NHeLP Comments on Proposed Regulations Governing Benchmark Plans

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, 
 We ask that these regulations be permanently withdrawn and new 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. 
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. 
National Health Law Program 
By: /s/Jane Perkins_ 
Jane Perkins 
Legal Director

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