When could Kentucky public schools claim Medicaid reimbursement for speech services by teachers certified through the EPSB?

Plain-English summary

Kentucky's Attorney General concluded that a public school employee's Education Professional Standards Board certificate did not, by itself, decide whether Medicaid would reimburse speech-language pathology services. The federal rule required services to be provided by or “under the direction of” a speech pathologist who met its qualifications. The AG's answer therefore varied with each employee's education, experience, and role. The opinion expressly said it was “not possible to state categorically” whether every service under any one EPSB certificate was reimbursable.

A professional-certificate holder could qualify as a speech pathologist if the federal education and work-experience standards were met. A holder who did not meet them could still furnish potentially reimbursable services under the direction of a federally qualified speech pathologist. The same direction requirement applied to a speech-language pathology assistant. The older standard certificate was more complicated because it could be issued for a master's degree in communication rather than speech-language pathology; the AG said services by that holder as a speech pathologist would not be reimbursable, while services under a qualified pathologist's direction could be.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did an EPSB speech certificate automatically qualify a teacher's services for Medicaid reimbursement? A: No. The AG applied the federal rule to the person's qualifications and to whether the person worked as a qualifying speech pathologist or under one. The certificate type alone did not settle the question.

Q: Could a speech-language pathology assistant provide reimbursable school services? A: The AG said an assistant with the SLPA certificate could do so when the services were provided under the direction of someone who met the federal definition of speech pathologist. Supervision by a person qualified under Kentucky's EPSB rule was not, by itself, the federal test.

Q: What about a professional-certificate holder without the required federal qualifications? A: The opinion said that person could still provide some reimbursable services if they were rendered under the direction of a speech pathologist who met the federal qualifications.

Q: Did the opinion decide whether Kentucky board licensure was equivalent to ASHA certification? A: No. A footnote says the AG had not been asked whether the Kentucky board's licensure standards were equivalent to the ASHA standards and did not address that issue.

Background and statutory framework

Kentucky's EPSB regulation, 16 KAR 2:050, recognized an older standard certificate, a professional certificate, and an assistant certificate for school communication-disorders services. The AG compared those categories with 42 C.F.R. § 440.110(c), which defined eligible services and a qualifying “speech pathologist.” Under the federal text quoted in the opinion, a person could qualify through clinical-competence certification, equivalent education and work experience, or completion of an academic program while acquiring supervised experience. Services by another person could qualify if provided under the direction of such a pathologist.

For the professional certificate, the AG distinguished educational requirements from the separate work-experience requirement. For the assistant certificate, it distinguished Kentucky's supervision rule from the federal qualifications of the person directing Medicaid-covered services. For the old standard certificate, a communication degree alone did not meet the speech-language pathology graduate-study requirement the AG found in the referenced ASHA standards. The opinion left individual determinations to the facts of each provider.

Citations and references

• 42 C.F.R. § 440.110(c): federal speech-service and speech-pathologist definitions applied by the opinion.
• 16 KAR 2:050: the EPSB certificate categories the opinion examined.
• KRS 157.200(1), KRS 334A.020(4), and KRS 334A.035: Kentucky school-service and licensing framework discussed by the AG.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_ca806688-0c80-4341-a693-232282ecdd9d/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_ca806688-0c80-4341-a693-232282ecdd9d

Original opinion text

OAG 08-004

May 30, 2008

Subject: Eligibility of persons certified by the Education Pro- fessional Standards Board to qualify for Medicaid re- imbursement for speech pathology services provided in public schools

Requested by: Anne E. Keating, Esq.
Assistant General Counsel
Department of Education

Written by: James M. Herrick
Assistant Attorney General

Syllabus: To be eligible for Medicaid reimbursement for speech pathology services under federal regulations, a provider must either be or work under the direction of a speech pathologist. A speech pathologist under federal regulations must have ASHA certification or its equivalent or have a master’s degree in speech- language pathology and be in the process of acquir- ing the necessary work experience for such certifica- tion. The application of this standard to persons cer- tified by the EPSB must be determined on a case-by- case basis.

