May 4, 2009
Centers for Medicare and Medicaid Services
Department of Health and Human Services
Attention: CMS-2232-F2
PO Box 8016
Baltimore, MD 21244-8016
Re: CMS-2232-F2 (Medicaid benchmark regulations)
Dear Ms. Gerhardt:
The National Health Law Program is a public interest law firm
working to maintain and improve access to quality health care for lowincome people, children, people with disabilities, and people of color. We provide legal analysis and representation, education, and policy advocacy.
With offices in California, North Carolina, and Washington, DC, NHeLP
provides specialized assistance on public health insurance matters to
attorneys, community-based organizations, state and national policy
makers, and parents and program beneficiaries. We are writing to
comment on regulations addressing State Flexibility for Medicaid Benefit
Packages, which currently have a delayed effective date of December 31,
2009.
We ask that these regulations be permanently withdrawn and new
regulations be issued, for the following reasons:
1. The regulations are inconsistent with CHIPRA?s
unambiguous congressional intent restoring the centrality
of EPSDT for Medicaid-eligible children and youth.
With CHIPRA, Congress makes it clear that it still considers the
Early and Periodic Screening, Diagnostic and Treatment service (EPSDT)
a primary component of the Medicaid program?not surprising given the
numbers of children and youth who depend on Medicaid to meet their
disproportionate needs for health and assistance services. CHIPRA
clarifies that states must ?provide EPSDT services for all children in
benchmark benefit packages under Medicaid.? See CHIPRA, § 611(a).
The Deficit Reduction Act of 2005 (DRA) benchmark provision
improperly excluded children aged 19-21 from the protection of the
EPSDT provisions. CHIPRA corrects this error by requiring state benchmark programs
to cover Medicaid-eligible individuals under age 21.
CHIPRA also revises the law to ensure that children under age 21 actually
receive EPSDT. Specifically, CHIPRA removes the word ?wraparound? from the
benchmark option. This means that EPSDT must be restored as the central, critical
service for children and youth under age 21, whether or not they are enrolled in a
benchmark plan. In other words, EPSDT cannot be a one-line promise by states in their
state plan requests; rather, the regulations should require that state plan proposals fully
explain how EPSDT will be maintained and place states on notice of how their programs
will be monitored to ensure that children?s access to EPSDT is being maintained and
improved under the benchmarks.
The CHIPRA change also signals that Congress intends that beneficiaries and
their families actually understand the EPSDT program and service options and that the
program is fully available to them. To this end, the benchmark regulations must require
states offering benchmark options to assure effective and actual access to the full range
of EPSDT, not through confusing ?wraparound? options. This means: (1) timely and
effective informing of families and youth about EPSDT, (2) periodic and interperiodic
medical, vision, hearing and dental screening, (3) comprehensive treatment (as
described in 42 U.S.C. § 1396d(a) when needed by the individual child to correct or
ameliorate a physical or mental condition), and (4) reporting to allow timely and
accurate completion of the CMS Form-416. See CHIPRA 611(a) (amending 42 U.S.C.
§ 1396u-7(a)(1)(A)(ii) and citing 42 U.S.C.§§ 1396d(a)(4)(B), a(a)(10), a(a)(17),
a(a)(43), d(r)).
Accordingly, as currently written, 42 C.F.R. § 440.345 is inconsistent with
CHIPRA and must be withdrawn.
2. The regulations are inconsistent with CHIPRA?s unambiguous
provisions allowing only select Medicaid provisions to be ignored in
benchmark programs.
The DRA appeared to allow states to ignore any provision of title XIX when
exercising the benchmark option. CHIPRA corrects this misimpression by amending
the Medicaid Act to list the specific Medicaid provisions that can be disregarded in state
plans using benchmark coverage. Compare previous 42 U.S.C. § 1396u-7(a)(1)(A)
(?Notwithstanding any other provision of this subchapter.??) with CHIPRA § 611(a)
(amending § 1396u-7 to state: ?Notwithstanding [§ 1396a(a)(1)] (requiring
statewideness), [§ 1396a(a)(10)(B)] (requiring comparability) and any other provision of
this title which would be directly contrary to the authority under this section??)
(Emphasis added). The amended statute allows states to ignore only a few specified
Medicaid provisions. Other than a direct conflict with 42 U.S.C. § 1396a(a)(23)(A), the
?freedom of choice? provision, in those states requiring enrollment in a managed care
entity, our review of title XIX revealed no other provision that, on its face, would be
?directly contrary? to the benchmark option. When CMS re-writes and re-promulgates
the benchmark regulations, we urge the agency to establish a presumption that will
allow states to ignore only statewideness; comparability; and, when appropriate,
freedom of choice.
