Docstoc

Department of Health and Human Services

Document Sample
Department of Health and Human Services Powered By Docstoc
					                                                                                                                                   Friday,
                                                                                                                                   April 30, 2010




                                                                                                                                   Part III

                                                                                                                                   Department of
                                                                                                                                   Health and Human
                                                                                                                                   Services
                                                                                                                                   Centers for Medicare & Medicaid Services

                                                                                                                                   42 CFR Part 440
                                                                                                                                   Medicaid Program; State Flexibility for
                                                                                                                                   Medicaid Benefit Packages; Final Rule
wwoods2 on DSKDVH8Z91PROD with RULES3




                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00001   Fmt 4717   Sfmt 4717   E:\FR\FM\30APR3.SGM   30APR3
                                             23068                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             DEPARTMENT OF HEALTH AND                                published an interim final rule with                   complex and presented numerous
                                             HUMAN SERVICES                                          comment period (74 FR 5808) on                         policy issues which require extensive
                                                                                                     February 2, 2009 in the Federal Register               consultation, review and analysis.
                                             Centers for Medicare & Medicaid                         to temporarily delay for 60 days the                   Additionally, because both CHIPRA and
                                             Services                                                effective date of the December 3, 2008                 ARRA contain provisions that impact
                                                                                                     rule entitled, ‘‘Medicaid Program; State               the American Indian and Alaska Native
                                             42 CFR Part 440                                         Flexibility for Medicaid Benefit                       community, we stated that the
                                                                                                     Packages.’’ The February 2, 2009 interim               development of the final rule required
                                             [CMS–2232–F4]
                                                                                                     final rule also reopened the comment                   collaboration with other HHS agencies
                                             RIN 0938–AP72                                           period on the policies set out in the                  and the Tribal governments. We
                                                                                                     December 3, 2008 rule. We received                     believed that this time period would
                                             Medicaid Program; State Flexibility for                 nine timely items of correspondence in                 allow sufficient time to further consider
                                             Medicaid Benefit Packages                               response to the February 2, 2009 interim               public comments, analyze the impact of
                                             AGENCY: Centers for Medicare &
                                                                                                     final rule.                                            the revisions on affected stakeholders,
                                                                                                        On April 3, 2009, we published a                    and develop appropriate revisions to the
                                             Medicaid Services (CMS), HHS.
                                                                                                     second interim final rule (74 FR 15221)                regulation.
                                             ACTION: Final rule.                                     in the Federal Register effectively                       We received one timely item of
                                             SUMMARY: This rule revises the final rule
                                                                                                     delaying implementation of the                         correspondence in response to the
                                                                                                     December 3, 2008 rule until December                   October 30, 2009 proposed rule. The
                                             published on December 3, 2008 to
                                                                                                     31, 2009. The second interim final rule                comment did not directly address our
                                             implement provisions of section 6044 of
                                                                                                     was published in order to allow time to                proposal to delay the effective date of
                                             the Deficit Reduction Act of 2005,
                                                                                                     incorporate provisions of the Children’s               the December 3, 2008 rule until July 1,
                                             which amends the Social Security Act
                                                                                                     Health Insurance Program                               2010. The comment was limited to the
                                             by adding a new section 1937 related to
                                                                                                     Reauthorization Act (CHIPRA) of 2009                   exemption of the benchmark and bench-
                                             the coverage of medical assistance
                                                                                                     (Pub. L. 111–3) enacted on February 4,                 mark equivalent packages from the
                                             under approved State plans. That rule
                                                                                                     2009, which corrected language in the                  assurance of transportation
                                             provides States increased flexibility
                                                                                                     DRA as if these amendments were                        requirements. Because the comment was
                                             under an approved State plan to define
                                                                                                     included in the DRA, and subsequently                  outside the scope of the proposed rule
                                             the scope of covered medical assistance
                                                                                                     amended section 1937 of the Act ‘‘State                on the delay of the effective date of the
                                             by offering coverage of benchmark or                    Flexibility for Medicaid Benefit                       December 3, 2008 rule, but instead
                                             benchmark-equivalent benefit packages                   Packages’’. This delay also allowed for                addresses the issue of revisions that are
                                             to certain Medicaid-eligible individuals.               sufficient time to fully consider all of               needed to comply with statutory
                                             In addition, this final rule responds to                the public comments received on this                   changes, we have addressed the
                                             public comments on the February 22,                     regulation. In response to the April 3,                comment in the revisions to the final
                                             2008 proposed rule and comments                         2009 interim final rule with a 30-day                  rule.
                                             received in response to rules published                 comment period, we received seven                         On November 30, 2009, we published
                                             subsequently that delayed the effective                 timely items of correspondence.                        a final rule in the Federal Register (74
                                             date of the December 3, 2008 final rule                    Upon further review and                             FR 62501) delaying the effective date of
                                             until July 1, 2010.                                     consideration of the new provisions of                 the December 3, 2008 final rule until
                                             DATES: Effective Date: These regulations                the American Recovery and                              July 1, 2010.
                                             are effective on July 1, 2010.                          Reinvestment Act (ARRA) of 2009 (Pub.
                                                                                                                                                            B. General Provisions
                                             FOR FURTHER INFORMATION CONTACT: Fran                   L. 111–5), enacted on February 17,
                                             Crystal, (410) 786–1195.                                2009), CHIPRA, and the public                             Under title XIX of the Act, the
                                                                                                     comments received during the reopened                  Secretary is authorized to provide funds
                                             SUPPLEMENTARY INFORMATION:
                                                                                                     comment period, we believed it                         to assist States in furnishing medical
                                             I. Background                                           necessary to revise a substantial portion              assistance to needy individuals, whose
                                                                                                     of the December 3, 2008 rule. Therefore,               income and resources are insufficient to
                                             A. Regulatory History
                                                                                                     on October 30, 2009, we published a                    meet the costs of necessary medical
                                                On December 3, 2008, we published                    proposed rule in the Federal Register                  services, including families with
                                             a final rule in the Federal Register                    (74 FR 56151) to solicit public                        dependent children and individuals
                                             entitled ‘‘Medicaid Program; State                      comments on further delaying the                       who are aged, blind, or disabled. To be
                                             Flexibility for Medicaid Benefit                        effective date of the December 3, 2008                 eligible for funds under this program,
                                             Packages’’ (73 FR 73694), hereafter                     rule until July 1, 2010. We proposed to                States must submit a State plan, which
                                             referred to as the December 3, 2008 rule.               further delay the effective date of the                must be approved by the Secretary.
                                             The December 2008 rule was to                           December 3, 2008 rule from December                    Programs under title XIX are jointly
                                             implement provisions of section 6044 of                 31, 2009 to July 1, 2010 to allow us                   financed by Federal and State
                                             the Deficit Reduction Act (DRA) of                      sufficient time to revise a substantial                governments. Within broad Federal
                                             2005, (Pub. L. 109–171), enacted on                     portion of the final rule based on our                 guidelines, each State determines the
                                             February 8, 2006, which amends the                      review and consideration of the new                    design of its program, eligible groups,
                                             Social Security Act (the Act) by adding                 provisions of CHIPRA, ARRA, and the                    benefit packages, payment levels for
                                             a new section 1937 related to the                       public comments received during the                    coverage and administrative and
                                             coverage of medical assistance under                    reopened comment periods. To allow                     operating procedures.
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             approved State plans.                                   time to make these revisions, the                         Before the passage of the DRA, States
                                                Subsequent to the publication of the                 Department determined that several                     were required to offer at minimum a
                                             December 3, 2008 rule, and in                           more months were needed to fully                       standard benefit package to eligible
                                             accordance with the memorandum of                       consider necessary changes to the rule.                populations identified in section
                                             January 20, 2009 from the Assistant to                     In the proposed rule, we noted that                 1902(a)(10)(A) of the Act (with some
                                             the President and the Chief of Staff,                   the comments received during the                       specific exceptions, for example, for
                                             entitled ‘‘Regulatory Review,’’ we                      reopened comment periods were                          certain pregnant women, who could be


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00002   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                         23069

