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

June 15, 1998

Honorable Donna Shalala
Secretary of Health and Human Services
Hubert H. Humphrey Building, Room 615F
200 Independence Avenue, SW
Washington, DC 20201

Dear Secretary Shalala:

On May 28, 1998, I wrote you seeking a meeting regarding the scheduled implementation of the final rule on the "Scope of Medicare Benefits and Application of the Outpatient Mental Health Treatment Limitation to Clinical Psychologist and Clinical Social Worker Services," 63 Fed. Reg. 2010, April 1998 (hereafter, "The Final Rule"). Now, I am urgently requesting that you take steps immediately to prevent the implementation of those portions of the regulations that prevent the reimbursement of clinical social worker services provided to residents in skilled nursing facilities.

If the Rule goes into effect as scheduled on June 22, significant harm and chaos will result. Elderly and disabled individuals suffering from mental illness in skilled nursing facilities ("SNFs")—who are currently being treated by licensed clinical social workers—will be deprived of necessary therapy and will suffer accordingly. Even those beneficiaries who are fortunate to live in areas serviced by an adequate number of psychologists will suffer the loss of established therapeutic relationships. Many beneficiaries, particularly those in rural and under-served metropolitan areas, will be denied access to treatment.

The provisions of the new Rule that will end Medicare coverage of social work services are contrary to congressional intent, to HCFA’s long-standing interpretation of the law, and to current practice. The law has not changed since enactment in 1989. In spite of this fact, the new Final Rule fundamentally changes the way in which mental health treatment is being provided in SNFs without legal support for the new interpretation. These bizarre results fly in the face of the congressional intent to ensure increased access to mental health services for residents of SNFs.

I am, therefore, urging you to withdraw the provisions of the Final Rule that will eliminate Medicare coverage for clinical social worker services provided to residents of SNFs. While we are prepared to meet with you to discuss this request, due to the June 22 implementation date for the Final Regulation, we are urging you to take immediate action.

We strongly believe that the position taken by HCFA in the Final Rule is flatly wrong, whether viewed from the standpoint of policy, equity, or the law. The basis for our conclusion is outlined as follows:

1. The statutory language relied on by HCFA

   • Was intended only to prevent duplicate billing;
   • Has been read by HCFA since its adoption in 1989 to permit coverage of clinical social workers services (i.e., diagnosis and treatment of mental illness by Clinical Social Workers) in SNFs; and
   • Was intended to increase, not restrict, access to mental health services.

2. HCFA’s efforts to implement SNF consolidated billing, as reflected in Program Memorandum (Transmittal No. AB-98-18) issued April, 1998—the same month as the Rule—expressly interpreted the law as authorizing coverage of clinical social worker services in SNFs.
3. Clinical social worker services are patient specific and are not part of the "package" of services that SNFs are required to provide to all residents. The Rule does not distinguish these from the medically related social worker services that SNFs are required to provide to participate in Medicare, such as intake and discharge planning. These are fundamentally different from the diagnosis and treatment of mental illness provided by clinical social workers.
4. The "social workers" that a SNF must provide to participate in Medicare (only if the SNF has at least 120 beds) do not have the same level of qualifications as clinical social workers and are not professionally licensed to diagnose and treat mental illness.
5. Clinical psychologists may not be available or willing to replace clinical social workers in SNFs, but if they do, Medicare will pay 25 percent more, and beneficiary out-of-pocket costs will go up needlessly.

Neither HCFA nor the carriers have made provisions for orderly implementation of the Final Rule or for ensuring continued access to care. No notice has been sent to SNFs, to clinical social worker providers, or to covered beneficiaries, thus adding to the chaos and confusion about the impact and intended effect of the Rule.

In order to avoid this serious harm which will be put in motion on June 22 and on behalf of the National Association of Social Workers, I am requesting you to withdraw the portions of the Final Rule related to clinical social worker services. Until this occurs, we will be exploring every viable avenue for relief, including injunctive relief in the courts to protect beneficiaries, clinical social workers and the Medicare program.

We need your immediate attention to this critical matter and we are prepared to meet with you at anytime. I can be reached at (202) 336-8200.

Sincerely,

Josephine Nieves, Ph.D., MSW
Executive Director

Enclosure Copies to:

Kevin Thurm, Deputy Secretary
Nancy-Ann Min DeParle, Administrator, Health Care Financing Administration
Harriet Rabb, General Counsel, Department of Health & Human Services
Representative Richard Gebhardt
Senator Thomas A Daschle
Representative Fortney "Pete" Stark
Senator Barbara Mikulski
Chris Jennings, White House
Barbara Wooley, White House