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Introduction
A general consensus has resounded throughout the testimonies that being a need
for financial reform, but the foremost question before this body is, “Have the waivers
worked?” Yes. The waivers have elevated the need for financial child welfare reform to
the national agenda, but have failed to demonstrate the most serious nature in the
promotion of child well-being, which is the need for transparency and accountability.
It is a novel concept to believe the child welfare industry operates without any
flaws but reform may only be formulated with an expansion of waivers.
Expansion of the scope of waivers must go beyond the Title IV-E rule of
construction funding stream to become more inclusive of demonstration projects which
must incorporate transparency and accountability in the area of Medicaid.1
Traditionally, the only way for children and individual family members to access
needed services and resources (i.e. housing, medical, transportation, education,
employment) has met by Title IV-A poverty-means testing, the eligibility criteria for
child welfare services, statistically reported as neglect. Much of the time this eligibility
criteria leads to unnecessary and improper removals of children to be placed in long-term
situations of foster care. The purpose of Home and Community-Based Services (HCBS)
is to provide targeted benefits to keep children in the least-restrictive and most integrated
settings based upon States’ Medicaid options of financial eligibility, respective of Federal
Poverty Level.
1
Letter dated August 6, 2010 from the Center for Medicaid, CHIP, Survey & Certification to the States
Medicaid Director informing of several changes to Section 1915(i) of the Social Security Act
(the Act) made by the Affordable Care Act (ACA)1. These changes, which become effective October 1,
2010, include revised and new 1915(i) provisions for removal of barriers to offering home and community-
based services (HCBS) through the Medicaid State plan. This letter is intended to provide States guidance
on those important changes to the law.
Capacities for Medicaid Regulation to Improve the Well-being of Children
In the event a child welfare agency was found to be ineligible as a child welfare
services provider, the remedy is to reorganize under a different name, for there is limited
to no competition in local regions, allowing rates to be set without comparability to
quality and delivery of services with other regions. These actions and inactions set the
stage for fraud, waste and abuse in child welfare services which artificially generate
national statistics presenting a false façade for the current well-being of children.
3. State Medicaid Fraud Control Units: In the arena of child welfare, there are no
State provisions which penalize the States Medicaid Director for not reporting violations
of law, including Medicaid fraud, to the States Attorney General, who heads up the
Medicaid Fraud Control Unit11, therefore, violations of the material provisions of federal
or state laws would not necessitate exclusion from the Medicaid providers program as
assurances for the reporting of other States agencies outside its Medicaid Directors
authority.
Reinvestment Act of 2009 (Recovery Act), Pub. L. 111-5 which establishes a program for payment to
providers who adopt and become meaningful users of electronic health records.
10
435 F.3d 326. STATE OF NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Appellee v. DEPARTMENT OF HEALTH AND HUMAN SERVICES and Michael O. Leavitt, Secretary
of the Department of Health and Human Services, Appellants. No. 04-5429.
11
It must be noted that there are some States that do not house its Medicaid Fraud Control Unit in its Office
of Attorney General.
12
TRAN v. RUFFIN, Office of Children’s Ombudsman, Michigan Court of Appeals # 291799, 2009.
13
U.S. Department of Health and Human Services Office of Inspector General Interstate Compact on the
Placement of Children: State Structure and Process, OEI -02-95-00041.
Adoption and Medical Assistance.14 What this means is that States are allowed to violate
established federal policies while creating an unprotected environment for penalties
against individuals who possess first-hand knowledge of the violations against the well-
being of children receiving services.
These egregious actions and inactions of the States extend further than the
Interstate Compacts; it specifically deals with the original custodians and those
individuals who care deeply for the children who are under the auspices of the States.
Grievance databases have been provided for in the Hague Adoption Convention15
but are non-existent for the States. Silence abounds for the well-being of children as the
child industry is shrouded by the codified iron veil of parens patriae.
Conclusion
There is only one way to improve the well-being of children receiving child
welfare services and that is to end the culture of secrecy. It is only through the
reformation of the financial structures will there be transparency and accountability in the
child welfare industry. Medicaid regulations are well established to implement regulation
of this industry that has been allowed to rampantly flourish with fraud, waste and abuse
of children’s services and resources, yet it remains suspended in the states of moratoria.16
14
U.S. Department of Health and Human Services Office of Inspector General Interstate Compact on
Adoption and Medical Assistance, OEI 02-05-00040.
15
The Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country
Adoption (Hague Adoption Convention) is an international agreement to safeguard intercountry adoptions.
Concluded on May 29, 1993 in The Hague, the Netherlands, the Convention establishes international
standards of practices for intercountry adoptions. The United States signed the Convention in 1994, and
the Convention entered into force for the United States in April 2008.
16
Executive Office of the President, Office of Management and Budget, Statement on Administration
Policy H.R. 5613 Protecting the Medicaid Safety Net, 2008.
17
OMB Circular A-87.