                                             limited to pregnancy-related services).                 provided through a benchmark or                        State plan to define the scope of covered
                                             Under section 1902(a)(10)(A) of the Act,                benchmark-equivalent plan and/or as an                 medical assistance by offering coverage
                                             this standard benefit package had to                    additional benefit to those plans under                of benchmark or benchmark-equivalent
                                             include certain specific benefits                       section 1937 of the Act.                               benefit packages to certain Medicaid-
                                             identified in the definition of ‘‘medical                  Section 611(a)(1)(A)(i) of CHIPRA                   eligible individuals. For a complete and
                                             assistance’’ at section 1905(a) of the Act.             changed the ‘‘Notwithstanding any other                full description of the States’ Medicaid
                                             These identified benefits include                       provision of this title * * *’’ language in            Benefit Packages provisions as required
                                             inpatient and outpatient hospital                       section 1937(a)(1)(A) of the Act to                    by the DRA, see the February 2008 State
                                             services, physician services, medical                   ‘‘Notwithstanding section 1902(a)(1)                   Flexibility for Medicaid Benefit
                                             and surgical services furnished by a                    (relating to statewideness), section                   Packages proposed rule. In the February
                                             dentist, rural health clinic services,                  1902(a)(10)(B) (relating to                            2008 proposed rule, we proposed to add
                                             federally qualified health center                       comparability) and any other provision                 a new subpart C beginning with
                                             services, laboratory and X-ray services,                of this title which would be directly                  § 440.300 as follows:
                                             nursing facility services, early and                    contrary to the authority under this
                                                                                                     section and subject to [subparagraph]                  A. Subpart C—Benchmark Packages:
                                             periodic screening, diagnostic and
                                                                                                     (E)’’. One effect of this CHIPRA change                General Provisions § 440.300, § 440.305,
                                             treatment (EPSDT)services for
                                                                                                     is to clarify the requirement, under 42                and § 440.310 Basis, Scope, and
                                             individuals under age 21, family
                                                                                                     CFR 431.53 and section 1902(a)(4) of the               Applicability
                                             planning services and supplies to
                                             individuals of child-bearing age, nurse-                Act, to assure transportation for                         At proposed § 440.300 (Basis),
                                             midwife services, certified pediatric                   Medicaid beneficiaries in order for them               § 440.305 (Scope), and § 440.310
                                             nurse practitioner, and certified family                to have access to covered State plan                   (Applicability), the regulations would
                                             nurse practitioner services. Under                      services is applicable, regardless of                  reflect the statutory authority for States
                                             section 1902(a)(10)(D) of the Act, the                  whether beneficiaries are or are not                   to provide medical assistance to
                                             standard benefit package is also                        enrolled in benchmark or benchmark-                    individuals, within one or more groups
                                             required to include home health                         equivalent plans.                                      of Medicaid eligible individuals
                                             services.                                                  These two sections in CHIPRA affect                 specified by the State, through
                                                Section 6044 of the DRA amended the                  the implementation of benchmark and                    enrollment in benchmark coverage or
                                             Act by adding a new section 1937 that                   benchmark-equivalent plans and thus                    benchmark-equivalent coverage. A State
                                             allows States to amend their Medicaid                   the ‘‘Analysis of and Responses to                     may only require that individuals obtain
                                             State plans to provide for the use of                   Public Comments’’ in section III of this               benefits by enrolling in that coverage if
                                             benefit packages other than the standard                final rule, as well as the regulation,                 they are a ‘‘full benefit eligible’’ whose
                                             benefit package, namely benchmark                       reflect these changes.                                 eligibility is based on an eligibility
                                             benefit packages or benchmark-                             Section 611(a)(2) of CHIPRA changed                 category under section 1905(a) of the
                                             equivalent packages, for certain                        the heading of section 1937(a)(1)(C) of                Act that would have been covered under
                                             populations. The statute delineates what                the Act to replace the term ‘‘Wrap-                    the State’s plan on or before February 8,
                                             benefit packages qualify as benchmark                   Around’’ with ‘‘Additional’’ and to                    2006, and are not within exempted
                                             packages and what would constitute a                    accordingly strike the term ‘‘wrap-                    categories under the statute. The
                                             benchmark-equivalent package. The                       around’’ in the text of section                        proposed regulatory definition of full
                                             statute also specifies those exempt                     1937(a)(1)(C) of the Act.                              benefit eligible individuals would
                                             populations that may not be required to                    Section 611(b) of CHIPRA clarifies the              include individuals who would
                                             enroll in a benchmark coverage plan. To                 reference to children receiving foster                 otherwise be eligible to receive the
                                             be eligible for funds under this new                    care under section 1937(a)(2)(B)(viii) to              standard full Medicaid benefit package
                                             provision, States must submit a State                   apply to individuals receiving ‘‘child                 under the approved Medicaid State
                                             plan amendment, which must be                           welfare services,’’ not ‘‘aid’’ or                     plan, but would not include individuals
                                             approved by the Secretary. On March                     ‘‘assistance’’.                                        who are within the statutory
                                             31, 2006, we issued a State Medicaid                       Section 611(c) of CHIPRA requires the               exemptions, who are determined
                                             Director letter providing guidance on                   Secretary to post on the CMS Web site                  eligible by the State for medical
                                             the implementation of section 6044 of                   and publish in the Federal Register,                   assistance under section 1902(a)(10)(C)
                                             the DRA.                                                with respect to benchmark and                          of the Act or by reason of section 1902(f)
                                                                                                     benchmark-equivalent plans approved                    of the Act, or who are otherwise eligible
                                             C. CHIPRA Technical Corrections                         by the Secretary, those provisions of                  based on a reduction of income due to
                                               On February 4, 2009, CHIPRA was                       title XIX of the Act which were                        costs incurred for medical or other
                                             enacted. Section 611 of CHIPRA made                     determined by the Secretary as not                     remedial care (other medically needy
                                             technical corrections to the Benchmark                  applicable to the State’s benchmark                    and spend-down populations).
                                             Benefit provisions in section 1937 of the               and/or benchmark-equivalent plan, as
                                             Act, which were originally established                  well as the reason for such                            B. Section 440.315 Exempt Individuals
                                             under the DRA. The CHIPRA technical                     determinations.                                          Proposed § 440.315 would reflect
                                             correction changes take effect as if                                                                           statutory limitations on mandatory
                                             included in the DRA.                                    II. Provisions of the Proposed
                                                                                                                                                            enrollment of specified categories of
                                               Section 611(a)(1)(C) and section                      Regulations
                                                                                                                                                            individuals. A State may not require
                                             611(a)(3) of CHIPRA require States to                      We published a proposed rule in the                 enrollment in a benchmark or
                                             assure that children under the age of 21,               Federal Register on February 22, 2008                  benchmark-equivalent benefit plan by
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             rather than those under 19 as originally                (73 FR 9714) that implemented the                      the following individuals:
                                             specified in the DRA, who are included                  provisions of the DRA of 2005, which                     • An individual who is a pregnant
                                             in benchmark or benchmark-equivalent                    amends the Act by adding a new section                 woman who is required to be covered
                                             plans, have access to full EPSDT                        1937 related to the coverage of medical                under the State plan under section
                                             services (that is, those found in sections              assistance under approved State plans.                 1902(a)(10)(A)(i) of the Act.
                                             1905(a)(4)(B), 1905(r), and 1902(a)(43) of              Under this new provision, States have                    • An individual who qualifies for
                                             the Act). These EPSDT services may be                   increased flexibility under an approved                medical assistance under the State plan


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00003   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23070                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             on the basis of being blind or disabled                   • An individual who is a woman                       individual of the benefits available
                                             (or being treated as being blind or                     receiving medical assistance by virtue of              under the benchmark or benchmark-
                                             disabled) without regard to whether the                 the application of sections                            equivalent benefit package and provide
                                             individual is eligible for SSI benefits                 1902(a)(10)(ii)(XVIII) and 1902(a) of the              a comparison of how they differ from
                                             under title XVI on the basis of being                   Act. This provision relates to those                   the benefits available under the
                                             blind or disabled and including an                      individuals who are eligible for                       standard full Medicaid program. The
                                             individual who is eligible for medical                  Medicaid based on the breast or cervical               State would document in the
                                             assistance on the basis of section                      cancer eligibility provisions.                         individual’s eligibility file that the
                                             1902(e)(3) of the Act.                                    • An individual who qualifies for                    individual was informed in accordance
                                                • An individual who is entitled to                   medical assistance as a TB-infected                    with this paragraph and voluntarily
                                             benefits under any part of Medicare.                    individual on the basis of section                     chose to enroll in the benchmark or
                                                • An individual who is terminally ill                1902(a)(10)(A)(ii)(XII) of the Act.                    benchmark-equivalent benefit package.
                                             and is receiving benefits for hospice                     • Individuals who are only eligible                    At proposed § 440.325, a State would
                                             care under title XIX.                                   for Medicaid coverage of the care and                  have the option to choose the
                                                • An individual who is an inpatient                  services necessary for the treatment of                benchmark or benchmark-equivalent
                                             in a hospital, nursing facility,                        an emergency medical condition in                      coverage packages offered under the
                                             intermediate care facility for the                      accordance with section 1903(v) of the                 State’s Medicaid plan. A State may
                                             mentally retarded, or other medical                     Act.                                                   select one or all of the benchmark plans
                                             institution, and is required, as a                                                                             described in § 440.330 or establish
                                             condition of receiving services in such                 C. Section 440.320 State Plan
                                                                                                     Requirements: Optional Enrollment for                  benchmark-equivalent plans described
                                             institution under the State plan, to                                                                           in § 440.335, respectively.
                                             spend for costs of medical care all but                 Exempt Individuals
                                             a minimal amount of the individual’s                       At proposed § 440.320, we would                     E. Section 440.330 Benchmark Health
                                             income required for personal needs.                     allow States to offer exempt individuals               Benefits Coverage
                                                • An individual who is medically                     specified in § 440.315 the option to                     At proposed § 440.330, benchmark
                                             frail or otherwise an individual with                   enroll into a benchmark or benchmark-                  coverage is described as any one of the
                                             special medical needs (as described by                  equivalent benefit plan. The State                     following:
                                             the Secretary in section 440.315(f)). For               would identify in its State plan the                     • Federal Employees Health Benefit
                                             purposes of this section, we proposed                   exempt groups for which this coverage                  Plan Equivalent Coverage (FEHBP—
                                             that individuals with special needs                     is available. There may be instances in                Equivalent Health Insurance Coverage).
                                             includes those groups defined by                        which an exempt individual may                         A benefit plan equivalent to the
                                             Federal regulations at § 438.50(d)(1) and               benefit from enrolling in a benchmark or               standard Blue Cross/Blue Shield
                                             § 438.50(d)(3) of the managed care                      benchmark-equivalent benefit package.                  preferred provider option service benefit
                                             regulations (that is, dual eligibles and                States would be permitted to elect in the              plan that is described in and offered to
                                             certain children under age 19 who are                   State plan to offer exempt individuals a               Federal employees under 5 U.S.C.
                                             eligible for SSI; eligible under section                benchmark or benchmark-equivalent                      8903(1).
                                             1902(e)(3) of the Act, TEFRA children;                  package, but States may not require                      • State employee coverage. A health
                                             children in foster care or other out of                 them to enroll in one. For example, in                 benefits plan that is offered and
                                             home placement; or children receiving                   some States the State employee                         generally available to State employees
                                             foster care or adoption assistance). We                 benchmark coverage may be more                         in the State involved.
                                             did not propose a definition for                        generous than the State Medicaid plan.                   • Health Maintenance Organization
                                             medically frail populations but we                      Secretary-approved coverage may offer                  (HMO) plan. A health insurance plan
                                             invited public comments to assist us in                 the opportunity for disabled individuals               that is offered through an HMO (as
                                             defining this term in the final                         to obtain integrated coverage for acute                defined in section 2791(b)(3) of the
                                             regulation.                                             care and community-based long-term                     Public Health Service Act) that has the
                                                • An individual who qualifies for                    care services. Additionally, States may                largest insured commercial, non-
                                             Medicaid based on medical condition                     be able to improve the integration of                  Medicaid enrollment in the State.
                                             for medical assistance for long-term care               disease management programs to                           • Secretary-approved coverage. Any
                                             services described in section                           provide better coordinated care that                   other health benefits coverage that the
                                             1917(c)(1)(C) of the Act.                               targets the specific needs of individuals              Secretary determines, upon application
                                                • An individual who receives aid or                  with special health needs.                             by a State, provides appropriate
                                             assistance under part B of title IV for                                                                        coverage for the population proposed to
                                             children in foster care or an individual                D. Section 440.325 State Plan                          be provided that coverage. As proposed,
                                             with respect to whom adoption or foster                 Requirements: Coverage and Benefits                    States wishing to opt for Secretarial-
                                             care assistance is made available under                   At proposed § 440.325, we set forth                  approved coverage should submit a full
                                             part E of title IV, without regard to age.              the conditions under which a State may                 description of the proposed coverage
                                                • An individual who qualifies for                    offer enrollment to exempt individuals                 and include a benefit-by-benefit
                                             medical assistance on the basis of                      specified in § 440.315. When a State                   comparison of the proposed plan to one
                                             eligibility to receive assistance under a               offers exempt individuals the option to                or more of the three benchmark plans
                                             State plan funded under part A of title                 enroll in a benchmark or benchmark-                    specified above or to the State’s
                                             IV (as in effect on or after the welfare                equivalent benefit package, the State                  standard full Medicaid coverage
                                             reform effective date defined in section                would inform the individuals that                      package under section 1905(a) of the
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             1931(i) of the Act). This provision                     enrollment is voluntary and that the                   Act, as well as a full description of the
                                             includes those individuals who qualify                  individual may disenroll from the                      population that would be receiving the
                                             for Medicaid solely on the basis of                     benchmark or benchmark-equivalent                      coverage. In addition, the State should
                                             qualification under the Temporary                       benefit package at any time and regain                 submit any other information that
                                             Assistance for Needy Families (TANF)                    immediate eligibility for the standard                 would be relevant to a determination
                                             rules (that is, the State links Medicaid                full Medicaid program under the State                  that the proposed health benefits
                                             eligibility to TANF eligibility).                       plan. The State would inform the                       coverage would be appropriate for the


