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 low-income 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We ask that these regulations be permanently withdrawn and new regulations be issued, for the following reasons: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.
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