As examples of required provisions: (1) CHIPRA includes a number of quality of
care and health outcome measures that will be undermined if they are not incorporated
into benchmark options. In fact, because these measures are not directly contrary to
the benchmark option, they must be incorporated into any benchmark plan. For
example, a benchmark state must assure that ?no evidence based quality measure
developed, published, or used as a basis of measurement or reporting under CHIPRA
401(b) may be used to establish an irrebuttable presumption regarding either the
medical necessity of care or the maximum permissible coverage for any individual child
who is eligible for and receiving medical assistance? under Medicaid or CHIP. See
CHIPRA § 401(b). (2) The Due Process Clause of the US Constitution requires
individuals to receive adequate notice and an opportunity for a fair hearing whenever
their claims are denied, reduced, terminated, or not acted on with reasonable
promptness. See Goldberg v. Kelly, 397 U.S. 254 (1970); 42 U.S.C. § 1396a(a)(3); 42
C.F.R. § 431.200 et seq. (expressly implementing Goldberg). All benchmarkparticipating plans must meet these individualized notice and fair hearing requirements.
3. The regulations are inconsistent with CHIPRA?s modifications of the
Secretary-approved benchmark coverage option.
The previous Administration has approved most states? benchmark requests
through the standardless ?Secretary-approved? benchmark option. See 42 U.S.C. §
1396u-7(b). The states worked with the Bush Administration to implement the coverage
and, as applied, it was not at all clear what criteria the Secretary used to approve the
state plans. The CHIPRA amendments order a halt to this practice. Because the
current regulations do not incorporate the CHIPRA changes, they must be withdrawn.
CHIPRA provides that on the date a state plan amendment is approved, the
DHHS Secretary must publish on the CMS website a list of the Medicaid provisions that
the Secretary has determined do not apply in order to enable the state to carry out the
plan amendment and the reasons for each such determination. (As noted above, the
Secretary should allow states to ignore only a few, specified Medicaid provisions.) This
authority needs to be implemented in regulation, and it needs to be coordinated with the
current requirement, which should be maintained, that states must secure public input
prior to the submission of any state plan amendment to CMS. See current 42 C.F.R.
440.305(d). The revised regulations should inform states that they must list the specific
Medicaid Act provisions they seek to ignore, obtain public input regarding this planned
action, and that CMS will consider allowing the state to ignore only those provisions that
have been subjected to public input. Moreover, with respect to public input, CMS
should use re-promulgation as an opportunity to advance President Obama?s
encouragement of government transparency by establishing minimum standards for
assuring meaningful public input as states are developing their plans.
The benchmark regulations need to be revised to incorporate standards for the
Secretary-approved benchmark. The West Virginia Secretary-approved benchmark
plan, Mountain Health Choices, illustrates why standards are badly needed. Our office
is involved in ongoing litigation, D.W. v. Walker, on behalf of children who are being
harmed by the approval of the benchmark plan. Under this plan, children are enrolled in
a ?basic? health plan, unless their parents sign and adhere to a patient responsibility
agreement. Parents who meet the agreement gain access to an ?enhanced? benefit
plan for their children. The basic plan for children contains a number of benefit
exclusions and quantitative or monetary caps on benefits, including:
? Weight management ? not covered
? Nutrition education services ? not covered
? Private duty nursing services ? not covered
? Inpatient hospital psychiatric services — 30 days/year
? Prescription drugs ? 4/month
? Speech and related therapies ? 20/year(for all therapies combined)
? Vision services ? maximum of $750/year
? Chemical dependency/mental health services ? 25/year.
Our own investigations and recent reports have shown that parents, providers,
and community groups are confused by the new plan. Children are going without
necessary care and services. For example, D.W. is in the basic health plan. He has
been diagnosed with several learning disabilities. As alleged in our complaint, he was
experiencing difficulty in school beyond explanation of these disabilities. Ultimately,
D.W. was diagnosed with a hearing impairment. He sought treatment from a hearing
specialist pursuant to a referral from his treating physician but could not get the
treatment because he was told it is not covered by the basic plan. D.W. also sought
treatment from a certified mental health counselor but could not get it. (D.W. received
no written notices of the denied coverage.) As of December 2008, approximately 85
percent of those enrolled in Mountain Health Choices are children, and approximately
93 percent of children are enrolled in the basic plan. Despite the longer implementation
time in the three start-up counties (Clay, Upshur, Lincoln), 85 percent of the children in
these counties are in the basic plan. This is unacceptable, and the current
regulations?which are written to perpetuate and repeat these circumstances?should
be withdrawn.