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00004   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                       23071

                                             proposed population. The scope of a                     of the following four categories of                    requested by CMS, to replicate the
                                             Secretary approved health benefits                      services: Prescription drugs; mental                   State’s result.
                                             package will be limited to benefits                     health services; vision services; and
                                                                                                                                                            H. Section 440.345 EPSDT Services
                                             within the scope of the categories                      hearing services; then the actuarial
                                                                                                                                                            Requirement
                                             available under a benchmark coverage                    value of the coverage for each of these
                                             package or the standard full Medicaid                   categories of service in the benchmark-                  At § 440.345, we proposed to require
                                             coverage package under section 1905(a)                  equivalent coverage package must be at                 States to make available EPSDT services
                                             of the Act.                                             least 75 percent of the actuarial value of             as defined in section 1905(r) of the Act
                                               A State may select one or more                        the coverage for that category of service              that are medically necessary for those
                                             benchmark coverage plan options. The                    in the benchmark plan used for                         individuals under age 19 who are
                                             State may also specify the benchmark                    comparison by the State.                               covered under the State plan. We
                                             plan for any specific individual. For                     If the benchmark coverage package                    expected that most benchmark or
                                             example, one individual may be                          does not cover one of the four categories              benchmark-equivalent plans will offer
                                             enrolled in the FEHBP-equivalent and                    of services mentioned above, then the                  the majority of EPSDT services. To the
                                             another may be enrolled into State                      benchmark-equivalent coverage package                  extent that any medically necessary
                                             Employee Coverage at the option of the                  may, but is not required to, include                   EPSDT services are not covered through
                                             State.                                                  coverage for that category of service.                 the benchmark or benchmark-equivalent
                                                                                                                                                            plan, States are required to supplement
                                             F. Section 440.335 Benchmark-                           G. Section 440.340 Actuarial Report                    the benchmark or benchmark-equivalent
                                             Equivalent Health Benefits Coverage                     for Benchmark-Equivalent Health                        plan in order to ensure access to these
                                               At proposed § 440.335, we proposed                    Benefit Coverage                                       services. As proposed, individuals
                                             to provide that if a State designs or                     In accordance with 1937(a)(3) of the                 mandated into a benchmark or
                                             selects a benchmark plan other than                     Act, at § 440.340, we proposed to                      benchmark-equivalent plan and entitled
                                             those specified in § 440.330, the State                 require a State, as a condition of                     to have access to EPSDT services cannot
                                             must provide coverage that is equivalent                approval of benchmark-equivalent                       disenroll from the benchmark or
                                             to benchmark coverage. Coverage that                    coverage, to provide an actuarial report,              benchmark-equivalent plan just to
                                             meets the following requirements will                   with an actuarial opinion that the                     receive these services. While, as
                                             be considered to be benchmark-                          benchmark-equivalent coverage meets                    proposed, individuals are required to
                                             equivalent coverage:                                    the actuarial requirements of § 440.335.               have access to such medically necessary
                                               • Required Coverage. Benchmark-                         At § 440.340, we proposed to require
                                                                                                                                                            services first under the benchmark or
                                             equivalent coverage includes benefits                                                                          benchmark-equivalent plan, the State
                                                                                                     the actuarial report to obtain approval
                                             for items and services within each of the                                                                      may provide wrap-around or additional
                                                                                                     for benchmark-equivalent health benefit
                                             following categories of basic services                                                                         coverage for medically necessary
                                                                                                     coverage and to meet all the provisions
                                             and must include coverage for the                                                                              services not covered under such plan.
                                                                                                     of the statute. The actuarial report must
                                             following categories of basic services:                                                                        Any wrap-around benefits must be
                                                                                                     state the following:
                                               + Inpatient and outpatient hospital                                                                          sufficient so that, in combination with
                                                                                                       • The actuary issuing the opinion is                 the benchmark or benchmark-equivalent
                                             services.                                               a member of the American Academy of
                                               + Physicians’ surgical and medical                                                                           benefits package, an individual would
                                                                                                     Actuaries (AAA) (and meets Academy                     have coverage for his or her medically
                                             services.
                                                                                                     standards for issuing an opinion).                     necessary services consistent with the
                                               + Laboratory and x-ray services.
                                               + ‘‘Well-baby’’ and ‘‘well-child’’ care,                • The actuary used generally                         requirements under section 1905(r) of
                                             including age-appropriate                               accepted actuarial principles and                      the Act. The State plan would include
                                             immunizations.                                          methodologies of the AAA, standard                     a description of how wrap-around
                                               + Other appropriate preventive                        utilization and price factors and a                    benefits or additional services will be
                                             services, as designated by the Secretary.               standardized population representative                 provided to ensure that these
                                               • Aggregate actuarial value equivalent                of the population involved.                            individuals have access to full EPSDT
                                             to benchmark coverage. Benchmark-                         • The same principles and factors                    services under section 1905(r) of the
                                             equivalent coverage must have an                        were used in analyzing the value of                    Act.
                                             aggregate actuarial value, determined in                different coverage (or categories of                     In addition, as proposed, individuals
                                             accordance with proposed § 440.340,                     services) without taking into account                  would need to first seek coverage of
                                             that is at least equivalent to coverage                 differences in coverage based on the                   EPSDT services through the benchmark
                                             under one of the benchmark packages                     method of delivery or means of cost                    or benchmark-equivalent plan before
                                             outlined in § 440.330.                                  control or utilization used.                           seeking coverage of such services
                                               • Additional coverage. In addition to                   • The report should also state if the                through other options established by the
                                             the categories of services set forth above,             analysis took into account the State’s                 State for receiving wrap-around benefits
                                             benchmark-equivalent coverage may                       ability to reduce benefits because of the              under section 1937 of the Act.
                                             include coverage for any additional                     increase in actuarial value of health
                                             services included in the benchmark                      benefits coverage offered under the State              I. Section 440.350 Employer
                                             plan or described in section 1905(a) of                 plan that results from the limitations on              Sponsored Insurance Health Plans
                                             the Act.                                                cost sharing (with the exception of                       At § 440.350, we proposed that the
                                               • Application of actuarial value for                  premiums) under that coverage.                         use of benchmark or benchmark-
                                             benchmark-equivalent coverage that                        • The actuary preparing the opinion                  equivalent benefit coverage would be at
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             includes prescription drugs, mental                     must select and specify the standardized               the discretion of the State and may be
                                             health, vision, and hearing services.                   set of utilization and pricing factors as              used in conjunction with employer
                                             Where the benchmark coverage package                    well as the standardized population.                   sponsored health plans as a coverage
                                             used by the State as a basis for                          • The actuary preparing the opinion                  option for individuals with access to
                                             comparison in establishing the aggregate                must provide sufficient detail to explain              private health insurance. Additionally,
                                             actuarial value of the benchmark-                       the basis of the methodologies used to                 the use of benchmark or benchmark-
                                             equivalent package includes any or all                  estimate the actuarial value or, if                    equivalent coverage may be used for


