First NASW Letter to Secretary Shalala Concerning Delivery of Social Work Services in Skilled Nursing Facilities

May 28, 1998

NATIONAL ASSOCIATION OF SOCIAL WORKERS

The final rule on "Medicare Benefits and Application of the Outpatient Mental Health Treatment Limitation to Clinical Psychologist and Clinical Social Worker Services," issued in the Federal Register on April 23, 1998, will, effective June 22, 1998, eliminate reimbursement for clinical social worker services provided to residents of nursing homes under Medicare Part B. However, clinical psychologists will be permitted to continue to bill Medicare Part B directly for similar psychological services to nursing home residents. This is discriminatory action against clinical social workers who are one of the major providers of mental health treatment and diagnosis to SNF residents.

If this new Health Care Financing Administration (HCFA) policy concerning reimbursement for clinical social work services in SNFs goes into effect, thousands of clinical social workers will lose their jobs, beneficiaries will be denied access to needed critical mental health services; and the costs to Medicare for mental health services in SNFs will dramatically increase.

The release of the April 23rd rule came as a surprise to NASW. These rules have been pending for almost five years. Proposed rules were issued in December, 1993, and followed the passage of the Omnibus Budget Reconciliation Act of 1989 (OBRA ’89). The OBRA ’89 language amended the Social Security Act (SSA) to cover clinical social worker services under Medicare Part B for the provision of mental health diagnosis and treatment. Under the Act, a clinical social worker is defined as an individual with a masters’ or doctoral degree in social work who has two years of supervised clinical experience and is licensed or certified by the state to provide such services. Additional requirements are included for those states that do not have licensure. Clinical social workers were covered under Medicare Part B effective July 1, 1990. The definition of clinical social work services in the SSA (Section 1861(hh)(2)) included qualifying language related to inpatients in hospitals and SNFs intended to prevent inappropriate and duplicative billing. In the absence of regulations, this language has at times been confusing to HCFA and Medicare carriers. Nonetheless, NASW and clinical social workers have worked hard over the years to educate Medicare carriers regarding the appropriate reimbursement for clinical social work services provided to SNF residents, and most carriers have reimbursed for those services.

In the proposed 1993 rule HCFA proposed to cover under Medicare Part B clinical social work services to SNF residents that are not required for participation, but asked for comments on the difference between clinical social work services and the social services requirements for SNFs. In responding to the proposed rule, NASW underscored the statutory requirement of SNFs to provide medically related social services to attain the highest practical physical, mental, and psychosocial well-being of each resident and that a SNF with over 120 beds must employ a qualified social worker on a full-time basis. A "qualified social worker" is defined as an individual with a bachelor’s degree in social work or a related field and one year of supervised social work experience in a health setting. This is not someone who is not licensed to perform mental health diagnosis and treatment. Additionally, it is not clear what the requirement is for SNFs under 120 beds.

Despite efforts by NASW and others to clarify the distinction between medically-related social services as a condition of participation and mental health diagnosis and treatment provided by clinical social workers, HCFA’s final regulation revised the language of the proposed rule and prohibited any reimbursement for clinical social work services to residents of SNFs under Medicare Part B. NASW strongly disagrees with this determination. Furthermore, we find the final rule very confusing on the issue related to coverage of clinical social worker services in SNFs and feel that there is little justification for the determination to eliminate coverage for such services.

The final rule also points to the nursing home regulation requiring specialized rehabilitative services for mental illness (42 CFR Part 483.45) as another justification for eliminating reimbursement for clinical social work services. What they fail to acknowledge is that these regulations do not specify which provider must provide these services, other than that these services must be provided under the written order of a physician by qualified personnel.

Not knowing about the impending release of the April 23rd regulations, NASW was deeply concerned about the impact of the new provision in Section 4432(b) of the Balanced Budget Act of 1997 (BBA) that required consolidated billing for many contract services provided to residents of nursing homes under Medicare Part B. This requirement meant that service providers such as clinical social workers could no longer bill Medicare Part B directly but would be required, effective July 1, 1998, to submit their bills to the SNFs, who in turn would bill Medicare and then reimburse the social worker. Clinical psychologists and psychiatrists were specifically excluded in the BBA from the consolidated billing requirement.

After hearing from hundreds of social workers and firms that provide mental health services to SNF residents, it is clear that the consolidated billing provision will result in loss of jobs or reduced reimbursement for thousands of clinical social workers. SNFs would rather contract with psychologists who can bill Medicare Part B directly and firms providing mental health services could not afford to retain clinical social workers who could not bill Medicare directly. Additionally, nursing home residents, particularly those in rural and urban underserved areas would not get the mental health services they need, since clinical social workers are often the only mental health providers available to provide such services. Consolidated billing would also mean higher costs for Medicare, since clinical psychologists can bill 25 percent higher than clinical social workers. Clearly, this is not what Congress intended.

NASW, working with a number of members of Congress introduced the Medicare Social Work Equity Act, H.R. 3570 and S. 1864, on March 26, 1998. This legislation would amend the BBA to exclude clinical social workers from the consolidated billing requirement. The lead cosponsors of the bill are Senator Barbara Mikulski (D-MD) and Representative Pete Stark (D-CA). As of today, the bill has six cosponsors on the Senate side and 30 on the House side. NASW has been working closely with the Clinical Social Work Federation to seek passage of this legislation. Additionally, this legislation has been endorsed by the American Health Care Association, the National Citizens’ Coalition for Nursing Home Reform, the American Society on Aging, and the Coalition on Mental Health and Aging. There are other organizations that have also expressed support for this legislation.

NASW and the Federation have also met with HCFA officials on the consolidated billing issue to determine if corrective action could be done through the regulatory process. In a formal response from HCFA, we were notified that legislation was required. At no time, did HCFA inform NASW that new regulations on clinical social workers would be released shortly that would supercede any attempt to amend the BBA regarding consolidated billing. Clearly, one side of HCFA did not appear to know what the other side was doing. In a meeting with the Director of HCFA’s Chronic Care and Purchasing Group, he expressed the view that he would not oppose NASW’s efforts to seek a legislative remedy regarding consolidated billing. Additionally, in April, HCFA issued its Program Memorandum to Medicare carriers and fiscal intermediaries on consolidated billing and specifically mentioned clinical social workers as being subject to consolidated billing.

It was only after talking to staff in the Division of Practitioner and Ambulatory Care, Plan and Provider Purchasing Policy Group, that we were told that the April 23rd rule would supercede any attempts to amend the BBA since clinical social worker services would no longer be eligible for reimbursement under consolidated billing. These regulations have already caused confusion and chaos and the losers will be nursing home residents who deserve to be treated for mental disorders, which is a serious and pervasive problem in nursing homes, and thousands of clinical social workers who are committed to serving nursing home residents. This is a travesty.

NASW believes that these regulations unfairly discriminate against social workers and that they do not interpret the law as Congress intended. Although we recognize that the April 23rd rule are final regulations, our hope is that those provisions related to clinical social worker services in SNFs will not be put into effect, thus allowing for continued reimbursement for clinical social work services in SNFs under Medicare Part B. We request the opportunity to work with HCFA to ensure the continued availability of essential clinical social work services for skilled nursing facility residents and continued access to critical mental health services.
May 28, 1998

NASW Government Relations Contact:
Madeleine Golde,
Phone: (202) 336-8261 or 1-800-638-8799, extension 237
Fax: (202) 336-8311
E-mail: mgolde@naswdc.org