4. The regulations need to be revised to include family planning and
necessary transportation as mandatory services for adults and children
in benchmark plans.
The current regulations do not clearly require benchmark plans to include the full
range of family planning services and supplies for both EPSDT-eligible youth and
covered adult populations. The CHIPRA revisions limit states? ability to ignore Medicaid
provisions. The Secretary should not allow states to ignore 42 U.S.C. § 1396d(a)(4)(C),
listing family planning services and supplies as a mandatory Medicaid service, and 42
U.S.C. § 1396a(a)(23)(B), requiring managed care entities to maintain freedom of
choice of family planning service provider. These provisions are necessary so that
Medicaid can be operated in the best interests of the beneficiaries, as required by 42
U.S.C. § 1396a(a)(19)?a Medicaid provision that clearly cannot be ignored in a
benchmark program.
The current regulations also omit the assurance of necessary transportation
services for individuals in benchmark plans. We strongly disagree with the reasoning of
the previous administration that excused benchmark plans from assuring necessary
transportation, 73 Fed. Reg. 73,714-19. We urge CMS to reverse the policy. Adults,
children and youth qualify for Medicaid because they are unable to afford life?s basic
daily necessities and health care. Enrollment of an individual into a benchmark plan
does not change this. Thus, CMS should find that 42 U.S.C. § 1396a(a)(19) and §
1396a(a)(4) continue to require assurance of necessary transportation in all states,
including those using benchmark plans. Moreover, as a matter of law, the CHIPRA
change to § 1396u-7 means that § 1396a(a)(4) cannot be ignored because it is not
?directly contrary? to the benchmark option. Thus, the transportation requirement
implemented pursuant to that statute, 42 C.F.R. § 431.53, must remain in full force and
effect and cannot be ignored in benchmark states.
5. The regulations need to be withdrawn so that provisions for exempting
populations and covering benefits are consistent with the Americans
with Disabilities Act (ADA).
The Department of Health and Human Services is a federal agency charged with
guiding and monitoring ADA implementation. As services, programs or activities of a
public entity, state Medicaid programs must adhere to the requirements of the ADA. 42
U.S.C. § 12132.
The current regulations rejected suggestions for assuring adequate coverage of
mental health services and services for beneficiaries with life-threatening conditions
such as AIDS/HIV. The federal agency refused to alter the regulations and told these
commenters to take their concerns to the states. See, e.g.,73 Fed. Reg. 73,698-99.
With this response, the federal agency failed its responsibility to implement and enforce
the ADA. The current benchmark regulations should be withdrawn and revised to
include requirements for benchmark plans to maintain and improve access to mental
health services and services for beneficiaries with life-threatening conditions. Moreover,
the regulations should include requirements for benchmark plans to make reasonable
accommodations (e.g. medically appropriate transportation, person-centered home care
services) for those enrollees who are qualified individuals with disabilities.
In addition, ?medically frail? populations are exempted from mandatory
enrollment. However, the definition of ?medically frail? that is incorporated into the
current regulations is insufficient. The regulations do incorporate some exemptions
from the managed care regulations (42 C.F.R. § 438.50(d)(1) and (3)) for beneficiaries
who are also eligible for Medicare and certain children under age 19 (e.g. foster care,
SSI-eligible)). Otherwise, states are given the option to decide who else may qualify as
medically frail. To begin with, reliance on the managed care regulations is insufficient
because the enrollment processes produce very different results. The managed care
enrollees covered by 42 C.F.R. § 438 remain entitled to the full range of Medicaid
benefits and services. By contrast, benchmark enrollees are enrolled in commercial or
Secretary-approved plans that do not operate according to traditional Medicaid
provisions that are specifically designed to meet the health and access needs of lowincome people. Moreover, the ADA is a federal law that establishes federal standards
and protections for people with disabilities, who broadly include medically frail
individuals. It is inconsistent with the ADA to allow the definition of medically frail to
vary from state-to-state. For example, it would be harmful for any person who is bipolar, but not medically frail as currently defined, to have to enroll in a benchmark that
limits mental health and psychiatric care. The definition should be revised to set a
national floor for the definition, to include individuals with multiple medical conditions
and/or chronic illness.