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00005   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23072                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             individuals with access to private health               M. Section 440.370           Cost Effectiveness        III. Analysis of and Responses to Public
                                             insurance coverage. For example, if an                                                                         Comments
                                             individual has access to employer                         At § 440.370, we proposed that
                                             sponsored coverage and that coverage is                 benchmark or benchmark-equivalent                         In response to the February 2008
                                                                                                     coverage and any additional benefits                   proposed rule, we received over 1,100
                                             determined by the State to be
                                                                                                     must be provided in accordance with                    timely items of correspondence. In
                                             benchmark or benchmark-equivalent, a
                                                                                                     Federal upper payment limits,                          response to the February 2, 2009 interim
                                             State may, at its option, provide
                                                                                                     procurement requirements and other                     final rule with a 30-day comment period
                                             premium payments on behalf of the
                                                                                                     economy and efficiency principles that                 (the first temporary delay of the
                                             individual to purchase the employer                                                                            December 3, 2008 final rule), we
                                                                                                     would otherwise be applicable to the
                                             coverage. Additionally, a State could                                                                          received nine timely items of
                                                                                                     services or delivery system through
                                             create a benchmark or benchmark-                                                                               correspondence. In response to the
                                                                                                     which the coverage and benefits are
                                             equivalent plan combining employer                                                                             April 3, 2009 interim final rule with a
                                                                                                     obtained.
                                             sponsored insurance and wrap-around                                                                            30-day comment period (the second
                                             benefits to that employer sponsored                     N. Section 440.375           Comparability             temporary delay of the December 3,
                                             insurance benefit package. The                                                                                 2008 final rule), we received seven
                                             premium payments would be                                 At § 440.375, we proposed that a State
                                                                                                                                                            timely items of correspondence. In
                                             considered medical assistance and the                   may at its option amend its State plan
                                                                                                                                                            response to the October 30, 2009
                                             State could require the non-exempt                      to provide benchmark or benchmark-
                                                                                                                                                            proposed rule on delaying the effective
                                             individual to enroll in the group health                equivalent coverage to individuals
                                                                                                                                                            date of the final rule to July 1, 2010, we
                                             plan.                                                   without regard to comparability.
                                                                                                                                                            received one timely item of
                                                                                                     O. Section 440.380           Statewideness             correspondence.
                                             J. Section 440.355        Payment of
                                             Premiums                                                                                                          The majority of the comments
                                                                                                       At § 440.380, we proposed that a State
                                                                                                                                                            received on the proposed rule
                                                At § 440.355, we proposed that                       may at its option amend its State plan
                                                                                                                                                            represented transportation providers,
                                             payment of premiums by the State, net                   to provide benchmark or benchmark-
                                                                                                                                                            medical providers, and Medicaid
                                             of beneficiary contributions, to obtain                 equivalent coverage to individuals                     beneficiaries, particularly Medicaid
                                             benchmark or benchmark-equivalent                       without regard to statewideness.                       beneficiaries who rely on dialysis
                                             benefit coverage on behalf of                           P. Section 440.385           Freedom of Choice         treatments. Other comments represented
                                             beneficiaries under this section will be                                                                       State and local advocacy groups,
                                             treated as medical assistance under                        At § 440.385, we proposed that a State              national associations that represent
                                             section 1905(a) of the Act.                             may at its option amend its State plan                 various beneficiary sub-groups, State
                                                                                                     to provide benchmark or benchmark-                     Medicaid agency senior officials, and
                                             K. Section 440.360 State Plan                           equivalent coverage to individuals                     human services agencies. In this section,
                                             Requirement for Providing Additional                    without regard to freedom of choice.                   we provide a discussion of the public
                                             Wrap-Around Services                                    States may restrict individuals to                     comments we received on the February
                                                                                                     obtaining services from (or through)                   22, 2008 proposed rule, the February 2,
                                               At § 440.360, we proposed that a State
                                                                                                     selectively procured provider plans or                 2009 interim final rule with a 30-day
                                             may at its option provide additional
                                                                                                     practitioners that meet, accept, and                   comment period (the first temporary
                                             wrap-around services to the benchmark
                                                                                                     comply with reimbursement, quality                     delay of the December 3, 2008 final rule)
                                             or benchmark-equivalent plans. The
                                                                                                     and utilization standards under the                    and the April 2, 2009 final rule with a
                                             wrap-around services do not need to
                                                                                                     State Plan, to the extent that the                     30-day comment period (the second
                                             include all State plan services.
                                                                                                     restrictions imposed meet the following                temporary delay of the December 3,
                                             However, the State plan would be                        requirements:                                          2009 final rule), as well as the one
                                             required to describe the populations                                                                           comment that we received in response
                                             covered and the payment methodology                        (+) Do not discriminate among classes
                                                                                                     of providers on grounds unrelated to                   to our October 30, 2009 proposed rule
                                             for assuring those services. Such                                                                              delaying the effective date of the
                                             additional or wrap-around services must                 their demonstrated effectiveness and
                                                                                                     efficiency in providing the benchmark                  December 3, 2008 final rule, which
                                             be within the scope of categories of                                                                           addressed the issue of revisions
                                             services covered under the benchmark                    benefit package.
                                                                                                                                                            required to comply with statutory
                                             plan, or described in section 1905(a) of                   (+) Do not apply in emergency                       changes. Comments related to the
                                             the Act.                                                circumstances.                                         impact of this rule are addressed in the
                                             L. Section 440.365 Coverage of Rural                       (+) Require that all provider plans are             ‘‘Collection of Information
                                             Health Clinic and Federally Qualified                   paid on a timely basis in the same                     Requirements’’ section of this regulation.
                                             Health Center (FQHC) Services                           manner as health care practitioners                       Additionally, we published a
                                                                                                     must be paid under § 447.45 of the                     proposed rule in the Federal Register on
                                               At § 440.365, we proposed that a State                chapter.                                               February 22, 2008 (73 FR 9727) titled,
                                             that provides benchmark or benchmark-                                                                          ‘‘Medicaid Program: Premiums and Cost
                                                                                                     Q. Section 440.390           Assurance of
                                             equivalent coverage to individuals must                                                                        Sharing’’ (CMS–2244–P). Comments on
                                                                                                     Transportation
                                             assure that the individual has access,                                                                         CMS–2244–P were also due March 24,
                                             through that coverage or otherwise, to                     At § 440.390, we proposed that a State              2008 similar to this rule. Some
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             rural health clinic services and FQHC                   may at its option amend its State plan                 comments for CMS–2244–P were
                                             services as defined in subparagraphs (B)                to provide benchmark or benchmark-                     forwarded as comments to this rule
                                             and (C) of section 1905(a)(2) of the Act.               equivalent coverage to individuals                     (CMS–2232–P). Consistent with the
                                             Payment for these services must be                      without regard to the assurance of                     Administrative Procedures Act, CMS is
                                             made in accordance with the payment                     transportation to medically necessary                  not responding to those comments in
                                             provisions of section 1902(bb) of the                   services requirement specified in                      this regulation, but we addressed the
                                             Act.                                                    § 431.53.                                              issues raised by otherwise timely


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00006   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                          23073