Statutes construed: KRS 157.200(1), KRS 334A.020(4), KRS 334A.035

Regulations
construed: 16 KAR 2:050, 201 KAR 17:027, 42 C.F.R. § 440.110 OAG 08-004 Page 2

OAG’s cited: OAG 74-384, OAG 87-34

Opinion of the Attorney General

KRS 334A.030 mandates that persons engaged in the practice of speech-language pathology in the Commonwealth of Kentucky be li- censed by the Kentucky Board of Speech Language Pathology and Au- diology unless they are entitled to exemption from licensure under KRS 334A.040. OAG 74-384. In 1987, we opined that speech-language pathologists practicing exclusively in Kentucky’s public schools were subject to this state licensure requirement under a 1986 enactment. OAG 87-34. This was changed in 1988, when the General Assembly enacted KRS 334A.035, subsection (3) of which provides that “any speech-language pathologist employed by the public schools shall ap- ply for and maintain appropriate licensure.” That provision, by its non- specific language and in conjunction with KRS Chapter 161, allows for speech-language pathologists to be “licensed” for public-school-only practice by the Education Professional Standards Board (“EPSB”).

The statutes governing the EPSB in this regard are written in terms of the certification (rather than “licensure”) of “teachers of ex- ceptional children/communication disorders.” “Exceptional children” under KRS 157.200(1) includes, inter alios, persons under 21 years of age who require special educational programs or services due to speech or language impairment. “Speech or language impairment” is further defined in KRS 157.200(1)(c) as “a communication disorder … that adversely affects educational performance.” Teachers providing specially designed instruction for such pupils would be practicing speech pathology under the broad definition in KRS 334A.020(4):

“The practice of speech pathology” means the application of principles, methods, and procedures for the measure- ment, testing, audiometric screening, identification, ap- praisal, determination of prognosis, evaluation, consulta- tion, remediation, counseling, instruction, and research re- OAG 08-004
Page 3

lated to the development and disorders of speech, voice, verbal and written language, cognition/ communication, or oral and pharyngeal sensori-motor competencies for the purpose of designing and implementing programs for the amelioration of these disorders and conditions.

(Emphasis added.)

Prior to January 1, 2001, EPSB regulations provided for the is- suance of a “standard certificate for teachers of exceptional children and youth-communication disorders” (“standard certificate”), which authorized persons to teach in this capacity in the public schools with a master’s degree in either “communication or speech language pathol- ogy.” See 16 KAR 2:050, Section 1(4). Those regulations were modi- fied in 2000 following the enactment of KRS 161.053. Subsection (2) of KRS 161.053 states:

The Education Professional Standards Board shall issue two (2) levels of certification for teachers of exceptional chil- dren/communication disorders:
(a) Baccalaureate level certification shall be issued to a per- son who has:
1. Completed an approved program of preparation leading to a bachelor’s degree in speech-lan- guage pathology;
2. Been granted licensure as a speech-language pathology assistant from the Kentucky Board of Speech-Language Pathology and Audiology, un- der KRS Chapter 334A; and
3. Completed the other requirements set forth in subsection (1) of this section; and
(b)Master’s level certification shall be issued to a person who has:
1. Completed an approved program of preparation leading to a master’s degree in speech-language pathology; and
OAG 08-004
Page 4

2. Completed the other requirements specified in subsection (1) of this section.

Under the EPSB’s revised version of 16 KAR 2:050, effective in 2001, new applicants may receive one of two types of certificates, the “professional certificate for teachers of exceptional children/communi- cation disorders” (“professional certificate”) or the “professional certifi- cate for exceptional children/communication disorders/SLPA only” (“SLPA certificate”). 16 KAR 2:050 provides, in pertinent part:

Section 1. A student who meets the deadlines estab- lished in subsection (5) of this section shall meet the re- quirements established in this section for a standard certifi- cate.
(1) The standard certificate for teachers of excep- tional children and youth-communication disorders shall be issued in accordance with the pertinent Kentucky statutes and Education Professional Standards Board administrative regulations to an applicant who has completed the ap- proved program of preparation which corresponds to the certificate at a teacher education institution approved un- der the standards and procedures included in 16 KAR 5:010.
….
(3) The standard certificate for teachers of excep- tional children and youth-communication disorders shall be valid at all age levels for the instruction of exceptional chil- dren and youth with communication disorders.
(4) The standard certificate for teachers of excep- tional children and youth-communication disorders shall be issued to an applicant who has completed a master’s de- gree in communication or speech language pathology.
(5) A student enrolled in an approved preparation program leading to the standard certificate for teachers of exceptional children and youth communication disorders shall complete all required coursework by September 1, 2000 and apply for certification by December 31, 2000. A OAG 08-004
Page 5

student failing to meet these deadlines shall complete the preparation and certification requirements established in Section 2 of this administrative regulation.

