been talking with the DHHS Office for Civil Rights since July, including sending them information on other local families in a similar predicament to my own.  The more individual complaints they receive, the more attention they pay.  Enough complaints and your regional office moves them up to their Washington, D.C. office.

In our case, I'm still waiting to find out what the next step will be.  But I have hope, and for more than just the benefit of my own daughter.

We already know, from experience, that advocating on our kids' behalf from the bottom up just doesn't work. As the parents and caregivers of children with disabilities we can join these new stronger voices together and have a potential impact from the top down.

I started the Children's Disability Rights Education Association to provide a forum for bringing our voices together.  What we are doing here in Hawaii can be duplicated across the country.

If you'd like information on advocating for your child based on EPSDT, please email me.

Hawaii's DOE agreement with DHS maximizes Medicaid reimbursement for special ed students

Reading the Department of Education update on its medicaid reimbursement program soon after speaking with the administrator of the state's school based claiming (SBC) program and after reading Laura Brown's articles on potential fraud within the DOE procurement process, has been an interesting process.

The state auditor reports, released in February 2009, found a "culture of disregard" for procurement laws and regulations.

On December 3, DOE submitted it's report to the Board of Education on the progress of its federal reimbursement maximization program.  This is about the work that has been contracted out to the University of Massachusetts Medical School.  They're going back to January 15 of 2006, and submitting claims to Medicaid for everything they can identify as reimbursable.

The report states they already had $1.15 million in what is supposed to be a revolving account.  The report goes on to say "once operational, administrative claiming will significantly increase SBC [school based claiming] reimbursement" and they expect to generate $7 million in reimbursements by 2013.

I asked DOE in October for an accounting of all reimbursement sought and received on my daughter's behalf.  I have been told by the person who administrates the school based claiming program that the school based claiming program has not submitted any claims to Medicaid on my daughter's behalf.

I tried asking about programs other than the SBC, but the verbal response remained worded the same each time.

Mind you as of November it seems that the SBC was not completely operational, so it's possible there could be a "not yet" attached to that claim. The DOE said that as of November 2009 "interaction with MQD was initiated to review strategies for the implementation of an administrative claiming program."

The individual I spoke with said that DOE cannot bill Medicaid for my daughter because she's in a Medicaid waiver program.  I found that interesting given that CMS has stated clearly that Medicaid waiver services are intended to supplement EPSDT, not the other way around.

Another interesting issue brought up by the DOE report is the recruitment process DOE has conducted to enroll more children in EPSDT.  Parents may not realize this has happened, and may not be aware of all the benefits their children are entitled to under EPSDT.  The DOE report states that "the parental authorization process as conducted three times throughout the year producing an eligible population of approximately 2500 students."

I'm not sure what if any relationship there is between this "parental authorization process" and the reverse approval letters DOE sent out twice that I'm aware of.  Those letters stated that if the letter was NOT responded to, the parent was giving their permission for Hawaii to bill Medicaid on their child's behalf.  The first letter I saw went out in December 2008.

EPSDT mandates that states conduct extensive outreach and education to parents and caregivers on EPSDT benefits and rights.  This doesn't always happen the way it's supposed to, as witnessed by the health plan information booklets prepared by Evercare and Ohana which almost dismiss EPSDT as just shots and normal developmental screens.  Somehow they leave out everything else, such as home nursing, durable medical equipment, speech, occupational and physical therapy, individual case management and many more benefits.

So if DOE is claiming they've recruited 2500 children for Medicaid reimbursement does that mean new enrollees or existing enrollees?  Are these children being enrolled in either Evercare or Ohana in order to be covered under Medicaid and therefore eligible for DOE reimbursement? That could increase the monthly capitated income the two for-profit Medicaid agencies receive from Hawaii, with little if any way to track actual spending on individual students.

Once again, I'm left with more questions than answers.

CDREA gets Feds to acknowledge EPSDT includes civil rights, not just legal

The Children's Disability Rights Education Association received an email today from the DHHS Office for Civil Rights confirming there are civil rights implications of EPSDT.

States, Medicaid agencies and schools have long treated services included within EPSDT as their prerogative to limit as they see fit.  Essentially they have been relying on the broad leeway Federal law gives the states in implementing Medicaid programs.

Today's confirmation from OCR that there are civil rights associated with EPSDT means states that deny, reduce or limit medically necessary services to a child with disabilities on Medicaid are likely violating the civil rights of that child.

That's a whole lot bigger thing.

How Hannah Got Her Dynavox

On Monday I posted on here as the frantic mom of a disabled child.  After five months going back and forth with UnitedHealth, DOH and DHS, my private insurance carrier had approved the "medical necessity" for Hannah's Dynavox purchase and all UnitedHealth had to do was sign off for the 25% deductible.

Late last year, Hawaii's Department of Human Services had already put   in writing that devices like the Dynavox were covered by EPSDT, and that UnitedHealth was responsible for paying out for EPSDT services and items.

After I posted, I received two emails from UnitedHealth calling into question the approval from my primary carrier.

Tuesday morning Dynavox emailed me that my private carrier had had at least two phone calls from UnitedHealth the previous afternoon, related to the Dynavox.

I then filed a complaint for retaliation under the ADA with the Department of Justice Civil Rights Division, and copied the federal regulators I've been communicating with in CMS (Centers for Medicare and Medicaid Services) and the DHHS Office for Civil Rights.

Late Tuesday afternoon UnitedHealth agreed to pay the deductible.

It still took them almost 24 hours to fax Dynavox the piece of paper needed in order to order my daughter's communicator. Dynavox is in Pittsburgh, so another day had gone by with the only victim being my daughter.

This morning I had the confirmation from Dynavox that all paperwork was received and her machine is being sent out to her today.