                                             comments in our publication of CMS–                     statements delivered only to State                     and resource eligibility levels or
                                             2244–F.                                                 Medicaid Directors, a 30-day public                    methodologies, ages covered, etc. for a
                                                                                                     comment period is too short for                        group or category after February 8, 2006.
                                             A. General Comments
                                                                                                     meaningful public review, analysis, and
                                                Comments: A few commenters                                                                                  C. Section 440.305 Scope
                                                                                                     comment. Some commenters believe
                                             supported the proposed rule and a few                   that the 30-day comment period is                          Comment: Numerous commenters
                                             commenters strongly supported certain                   discouraging of full review and                        believed that offering benchmark and
                                             provisions of the December 3, 2008 rule.                consideration by States.                               benchmark-equivalent benefit packages
                                             However, most commenters oppose                            One commenter requests that the                     to certain Medicaid individuals will
                                             either the February 22, 2008 proposed                   public comment period be extended by                   deter those individuals, including
                                             rule or certain sections of the December                60 days for a total of a 90-day comment                children, from receiving appropriate
                                             3, 2008 rule. Many commenters are                       period. Additional time is needed to                   care. Commenters indicated that
                                             concerned that the benchmark or                         provide sufficient time for stakeholders               individuals with low incomes are likely
                                             benchmark-equivalent benefit packages                   to be able to adequately assess the                    to forego needed treatment if all
                                             are inadequate benefit packages for,                    potential effects of the proposed rule.                medically necessary services and
                                             among others, individuals with mental                      Response: As described in the                       transportation are not included in the
                                             illness, children with serious emotional                ‘‘Background’’ in section I of this                    benchmark program. Most commenters
                                             disturbance, the disabled and elderly,                  regulation under ‘‘Regulatory History,’’               believed that our most vulnerable
                                             individuals with end stage renal                        in section I.A. of this regulation a 30-               populations, those with chronic medical
                                             disease, and American Indians. Many of                  day public comment period on the                       needs, will be required to choose to
                                             the commenters believe that to enroll                   February 22, 2008 proposed rule was                    provide for their basic needs like food
                                             Medicaid beneficiaries in benchmark or                  provided and two additional 30-day                     and shelter rather than obtain necessary
                                             benchmark-equivalent benefit packages                   public comment periods were provided                   medical health care because of the rigor
                                             without the assurance of transportation                 on the December 3, 2008 rule. We                       created by following a private health
                                             could lead to poorer health outcomes,                   believe that these comment periods                     insurance model of benefits and the
                                             costlier care because individuals will be               allowed sufficient time for public                     need to provide their own method of
                                             forced into hospital emergency rooms,                   comment.                                               transportation.
                                             and shifts in costs to the Emergency                                                                               Response: The benchmark and
                                                                                                     B. Section 440.300 Basis                               benchmark-equivalent coverage was
                                             Medical Services.
                                                Response: We acknowledge and                            Comment: One commenter believed                     authorized by the statute. Under the
                                             appreciate the views of the commenters                  that the proposed limitations on                       statute, the benchmark flexibility is an
                                             who both supported and opposed the                      eligibility groups who can be provided                 option that States can choose to use in
                                             February 22, 2008 proposed rule and the                 alternative benefit packages are overly                redesigning their current Medicaid
                                             December 3, 2008 rule. Those who                        restrictive. The commenter suggested                   benefit program. It should be noted that
                                             opposed the rule generally raised                       that the rule should allow application to              as a result of the CHIPRA changes to the
                                             concerns about the underlying wisdom                    any eligibility category the State had the             DRA, this option is not as broad as it
                                             of the statutory provision at section                   option to implement on or before the                   had been and we have revised the
                                             1937 of the Act, which this final rule                  date of enactment of section 1937                      regulations to comply with CHIPRA by
                                             implements. CMS is charged with                         (February 8, 2006). The commenter                      stating that States must comply with all
                                             implementing the statute. We address                    reasoned that States are continually                   requirements of title XIX other than
                                             comments relating to restrictive                        adding and changing eligibility                        sections 1902(a)(1) and 1902(a)(10(B) of
                                             interpretations below in the discussion                 requirements and these program                         the Act, unless such requirement can be
                                             of specific proposed provisions that                    changes are inherent in Medicaid                       shown to be directly contrary to the
                                             arguably were not required by the                       programs. The commenter asserted that,                 authority under section 1937 of the Act.
                                             statutory provision.                                    if the rule is considered beneficial for               For example, under the CHIPRA
                                                Comment: Several commenters                          individuals in eligibility categories that             changes transportation is a required
                                             believe that the accelerated pace of the                existed before February 8, 2006, it is                 service and benchmark plans utilizing
                                             short comment period for the proposed                   logical to suppose it would also be                    managed care delivery systems must
                                             rule, given the broad implications, will                beneficial for those created after that                meet managed care rules.
                                             lead to a short-sighted, onerous rule that              date.                                                      Comment: Other commenters
                                             has dangerous health impacts for the                       Response: The language in section                   indicated that the DRA does not require
                                             poor. The proposed rule was issued in                   1937(a)(1)(B) of the Act specifies that                that States offer the same Medicaid
                                             the Federal Register on February 22,                    the State may only exercise the option                 benefits statewide, meaning States could
                                             2008. The deadline for submission of                    to offer benchmark or benchmark-                       design different benefit packages for
                                             comments was March 24, 2008. The                        equivalent coverage for an individual                  rural and urban areas. States may also
                                             commenters stated that other                            eligible under an eligibility category that            ‘‘tailor’’ packages for different
                                             rulemaking has taken a longer period                    had been established under the State                   populations, although the commenter
                                             and that given the impact of the                        plan on or before February 8, 2006. We                 acknowledges, certain groups are
                                             provisions, a longer time period is                     have interpreted this statutory term to                exempt from mandatory changes to their
                                             warranted.                                              mean any eligibility category listed                   Medicaid benefits package. In States
                                                Some commenters stated that the 30-                  under section 1905(a) of the Act. Thus,                where this has already been done, there
                                             day comment period in the proposed                      all individuals within a category                      have been some reports that the changes
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             rule was not sufficient for Tribes to                   covered or potentially covered under                   have been unsatisfactory. Several
                                             comment on a regulation that could                      the State’s Medicaid plan could be                     commenters believed that allowing
                                             potentially have a significant impact on                eligible to participate in a benchmark or              States to ‘‘tailor’’ benefit packages would
                                             Tribal communities.                                     benchmark-equivalent plan at the                       mean that individuals may not have
                                                Other commenters noted that while                    State’s option, unless specifically                    access to the services they need. Benefit
                                             the Department views the proposed rule                  excluded by statute, even when the                     packages designed outside the
                                             as merely formalizing its earlier policy                State makes modifications to the income                important consumer protections in


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00007   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23074                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             traditional Medicaid may fail to meet                   eliminate coverage for critical health                 environment and expand access to care
                                             beneficiaries’ needs, and will not save                 services places the health of Medicaid                 by leveraging existing benefit and
                                             money if these individuals experience                   beneficiaries with HIV/AIDS in serious                 coverage options to improve quality and
                                             significant unmet needs that escalate                   jeopardy.                                              coordination of care.
                                             into problems that require treatment in                    Response: The DRA created section                      States seeking to use benchmark and
                                             emergency rooms.                                        1937 in response to States’ desire for                 benchmark-equivalent plans to provide
                                                One commenter mentioned that                         more flexibility in designing their                    coverage for children and adults with
                                             private health plans, such as those listed              Medicaid programs and adopting benefit                 special medical needs, individuals with
                                             as benchmarks under the law,                            programs tailored to the needs of the                  HIV/AIDS, and long-term care and
                                             frequently have limited coverage of                     varied populations they serve. The DRA                 community-based service options, must
                                             mental health services. The commenter                   provides that States can provide                       design a benchmark benefit package that
                                             asserted that few cover any of the                      alternative benchmark or benchmark-                    is appropriate to meet the health care
                                             intensive community services that are                   equivalent benefit packages at their                   needs of the population being served,
                                             covered by Medicaid under the                           option; that is, States are not required to            including coverage that may be more
                                             rehabilitation category or the home and                 implement these provisions. We have                    generous than a State’s Medicaid plan.
                                             community-based services option. The                    incorporated elements in this regulation                  We think it is important to note that
                                             commenter noted that, under the DRA,                    that are designed to protect vulnerable                States are required to provide children
                                             these limited mental health benefits can                populations and to help assure that                    under the age of 21 with EPSDT services
                                             be further reduced by 25 percent of their               individuals enrolled in a benchmark                    either as an additional service and or as
                                             actuarial value. Other commenters                       benefit plan will have access to services              part of the benchmark or benchmark-
                                             expressed concern that the reliance on                  that are appropriate to their individual               equivalent benefit plan. States are
                                             commercial benefit plans is                             needs to the extent permitted by the                   required to inform families about how
                                             inappropriate for Medicaid individuals.                 statute.                                               and where to access these services
                                             Those commenters are concerned that                        To protect individuals with                         particularly if the benchmark or
                                             many private insurance plans do not                     disabilities we have included in this                  benchmark-equivalent benefit does not
                                             provide adequate mental health                          rule a basic minimum definition of                     identify the full range of EPSDT services
                                             services. Other commenters noted that                   medically frail and special medical                    needed by the beneficiary as being
                                             benchmark coverage is likely to prove                   needs to insure that people with                       covered. States must assure that these
                                             entirely inadequate for individuals who                 disabilities and special health care                   services are provided in the most
                                             need mental health services. The                        needs are not mandatorily enrolled in                  seamless way possible and the families
                                             commenters noted that children with                     benchmark benefit plans. Rather, they                  understand how to access such services
                                             serious mental and/or physical                          can only be voluntarily enrolled after                 through the Medicaid State plan.
                                             disorders often qualify for Medicaid on                 being fully informed of the differences                   Moreover, certain groups cannot be
                                             a basis of family income and are not, for               between the benchmark benefit plan                     included in a mandatory enrollment for
                                             various reasons, receiving Supplemental                 and the traditional State plan. We have                an alternative benefit package—among
                                             Security Income (SSI) benefits or                       added language at § 440.305(b)(2) that                 others, pregnant women, dual eligibles,
                                             otherwise recognized as children with                   requires States electing to offer                      terminally ill individuals receiving
                                             disabilities and would not be exempt                    benchmark benefit plans or wishing to                  hospice, inpatients in institutional
                                             from mandatory enrollment. In addition,                 substantively change an approved                       settings, and individuals who are
                                             the commenters noted that many low-                     benchmark benefit plan to provide                      medically frail or have special medical
                                             income parents on Medicaid have been                    advance public notice with an                          needs. These individuals may be offered
                                             found to have serious depression, which                 opportunity to comment. Before                         a choice to enroll and, in considering
                                             could not be adequately treated with a                  submitting to CMS a State plan                         the choice, must be provided a
                                             very limited mental health benefit.                     amendment to implement a benchmark                     comparison of benchmark benefits
                                                Similarly, many commenters believed                  benefit plan or an amendment to                        versus the traditional Medicaid State
                                             that the proposed rule has the potential                substantially modify the benefits or                   plan benefit. Their decision to enroll is
                                             to become the behavioral healthcare                     eligibility provisions of an approved                  voluntary and individuals must be
                                             Medicaid ‘‘Trojan horse’’: It appears                   benchmark benefit plan, the State must                 provided the opportunity to revert back
                                             harmless but it will reverse hard fought                first provide the public the opportunity               to traditional Medicaid at any time.
                                             progress won over years of struggle that                to review the proposed change and                         Comment: One commenter noted that
                                             brought about equitable, decent care for                comment on it.                                         the preamble language refers to meeting
                                             Medicaid-eligible individuals                              We acknowledge and agree with the                   the ‘‘* * * needs of today’s Medicaid
                                             experiencing mental illness or who have                 commenters on the importance of                        populations and the health care
                                             a developmental disability. The                         providing adequate mental health                       environment.’’ The commenter believed
                                             commenters asserted that, in the end,                   benefits and will be separately                        the preamble should describe these
                                             these rules will have costlier results and              addressing how post DRA-enactments,                    needs in some detail so that there is a
                                             not the desired economizing while also                  specifically the Paul Wellstone and Pete               shared understanding of the types of
                                             negatively impacting peoples’ lives,                    Domenici Mental Health Parity and                      needs this new flexibility is intended to
                                             their well-being and care, and our                      Addiction Equity Act of 2008 relate to                 address.
                                             society.                                                benchmark benefits.                                       Response: We agree that it is
                                                Another commenter believed that it is                   The new benefit option provides                     important to understand the needs of
                                             critical for beneficiaries with life-                   States with additional tools to provide                today’s Medicaid populations and the
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             threatening conditions such as HIV/                     care to maximize health outcomes for                   health care environment. Congress has
                                             AIDS to maintain access to the                          certain individuals. These tools may be                provided States with the flexibility to
                                             comprehensive range of medical and                      used in conjunction with other                         align Medicaid benefit packages for
                                             support services required to effectively                Medicaid and Children’s Health                         certain populations with commercial
                                             manage HIV disease. The commenter                       Insurance Program (CHIP) authorities to                insurance plans. States now have the
                                             stated that allowing States to ‘‘tailor’’               strategically align the Medicaid program               ability to provide additional services
                                             benefit packages in ways that essentially               with the current health care                           that are uniquely designed to meet the