Section 2. A student who does not meet the dead- lines established in Section 1(5) of this administrative regu- lation shall meet the requirements established in this sec- tion for a professional certificate.
(1) The professional certificate for teachers of excep- tional children/communication disorders shall be issued in accordance with the pertinent Kentucky statutes and Edu- cation Professional Standards Board administrative regula- tions to an applicant who has completed the approved pro- gram of preparation which corresponds to the certificate at a teacher education institution approved under the stan- dards and procedures included in 16 KAR 5:010.
….
(3) The professional certificate for teachers of excep- tional children/communication disorders shall be valid at all age levels for the instruction of exceptional children with communication disorders.
(4) The professional certificate for teachers of excep- tional children/communication disorders shall be issued to an applicant who has completed a master’s degree in speech language pathology.

Section 3. (1) Beginning July 14, 2000, the Educa- tion Professional Standards Board shall certify teachers of exceptional children/communication disorders who hold li- censure as a speech-language pathology assistant issued by the Kentucky Board of Speech Language Pathology and Audiology under KRS Chapter 334A who meet the qualifica- tions established in this section of this administrative regu- lation.
(2)(a) Applicants who possess a valid license for speech language pathology assistant issued under KRS Chapter 334A who have at least one (1) year of successful OAG 08-004
Page 6

experience in Kentucky’s public schools in this position shall be issued the “professional certificate for exceptional children/communication disorders/SLPA only” valid for five (5) years and shall be renewed for subsequent five (5) year periods upon completion of the renewal requirements es- tablished KAR Title. [sic]
….
(5) A teacher certified under this section of this ad- ministrative regulation shall remain a speech language pathology assistant requiring supervision under KRS Chap- ter 334A until the teacher:
(a) Completes the master’s degree in speech lan- guage pathology; and
(b) Gains the professional certificate for exceptional children/communication disorders established in Section 2 of this administrative regulation.

The question presented is whether, and under what circumstances, a person holding one of the certificates issued by the EPSB pursuant to 16 KAR 2:050 is entitled to obtain Medicaid reimbursement for speech- language pathology services rendered to students.

Medicaid reimbursement eligibility is governed by regulations promulgated by the Department of Health and Human Services. 42 C.F.R. § 440.110(c) states, in part, as follows:

(1) Services for individuals with speech, hearing, and language disorders means diagnostic, screening, preven- tive, or corrective services provided by or under the direc- tion of a speech pathologist or audiologist, for which a pa- tient is referred by a physician or other licensed practi- tioner of the healing arts within the scope of his or her practice under State law. It includes any necessary sup- plies and equipment.
(2) A “speech pathologist” is an individual who meets one of the following conditions:
OAG 08-004
Page 7

(i) Has a certificate of clinical competence from the American Speech and Hearing Association.
(ii) Has completed the equivalent educational re- quirements and work experience necessary for the certifi- cate.
(iii) Has completed the academic program and is ac- quiring supervised work experience to qualify for the cer- tificate.

Speech pathology services submitted for Medicaid reimbursement must qualify under the definition in subsection (1) of § 440.110(c). Ser- vices provided by or under the direction of audiologists are outside the scope of the question with which we have been presented, so that we need only address services provided by or under the direction of a speech pathologist.

Unquestionably, any person operating in the public schools who holds a certificate as a speech pathologist from the American Speech and Hearing Association (ASHA) would qualify as a speech pathologist under subsection (2)(i). The question arises when non-ASHA-certified individuals are providing services to students pursuant to one of the EPSB-issued certificates.1 Such a provider would have to be a speech pathologist as defined in 42 C.F.R. § 440.110(c)(2), or else must provide services “under the direction of a speech pathologist” within the mean- ing of 42 C.F.R. § 440.110(c)(1).