6. CMS should withdraw the regulations and correct ?opt out? provisions
that are confusing and unfair to exempt population groups.
As enacted, the benchmark statute exempts many populations from mandatory
enrollment in benchmark plans. The current regulations allow states to enroll exempt
individuals on a voluntary basis. See 42 C.F.R. §§ 440.305, 440.320. NHeLP strongly
objects to the notion of ?voluntary? enrollment that the current regulations appear to
sanction. Specifically, state benchmark programs should not be allowed to use ?opt out?
enrollment whereby exempt population groups are enrolled in a benchmark plan and
then informed that enrollment is voluntary and they can get out of the plan at any time if
they want. Rather, the states should be required to provide full, understandable and
individualized information to exempt populations who, after that, can choose whether to
enroll and to get out of the plan at any time if they want. That is the common sense
concept of voluntary enrollment. Moreover, Congress exempted populations from
mandatory enrollment for a reason?they have ongoing and immediate health care
needs or have historically encountered barriers to care. The opt-out concept described
above is entirely inconsistent with congressional intent. Moreover, many states have
poor track records of adequately informing individuals about the health care options.
7. CMS must withdraw the regulation because its listing of exempt
populations is inconsistent with the Medicaid Act.
In the DRA, Congress listed ?TANF and section 1396u-1 parents? as populations
excluded from mandatory enrollment. However, the text of the exclusion only describes
individuals ?who qualify for medical assistance on the basis of eligibility to receive
assistance under a State plan funded under part A of title IV (as in effect on or after the
welfare reform effective date ? [July 16, 1996].? DRA, § 6044 (Emphasis added). After
July 16, 1996, AFDC was replaced by TANF in title IV-A, and there is no automatic
qualification for Medicaid on the basis of title IV-A eligibility. Cf. 42 U.S.C. § 1396u-1
(treating individuals as automatically eligible for Medicaid if they meet the IV ?A
requirements in effect as of July 16, 1996). Thus, the statute could be read to create a
null set and to allow states to mandatorily enroll individuals eligible under section 1396-
1. From the title of the provision, however, it is clear that Congress intended to exempt
both TANF parents and parents eligible through 42 U.S.C. § 1396u-1. The current
regulation parrots the statutory language and, thus, is inadequate.
CMS also needs to withdraw the regulation so that it can consider how states
should apply the benchmark option to American Indian/Alaska Native (AI/AN)
populations. Previous comments have described the problems with requiring AI/AN
populations to enroll in benchmark plans. See, e.g., 73 Fed. Reg. 73,700-02. While
Congress did not exempt AI/AN populations from benchmark enrollment, CHIPRA
amended the benchmark provision to narrow the Medicaid provisions that states can
ignore. Because 42 U.S.C §§ 1396a(a)(4) and 1396a(a)(19) are not directly contrary to
the benchmark provision, they cannot be ignored, and these provisions authorize CMS
to implement policies to assure effective operation of Medicaid in the best interests of
recipients, in this case AI/AN populations. Importantly, the American Recovery and
Reinvestment Act (ARRA), § 5006, established new protections for Indians who receive
Medicaid and CHIP services to, among other things, improve timely access to care and
provider choice. These later-enacted provisions must be considered when
promulgating benchmark regulations. Moreover, ARRA requires the Secretary of DHHS
to establish and maintain a Tribal Technical Advisory Group (TTAG) within CMS. See
ARRA, § 5600(e)(1). The regulations should be revised in consultation with the TTAG.
8. The regulations should be withdrawn and revised in conjunction with
the re-promulgation of the cost sharing regulations.
CMS is concurrently reviewing the Premiums and Cost Sharing Final Rule, 73
Fed. Reg. 71, 828. The benchmark regulations should be withdrawn so that the two
regulations can be considered and revised in tandem. Decisions regarding cost sharing
and premium requirements will affect benchmark provisions on a range of issues, from
actuarial soundness to voluntary enrollment.
Conclusion
We strongly urge CMS to permanently withdraw the current benchmark
regulations and to rewrite and promulgate them so that they are consistent with
CHIPRA, ARRA, EPSDT, and the ADA. We appreciate your consideration of these
comments. If you have questions, please contact Jane Perkins at (919) 968-6308.
Sincerely,
National Health Law Program
By: /s/Jane Perkins_
Jane Perkins
Legal Director