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00008   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                         23075

                                             needs of targeted populations. For                      EPSDT services. Additionally, we                       population, we expect States to ensure
                                             example, individuals with asthma and                    expanded paragraph (b)(5) in § 440.335,                that alternative benefit packages
                                             chronic obstructive pulmonary disease                   which lists the mandatory services that                recognize the unique services offered by
                                             who reside in a certain area of the State               benchmark-equivalent plans must                        IHS and tribal providers, and the unique
                                             may be offered disease management                       provide, to include family planning                    health needs of the American Indians/
                                             services which are not otherwise                        services and supplies as a required                    Alaska Natives population. To ensure
                                             available under the traditional State                   preventive service.                                    this, section 5006 of ARRA requires
                                             plan to all individuals with asthma and                    Citizenship documentation                           States to consult with Indian Health
                                             chronic obstructive pulmonary disease.                  requirements and the rehabilitation and                Programs or Urban Indian Organizations
                                             A State may elect to provide                            case management requirements are not                   that furnish health care services on
                                             beneficiaries with incentives for healthy               part of this rule and we do not address                matters that are likely to have a direct
                                             behavior by offering additional services.               them here. This regulation implements                  effect on these health programs. It also
                                             For example, a State could offer certain                the statutory provisions of section 1937               requires that services provided to
                                             (enhanced) preventive services not                      of the Act. However, it should be noted                Indians through managed care
                                             available under the regular State plan,                 that the August 17, 2007 State Health                  organizations provide access to IHS
                                             such as smoking cessation counseling or                 Officials letter on CHIP eligibility levels            providers.
                                             nutritional/dietary management, to                      and crowd out was withdrawn on                            Comment: One commenter contended
                                             beneficiaries with certain medical                      February 4, 2009, at the direction of                  that there are no provisions to require
                                             conditions and/or in certain parts of the               President Obama. The CHIPRA, signed                    States to ensure that American Indians/
                                             State. Prior to the enactment of the DRA,               into law on that same day, provides new                Alaska Natives continue to have access
                                             a State that wanted to tailor its Medicaid              flexibility to States for streamlining                 to culturally competent health services
                                             program to meet the unique needs of its                 citizenship documentation. CHIPRA                      through the Indian Health Service (IHS)
                                             beneficiaries would have to utilize a                   also includes technical amendments to                  or tribally operated health programs.
                                             demonstration or waiver program.                        the DRA which clarify documentation                    The commenter stated that the proposed
                                                Comment: One commenter stated that                   requirements, provide for a reasonable                 rules allow States to offer coverage
                                             the proposed rule, read together with                   opportunity period for individuals to                  without regard to comparability,
                                             other CMS rules like the citizenship                    submit such documentation, and                         statewideness, freedom of choice, the
                                             documentation requirement and CMS’s                     expand the list of documents that are                  assurance of transportation to medically
                                             Children’s Health Insurance Program                     acceptable for verifying citizenship.                  necessary services, and other
                                             (CHIP) crowd-out directive of August                       Comment: Several comments were                      requirements. There are large disparities
                                             17, 2007, create major barriers to access               provided by organizations that have an                 between American Indians/Alaska
                                             to appropriate health care, and that the                interest in how the benchmark and                      Natives’ health care status and the
                                             proposed rule has a devastating impact                  benchmark-equivalent benefit packages                  health care status of the rest of the
                                             on the low income populations. In                       impact American Indians/Alaska                         country. The commenter added that for
                                             particular, some commenters raised                      Natives. The commenters believed that                  American Indians/Alaska Natives, the
                                             concerns about requirements for                         alternative benefit packages serve as a                patient should always have the option
                                             American Indians and Alaska Natives to                  substantial barrier to American Indians/               of the provider being an Indian Health
                                             prove both citizenship and identity in                  Alaska Natives enrollment in the                       Service or tribal health program.
                                             order to obtain Medicaid services.                      Medicaid program. They noted that,                        Response: State Medicaid programs
                                             Commenters also raised concerns about                   because of the Federal government’s                    provide health care services to many
                                             the CHIP review strategy outlined in an                 trust responsibility to provide health                 diverse populations including American
                                             August 17, 2007 letter sent to State                    care to American Indians/Alaska                        Indians/Alaska Natives individuals. We
                                             Health Officials. Commenters also                       Natives, implementing benchmark and                    believe that culturally competent
                                             asserted that other proposed rules                      benchmark-equivalent benefit packages                  services are important for all Medicaid
                                             released by CMS like the Rehabilitation                 have specific tribal implications that                 beneficiaries and access to care and
                                             Rule and the Targeted Case Management                   were not addressed in the proposed                     facilities in remote parts of the country,
                                             Rule coupled with this rule will have a                 rule. Several commenters believed that                 where it is especially difficult to find
                                             devastating effect on individuals in                    American Indians/Alaska Natives                        providers who will agree to participate
                                             need of transportation since these rules                should be exempt from mandatory                        in the Medicaid program, is paramount.
                                             also eliminate non-emergency medical                    enrollment in benchmark and                            Section 1937 of the Act does not
                                             transportation services.                                benchmark-equivalent benefit programs                  provide any special protections for
                                                Response: We agree that the DRA                      entirely.                                              benefit packages applicable to American
                                             benchmark rules can create some risk                       Response: In Medicaid, there is no                  Indians/Alaska Natives individuals, but
                                             that beneficiaries may not be able to                   statutory basis to exempt American                     this does not mean that benefit packages
                                             access needed care, and we will                         Indians/Alaska Natives from Medicaid                   will be deficient.
                                             implement the rules mindful of this                     alternative benefit provisions. Section                   Section 5006(e) of the ARRA, which
                                             possibility and consistent with the                     1937 of the Act does not provide for                   was signed on February 17, 2009 and
                                             Federal law. Additionally, CHIPRA                       such an exemption. Section 1937 does                   became effective July 1, 2009, requires
                                             included two significant technical                      provide some specific exemptions from                  that in the case of any State in which
                                             changes to the DRA that amended                         mandatory enrollment in benchmark or                   one or more Indian Health Program or
                                             section 1937 of the Act. In order to                    benchmark-equivalent benefit packages                  Urban Indian Organization furnishes
                                             reflect these changes, we modified the                  and it is possible that some American                  health care services, the Medicaid State
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             regulation at § 440.390 to clarify that                 Indians/Alaska Natives would fit into                  plan specify a process under which the
                                             States must assure necessary                            one of these exempt groups. Section                    State seeks advice from designees of
                                             transportation to and from providers                    1937 does not however give CMS                         such programs or organizations on
                                             and at § 440.345 to clarify that States                 authority to identify additional exempt                matters that are likely to have a direct
                                             must assure that children under the age                 groups.                                                effect on these health programs.
                                             of 21 who are enrolled in alternative                      To address the unique needs of the                     As noted previously, to address the
                                             benefit plans must have full access to                  American Indians/Alaska Natives                        unique needs of the American Indians/