The “professional certificate”

In the case of the professional certificate (Section 2 of the EPSB regulation, 16 KAR 2:050), it is noteworthy that the service provider may or may not be a person with a completed master’s degree in speech-language pathology. Section 2(4) provides that the profes- sional certificate “shall be issued to an applicant who has completed a

1
We have not been asked for an opinion on whether the standards for licensure by the Kentucky Board of Speech Language Pathology and Audiology under KRS Chapter 334A are “equivalent” to the ASHA standards, and accordingly do not address that is- sue. OAG 08-004 Page 8

master’s degree in speech language pathology,” but Section 2(1) also provides that it “shall be issued in accordance with the pertinent Ken- tucky statutes and [EPSB] regulations to an applicant who has com- pleted the approved program of preparation which corresponds to the certificate at a teacher education institution approved under the stan- dards and procedures included in 16 KAR 5:010.”2

In cases where the certificate is issued pursuant to 16 KAR 2:050, Section 2(4), this would seem in most cases to fulfill the “equivalent educational requirements” prong of 42 C.F.R. § 440.110(c)(2)(ii), since the 2005 ASHA standards3 specify that an applicable graduate study program must be accredited in speech-language pathology by the Council on Academic Accreditation in Audiology and Speech-Language Pathology. If the certificate is issued under 16 KAR 2:050, Section 2(1), on the other hand, the holder of that certificate must actually have a master’s degree in speech-language pathology in order to qualify un- der the ASHA standards referenced in the federal regulation.

Whether the “work experience” prong of 42 C.F.R. § 440.110(c) (2)(ii) is fulfilled by a professional-certificate holder must depend on each individual’s circumstances. The ASHA standards 4 specify a mini- mum of 400 clock hours, including 25 hours spent in clinical observa- tion and 375 hours in direct contact with clients.

We note, however, that even a professional-certificate holder who fails to meet the “educational” or “work experience” requirements of the federal regulation can still provide some Medicaid-reimbursable services, as long as those services are rendered “under the direction of” another person who does meet all the federal qualifications for a speech pathologist. 42 C.F.R. § 440.110(c)(1); 440.110(c)(2)(iii).

2
We assume, for purposes of this opinion, that the language of KRS 161.053 autho- rizes the EPSB to issue a professional certificate to a person who has not completed a master’s degree in speech-language pathology. 3 Specifically, standard IV-D, found at: http://www.asha.org/about/membership-certification/handbooks/slp/slp_standard- s.htm 4 Id., standard IV-C.
OAG 08-004
Page 9

The “SLPA certificate”

Turning to the SLPA certificate (Section 3 of 16 KAR 2:050), we note that this section of the EPSB regulation expressly applies to speech pathology assistants, who are required by KRS 334A.033 to be licensed by the Kentucky Board of Speech Language Pathology and Au- diology, to practice in the public schools exclusively, and to work “un- der the supervision of an appropriately qualified supervisor.” Pursuant to 201 KAR 17:027, Section 3(1), an appropriately qualified supervisor can be either a licensed speech-language pathologist or “a ‘certified’ speech-language pathologist as defined by the Education Professional Standards Board” (i.e., a person holding the EPSB professional certifi- cate).

An assistant with the SLPA certificate could seek Medicaid reim- bursement for services provided “under the direction of” a speech pathologist pursuant to 42 C.F.R. § 440.110(c)(1). The SLPA-certificate holder’s services, however, are reimbursable only if the speech pathol- ogist directing those services is qualified for reimbursement under the federal regulation’s definition of “speech pathologist,” as discussed above.

The “standard certificate”

Somewhat more problematic is the pre-2001 standard certificate (Section 1 of 16 KAR 2:050), since the EPSB regulation expressly states that this certificate could be issued to a person with a master’s degree in either “communication or speech language pathology.” The ASHA standards, referenced by the federal regulation, treat speech-language pathology as the only recognized program of graduate study. Services rendered by a person with a communication degree acting as a speech-language pathologist under the standard certificate would not be reimbursable by Medicaid. If, however, such a person were working OAG 08-004 Page 10

“under the direction of” a speech pathologist qualifying under the 42 C.F.R. § 440.110(c)(2) definition, those services would be reimbursable.

Holders of the standard certificate who have graduate degrees in speech-language pathology, if they otherwise qualify as speech pathol- ogists under the federal regulation, should be potentially eligible for Medicaid reimbursement. The analysis in such cases would be same as discussed above for holders of the professional certificate.

In short, then, it is not possible to state categorically whether all services provided under any type of certificate under 16 KAR 2:050 are reimbursable by Medicaid or not. The answer is likely to vary depend- ing on the qualifications of each individual and the capacity (i.e., speech pathologist or assistant) in which those services are rendered.

Jack Conway
Attorney General

James M. Herrick
Assistant Attorney General