If you are the parent of a special needs child who is covered by medicaid, you can use your child's legal rights under federal Medicaid law to obtain medically necessary technology. Here in Hawaii, this has a huge significance because it means we don't have to go through the Department of Education. A pamphlet for parents published by the CMS in 2004 describes the simple process for a parent to obtain medical services through their Medicaid insurance carrier.

Could Hawaii and UnitedHealth be so arrogant as to retaliate against my daughter?

I don't write about Hannah much, although she's obviously the reason behind everything I do and write.


Hannah turned ten in October.  She tries to talk but the brain damage affects her control of her tongue and throat so we can't understand her.  That's also why she only eats from a feeding tube that was surgically implanted in her stomach.

She's legally blind, and in fact her vision can change from one second to the next.  It has to do with the brain damage, her eyes are fine. Apparently, though, she's able to use her vision to see a computer monitor screen.


She is considered medically fragile, and has near-constant seizure activity in her brain.  She has nurses with her 24/7 to intervene if a seizure starts.  The only other option for her would be institutionalization, and I will not allow that.

Her brain has grown, sprouting up like mushrooms around the scar tissue.

Last June, a certified speech pathologist in Los Angeles showed my daughter how to use a touchscreen computer communications device.  The therapist told me (and wrote in her report) that with the appropriate technology Hannah could learn how to write sentences and do simple math, not to mention communicate her needs and wants.  She recommended the technology that she had observed Hannah using.

Assistive technology and augmentative communications devices are covered under EPSDT.  CMS has confirmed that.

UnitedHealth has been spinning a delay that means my daughter still doesn't have this device five months later.

The worst part is that my private insurance approved a four week trial, at the same time the Hawaii Department of Human Services wrote in "informational notes" that voice replacement and communications devices were covered by EPSDT and therefore the responsibility of UnitedHealth.

So Hannah had one here in the house for three weeks.  Her nurses kept logs of how many times a day she used it, how many choices she was given, and how often she pushed the right button or the wrong button.  She used it more and more and was able to increase her choice field from two options to four and still improve her percentage of correct selections.

For a week after I had to return the machine to the manufacturer, Hannah kept going to the table where we had kept it, feeling for it.  She had learned she could use it to talk to us, we had taken it away from her, and we had no way to let her know we were hoping to have it back soon.

My private insurance reviewed the letter from Hannah's doctor, agreed it was medically necessary and approved 80% of the purchase price on December 24.  UnitedHealth still hasn't told the equipment company, as of their close of business today, that they will pay the remaining 20%.

The most recent information I have is that they expect to "make a decision" sometime this week.

Decision?  What decision?  We're talking federal law here, there are no decisions to be made. 

UnitedHealth knew my private insurance company had approved the trial.  They knew the device was here, and they knew they would be in line to pay the deductible.

On December 28, I emailed David Heywood and Cheryl Ellis to let them know the approval had come in.  I finally heard back from Hannah's "case coordinator" at Evercare after noon on December 31 that she was checking on the status.

Dynavox was told a form would be faxed to them on the 28th.  As of the 31st, they still didn't have it.  Cheryl Ellis told Dynavox they would have the approval before they got into work on the 31st.  Instead there was a phone message from someone in their "compliance" department. 

The only person being hurt by all these delaying tactics is Hannah.

I can't think of any reason why anybody or any company would want to hurt my little girl by denying her the means of communicating with us.

There's no rational reason for hurting Hannah, which leaves the unpleasant idea that she is being retaliated against for what her mom is writing.

That actually would be violating her civil rights under the Americans with Disabilities Act.

I am tired of being quiet about this.  It's a battle I've been forced to fight on my daughter's behalf since August.  I still rankle at the memory of a conversation I had about this with someone at UnitedHealth. I had stated that CMS had said they (UnitedHealth) were responsible for the communicator because of EPSDT.  The response was something like oh-well-I-guess-we'll-just-leave-it-up-to-DHS-to-decide. 

DHS decided, but that still apparently isn't enough to get UnitedHealth to give the go-ahead to the equipment company.

How much longer does Hannah need to wait?  Does somebody really think if they try to hurt my daughter, I'm going to stop writing on my blog?

Is Hawaii paying DC lawyers for advice on violating Federal Medicaid law?

Over the holidays, I found documentation for almost $3.5 million in contracts between Hawaii's Department of Human Services and Office of the Attorney General and Washington D.C. law firm Covington & Burling.

At about the same time an official in the state's Medicaid office admitted Hawaii is re-negotiating its $2.5 billion in Medicaid contracts with UnitedHealth and Wellcare.  Covington & Burling were paid for writing the original RFP and contracts, and had other contracts with both DHS and the state Attorney General's office for advice on Medicaid policy and federal compliance.

The federal regulators for Medicaid (CMS, or the Centers for Medicare and Medicaid Services) have been in discussions with Hawaii since August, attempting to bring the state's Medicaid services for the disabled, blind and elderly populations into compliance with federal law.  Not only is the state refusing to comply, they're digging in their heels by issuing written policy documents supposedly to support their position.

A UnitedHealth executive has stated they have increased their enrollment in the state's program for home and community services for the "aged, blind and disabled" (ABD) population by 60%.  All that says is the for-profit corporation has increased its revenue by 60% (since they're paid on a per person basis) but not that they're actually spending the money.  In fact, they're cutting existing services and crying poor to the state, that they're losing money.

Third quarter financial news for both UnitedHealth and Wellcare indicates both companies' revenue and/or profits are up.  There are no signs of a dire financial loss due to Hawaii that would necessitate re-writing the contracts.

The same person from UnitedHealth told me his company is in discussions with the state on how to get around the federal mandate for case management under EPSDT services.  Is that the sort of policy and compliance advice the state might be paying for?