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00009   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23076                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             Alaska Natives population, we expect                    benefits. Futhermore, CMS does not                     with Indian Tribes in the development
                                             States to work with Indian Health                       determine IHS funding levels.                          of waiver proposals. And, a commenter
                                             Programs or Urban Indian Organizations                     In an effort to reach out to Tribes we              urged that, after appropriate tribal
                                             that furnish health care services to                    held several discussions with Tribes                   consultation and revision reflecting
                                             ensure that alternative benefit packages                about the changes made to the DRA and                  these and other comments, the rule be
                                             recognize the unique services offered by                section 1937 of the Act by section 611                 republished with a longer public
                                             IHS and tribal providers, and the unique                of CHIPRA. These discussions took                      comment period.
                                             health needs of the American Indians/                   place during the All Tribes call on July                  One Tribe commented that the
                                             Alaska Natives population.                              2, 2009, and during two face to face                   proposed rule does not honor treaty
                                                With regard to the assurance of                      open consultation meetings held with                   obligations for health services that are
                                             transportation and freedom of choice of                 Tribes on July 8th and July 10th, 2009.                required by the Federal government’s
                                             providers, CHIPRA amended the                           We covered all CHIPRA related issues,                  unique legal relationship with Tribal
                                             ‘‘notwithstanding any other provisions                  including the changes made to section                  governments.
                                             of this title’’ language. This change in                1937 of the Act during all of these                       Response: CMS currently operates
                                             the law clarifies that the authority under              meetings. Also, on June 29, 2009 we                    under the Department of Health and
                                             section 1937 of the Act to deviate from                 covered section 611 of CHIPRA during                   Human Services’ Tribal Consultation
                                             otherwise applicable Medicaid                           the Tribal Technical Advisory Group                    Policy. The Departmental guidelines
                                             requirements is limited. Therefore, we                  (T–TAG) meeting CMSO had with the                      provide information as to the regulatory
                                             revised the regulation at § 440.390 to                  T–TAG policy advisors. CMS is                          activities that rise to the level that
                                             require States to assure necessary                      committed to enhancing communication                   require consultation (include prior
                                             transportation to and from providers for                with Tribes and to assuring that the                   notification of rulemaking). We have
                                             individuals enrolled in benchmark and                   obligation of States to consult with                   considered the Departmental guidelines.
                                             benchmark-equivalent plans and at                       American Indians/Alaska Natives on all                 Though the effect on American Indians/
                                             § 440.385 by removing the option to                     issues affecting Indian health services                Alaska Natives individuals results from
                                             provide benchmark and benchmark-                        are followed by State Medicaid                         the statute itself, and not this rule, CMS
                                             equivalent coverage without regard to                   agencies.                                              did consult with the Tribes about the
                                                                                                        Comment: Some commenters believed                   changes made to the DRA and section
                                             freedom of choice of providers. While
                                                                                                     that the proposed rule did not comply                  1937 of the Act by section 611 of
                                             we do not anticipate that there will be
                                                                                                     with the Department of Health and                      CHIPRA as described in the previous
                                             many requirements of title XIX that
                                                                                                     Human Services’ Tribal Consultation                    response.
                                             would be contrary to implementing a                                                                               Section 5006(e) of ARRA, which was
                                                                                                     policy, since CMS did not consult with
                                             benchmark benefit plan, States may                                                                             signed on February 17, 2009 and
                                                                                                     Tribes in the development of these
                                             request an exemption from a provision                                                                          became effective July 1, 2009, provides
                                                                                                     regulations before they were
                                             of title XIX if they can demonstrate how                                                                       American Indians/Alaska Natives
                                                                                                     promulgated.
                                             the provision would be directly contrary                   These commenters noted that CMS                     individuals with new protections
                                             to section 1937 of the Act.                             did not obtain advice and input from                   because it requires that Medicaid State
                                                Comment: Another commenter stated                    the CMS Tribal Technical Advisory                      plans specify a process under which the
                                             on behalf of American Indians/Alaska                    Group (TTAG), even though the TTAG                     State seeks advice from designees of
                                             Natives, the Indian and tribal health                   meets on a monthly basis through                       Indian Health Programs or Urban Indian
                                             care system is woefully under-funded                    conference calls and holds quarterly                   Organizations that furnish health care
                                             and tribal providers rely on Medicaid                   face to face meetings in Washington,                   services on matters that are likely to
                                             revenues to supplement that meager                      DC. They also noted that CMS did not                   have a direct effect on these health
                                             funding. Forcing American Indians/                      utilize the CMS TTAG Policy                            programs. States that elect to implement
                                             Alaska Natives into benchmark plans,                    Subcommittee, which was specifically                   alternative benefit packages must
                                             which may have dramatically reduced                     established by CMS for the purpose of                  consult with Tribes and notify them
                                             coverage or payments, would thus                        obtaining advice and input in the                      about State plan amendments that will
                                             jeopardize Indian health, injure tribal                 development of policy guidance and                     directly affect the Tribes. These
                                             health systems, and thereby violate the                 regulations.                                           regulations implement section 1937 of
                                             Federal trust obligation to care for the                   These commenters also noted that the                the Act, as enacted by Congress, and do
                                             health needs of Indian people.                          proposed rule does not contain a Tribal                not address treaty rights of American
                                                Response: We acknowledge that                        summary impact statement describing                    Indians. These regulations neither
                                             benchmark plans could reduce covered                    the extent of the tribal consultation or               diminish nor increase such treaty rights.
                                             benefits. To date, however, CMS has                     lack thereof, nor an explanation of how                Questions about the Indian Health
                                             approved ten benchmark benefit                          the concerns of Tribal officials have                  Services budget should be directed to
                                             programs, and most offer State plan                     been met. Several commenters request                   Indian Health Services.
                                             services plus additional services like                  that these regulations not be made                        Comment: Several commenters
                                             preventive care, personal assistance                    applicable to American Indians/Alaska                  believed that States should not have the
                                             services, or disease management                         Natives Medicaid beneficiaries until                   ability to create benchmarks that allow
                                             services. For individuals under the age                 Tribal consultation is conducted, or be                for increases in cost sharing.
                                             of 21, section 1937 of the Act ensures                  modified to specifically require State                 Specifically, States can establish a
                                             that all needed services will be available              Medicaid programs to consult with                      benchmark coverage package that
                                             through the requirement that EPSDT                      Indian Tribes before the development of                requires co-pays for health care access,
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             services must be provided either in                     any policy which would require                         whereby the cost sharing will actually
                                             addition to, or as part of, the benchmark               mandatory enrollment of American                       be a limitation on coverage. However, if
                                             or benchmark-equivalent plan.                           Indians/Alaska Natives in benchmark or                 the selected benchmark plan indicates
                                                Section 1937 of the Act does not                     benchmark-equivalent plans. One                        that it provides coverage for only half of
                                             provide a basis to exclude IHS or tribal                commenter suggested that this                          the cost of mental health services, CMS
                                             health providers from participation in                  consultation should be similar to the                  views that as a coinsurance requirement
                                             the delivery system for alternative                     way in which consultation takes place                  rather than as a limitation on coverage.


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00010   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                        23077

                                             Premiums and cost sharing act as a                      obligations of beneficiaries. In choosing                 Benchmark-equivalent plans may also
                                             deterrent to those receiving health care                the benchmark option over the State                    include care management, care
                                             and may cause low income populations                    plan option, these individuals would                   coordination, and/or home health
                                             to choose between healthcare and basic                  thus have actively made an informed                    services, but it is possible that some
                                             needs such as food. The commenter                       choice. Finally, exempt individuals                    plans will not include these services.
                                             indicated that American Indians/Alaska                  must be able to revert back to traditional             We do not agree that a requirement that
                                             Natives and other low-income groups                     Medicaid at any time. States electing to               States include these specific services
                                             should be exempt from premiums and                      offer an alternative benefit package and               would be consistent with the statute.
                                             cost-sharing requirements.                              choosing to allow voluntary enrollment                    An important protection for children
                                                Response: States have the option to                  for exempt populations must                            enrolled in alternative benefit packages
                                             impose cost sharing in Medicaid but are                 demonstrate how the State will                         is the requirement to ensure full access
                                             limited by the requirements of sections                 operationalize the disenrollment                       to the EPSDT benefit for children under
                                             1916 and 1916A of the Act. To the                       provisions as well as provide detailed                 the age of 21. If services are not
                                             extent that these benchmark packages                    information on how informed choice                     provided as part of the benchmark or
                                             impose premiums or cost sharing, this                   will occur.                                            benchmark-equivalent plan, these
                                             final regulation stipulates that any cost                  Comment: One commenter urged                        services must be provided by the State
                                             sharing and premiums for individuals                    CMS to add provisions to provide                       as additional benefits. States electing
                                             may not exceed cost sharing limits                      special protections for individuals with               the benchmark benefit option must
                                             applicable under sections 1916 and                      disabilities, dual eligibles, and persons              provide CMS with information
                                             1916A of the Act. In a State that                       with other chronic medical conditions                  describing how it will inform families of
                                             imposes cost sharing under either 1916                  to ensure access to benchmark packages                 the availability of such services and
                                             or 1916A the State would be permitted                   that are uniquely designed to address                  how the State will coordinate access to
                                             to apply different cost sharing                         physical impairments and rehabilitation                those services when they must be
                                             requirements for individuals enrolled in                needs.                                                 provided outside of the benchmark
                                             the benchmark or benchmark-equivalent                      Another commenter believed CMS                      plan. Furthermore, States, at their
                                             plan than it imposes for those not                      should require State Medicaid agencies                 option, can provide for additional
                                             enrolled in such plans. In some cases                   to provide access to care management                   services to benchmark or benchmark-
                                             individuals enrolled in benchmark or                    and care coordination services to                      equivalent programs.
                                             benchmark-equivalent plans may                          Medicaid individuals who are incapable                    Additionally, exempt individuals
                                             actually have lower cost sharing than is                of managing their benchmark plan                       must make an informed choice before
                                             required of individuals enrolled in the                 services. The commenter further                        they elect to voluntarily enroll in
                                             traditional State plan benefit package.                 believed that home health services                     benchmark or benchmark-equivalent
                                             Under section 1916A of the Act, there                   should be included in all benchmark                    plans. This includes the requirement
                                             are tiered individual service limits                    plan packages.                                         that States must provide exempt
                                             based on family income, and an                             Several commenters recommended                      individuals with a comparison of the
                                             aggregate cap of five percent of family                 that all State programs include                        benefits included in the benchmark or
                                             income. These limits apply to all                       prevention services and promote health,                benchmark-equivalent plan versus the
                                             individuals enrolled in benchmark                       wellness, and fitness. Physical                        benefits included in traditional State
                                             plans.                                                  therapists are involved in prevention by               plan coverage. The exempt individual
                                                Section 5006 of ARRA added new                       promoting health, wellness and fitness,                has the right to return to State plan
                                             protections for American Indians/                       and in performing screening activities.                coverage at any time. For example, if the
                                             Alaska Native related to: premiums and                     One commenter is concerned that the                 exempt individual is in need of services
                                             cost sharing; exclusion of certain                      managed care model is better suited for                not offered in the benchmark plan, the
                                             American Indians/Alaska Natives                         a ‘‘well’’ population as opposed to                    individual can return to the regular
                                             specific property from estate recovery in               children with chronic special health                   Medicaid benefit package immediately.
                                             Medicaid; new rules regarding                           care needs and adults with disabilities.               In order to assure that exempt
                                             American Indians/Alaska Natives,                           Response: To the extent that the                    individuals voluntarily choose to enroll
                                             Indian Health Providers and Indian                      commenter is concerned that alternative                in a benchmark benefit plan, we revised
                                             Managed Care entities in Medicaid; and                  benefit packages will result in a                      § 440.320 to require States to track the
                                             new consultation requirements for                       reduction in services, we acknowledge                  number of voluntary enrollments and
                                             Medicaid, CHIP and other health care                    that this is a possibility. However, for               disenrollments in benchmark benefit
                                             programs funded under the Act                           the benchmark State plan amendments                    plans by exempt individuals. Section
                                             involving Indian Health programs and                    implemented to date, most offer                        440.320 also requires States to act
                                             Urban Indian organizations.                             traditional State plan services as well as             promptly on requests from exempt
                                                It is important to note that alternative             additional services like prevention and                individuals for disenrollment and to
                                             benefit package programs are provided                   disease management.                                    ensure that these individuals have full
                                             at the State’s option. However, we                         States can consider benchmark-                      access to standard State plan services
                                             recognize the concerns raised by these                  equivalent coverage as long as the                     while disenrollment requests are being
                                             commenters.                                             coverage includes mandatory services                   processed.
                                                Numerous Medicaid eligibility                        such as inpatient and outpatient                          Comment: One commenter said the
                                             categories are exempt from mandatory                    hospital services, physicians’ surgical                provisions of the regulation on
                                             enrollment in alternative benefit                       and medical services, laboratory and x-                exempting populations and covering
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             packages and can only select the                        ray services, emergency services, well-                benefits should be consistent with the
                                             alternative benefit package voluntarily.                baby and well-child care including age-                Americans with Disabilities Act (ADA).
                                             Such individuals must be provided a                     appropriate immunizations, and other                      Response: While exempt populations
                                             comparison of the benchmark option                      appropriate preventive services. We                    under this regulation are specified in
                                             versus the State plan option before they                have determined that other appropriate                 section 1937 of the Act and CMS does
                                             choose to enroll. That comparison must                  preventive services must include family                not have authority under the statute to
                                             include information on the cost-sharing                 planning services and supplies.                        expand the definition of exempt


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00011   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23078                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             populations through the regulatory                      care regulations at 42 CFR part 438, we                services, or that providers will have to
                                             process, we would consider any                          believe that the disenrollment                         establish new processes and systems to
                                             implications of the ADA when                            provisions of § 438.56, which provide                  calculate, track, bill, and report
                                             reviewing a benchmark plan                              for a 90-day period after initial                      benchmark services. Moreover, because
                                             amendment and in monitoring                             enrollment in which a managed care                     most States already offer managed care
                                             implementation of the option by a State.                enrollee may change plans is consistent                enrollment, they already have
                                                Comment: One commenter believed                      with the requirements of section                       experience ensuring coordination of
                                             current regulations governing managed                   1932(a)(4) of the Act and represents a                 provider claims among different
                                             care in Medicaid that describe the                      reasonable time period for enrollees to                managed care entities. Thus, we do not
                                             information States must provide and                     decide whether the plan in which they                  believe that the offering of alternate
                                             how that information should be                          are enrolled will best meet their needs.               benefit packages will impose significant
                                             provided should be incorporated in the                  This trial period of enrollment is even                administrative burdens on providers.
                                             rule governing benchmark benefit plans.                 more critical when the plan is offering                   Comment: One commenter stated the
                                             The information should include a                        a benchmark or benchmark-equivalent                    regulation should require plan to plan
                                             comparison of features between                          benefit package. We are not convinced                  reconciliations of payment in instances
                                             Medicaid and the benchmark plan,                        that this limited period of time provides              where beneficiaries have switched from
                                             whenever they differ.                                   an incentive for enrollees to plan-hop in              one benefit plan to another, and in order
                                                Other commenters urged CMS to                        order to access specific benchmark                     to minimize confusion about plan
                                             allow States to deviate from the lock-in                benefits.                                              enrollment and benefits, benchmark
                                             provisions of Medicaid managed care                        Further, CMS has specified three                    plans should be required to coordinate
                                             regulations at 42 CFR part 438. They                    circumstances where cause for                          the receipt of beneficiary ID cards with
                                             assert that, if beneficiaries covered by an             disenrollment exists and permitted                     the beneficiary’s effective date of
                                             alternative benefit package, rather than                States to develop other reasons,                       enrollment.
                                             full Medicaid benefits, can pick and                    including but not limited to, the                         Response: We acknowledge the
                                             choose benefits during an enrollment                    examples in § 438.56(d)(iv). Beyond                    commenter’s concern regarding
                                             period by plan-hopping, plans will have                 these requirements, States have the                    coordination of beneficiary enrollment
                                             no way to establish cost-effective                      flexibility to create additional causes for            in a plan and reconciliation of payment
                                             premiums tied to the limited benefit                    disenrollment as best serves their                     to providers. These are implementation
                                             package. The commenters requested that                  beneficiaries and the Medicaid Program.                and administrative issues that are, at
                                             CMS allow States providing alternate                       Comment: Some commenters believed                   least initially, best addressed by the
                                             benefit packages to offer as little as a 30-            that CMS should require that all non-                  State. We expect the State to
                                             day change period after initial                         managed care plans ensure adequate                     appropriately coordinate enrollment
                                             assignment, and differences in covered                  access to providers that accept                        and payment processes in a fashion that
                                             benefits be excluded as a justifiable                   assignment of benefits and bill                        minimizes confusion and we expect the
                                             cause for beneficiaries to switch health                benchmark plans directly.                              State to ameliorate coordination of
                                             plans after the change period.                             Response: Access standards apply to                 payment issues so that providers are
                                                Response: In light of the statutory                  all aspects of the Medicaid program,                   paid appropriately and in a timely
                                             changes made by CHIPRA, we revised                      including benchmark and benchmark-                     fashion. However, we believe that these
                                             the regulation at § 440.305 to                          equivalent plans. If States choose to                  issues need not be addressed in
                                             incorporate compliance with Medicaid                    offer benchmark or benchmark-                          regulation at this time, and that most
                                             managed care requirements at section                    equivalent plans to Medicaid                           States already have systems in place to
                                             1932 of the Act and at 42 CFR part 438                  beneficiaries, States must assure that                 coordinate enrollment and provider
                                             of Federal regulations. Thus, in                        access to providers and claims payment                 payments between managed care plans.
                                             providing information to beneficiaries                  are in compliance with current Federal                 Should there be evidence of problems
                                             who are offered managed care plans to                   regulations.                                           CMS will revisit this issue.
                                             obtain alternate benefit coverage, States                  Comment: One commenter raised the                      Comment: One commenter asserted
                                             are required to comply with the                         potential problems of billing alternate                that the final rule should require States
                                             requirements at 42 CFR 438.10, and                      benefit insurers. The commenter                        to provide an exceptions process in
                                             therefore must provide all enrollment                   believed CMS should ensure that                        which beneficiaries can obtain services
                                             notices, informational materials, and                   benchmark plan options should impose                   not covered by a benchmark plan when
                                             instructional materials relating to the                 no additional administrative burdens on                they are medically necessary, and to
                                             enrollees and potential enrollees in a                  participating Medicaid providers.                      educate beneficiaries about how to
                                             manner and format that may be easily                    Providers should not be depended upon                  pursue this essential safeguard.
                                             understood. This informational material                 to refund payments and re-bill plans in                   Similarly, States should also be
                                             must include, among other things,                       the event that a plan is billed for a                  required to provide hardship
                                             information concerning enrollment                       Medicaid individual who is                             exemptions if beneficiaries are unable to
                                             rights and protections; any restrictions                retroactively enrolled into a different                meet cost sharing requirements in
                                             on freedom of choice among providers;                   plan. Individual plan requirements                     benchmark plans and should review
                                             procedures for obtaining benefits                       should be streamlined into the existing                each beneficiary’s eligibility category to
                                             including prior authorization                           system to minimize complexity to the                   ensure they meet statutory requirements
                                             requirements; information on grievances                 already complex billing requirements.                  for assignment to benchmark plans.
                                             and fair hearings procedures;                              Response: Provider billing procedures                  Response: CMS agrees with the
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             information on physicians, the amount,                  will vary among the States based on the                commenter that States should review
                                             duration, and scope of benefits; cost                   particular health care delivery system in              each beneficiary’s eligibility category to
                                             sharing, if any, and the process and                    the State at issue. We do not anticipate               ensure they meet statutory requirements
                                             procedures for obtaining emergency                      that provider billing under an                         for assignment to benchmark plans. The
                                             services.                                               alternative benefit program will                       requirements for when mandatory
                                                With regard to deviating from the                    necessarily differ from the way in which               enrollment can occur are outlined in
                                             lock-in provisions of Medicaid managed                  providers currently bill for Medicaid                  § 440.431 and specify that only certain


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00012   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                          23079

                                             groups of full benefit eligibles can be                 also provides that States may implement                that States secure public input prior to
                                             mandatorily enrolled in benchmark                       undue hardship provisions for                          any submission to CMS of a proposed
                                             benefit packages. We are requiring in                   premiums and may permit providers to                   State plan amendment that would
                                             § 440.320 that exempt individuals be                    waive cost sharing on a case-by-case                   provide for an alternative benefit
                                             fully informed regarding the choice for                 basis.                                                 package. We are not requiring any
                                             enrollment in benchmark or benchmark-                      Comment: One commenter believed                     specific process to secure public input,
                                             equivalent plans and that they                          alternative plans should include a                     in order to permit States flexibility to
                                             affirmatively enroll in benchmark and                   provision for mandatory cost sharing,                  design and use a public input process
                                             benchmark-equivalent plans. We are                      where applicable, in return for                        that meets State needs, but we intend
                                             also requiring that States comply with                  treatment or services. Uncollected cost-               these processes to be meaningful and
                                             the Medicaid managed care regulations                   sharing places an unfair financial                     will be reviewing how they are
                                             including the information requirements                  burden on providers.                                   conducted to assure compliance with
                                             for enrollees and potential enrollees.                     Response: States are required to                    the law.
                                                We are not requiring that States                     ensure that benchmark or benchmark-                       Comment: One commenter suggested
                                             provide a process for beneficiaries to                  equivalent plans comply with the cost-                 that CMS require States to include in
                                             obtain services not covered by a                        sharing requirements at sections 1916                  Medicaid contracts with alternative
                                             benchmark plan when they are                            and 1916A of the Act. These sections                   benefit packages provisions that require
                                             medically necessary, except with                        provide that States can impose                         fair reimbursement for providers at rates
                                             respect to children, because such a                     premiums and cost sharing on certain                   no less than rates paid under the
                                             process is not authorized by section                    Medicaid beneficiaries, and Section                    traditional Medicaid program, including
                                             1937 of the Act. Benchmark or                           1916A provides for enforcement of such                 a reasonable dispensing fee for
                                             benchmark-equivalent plans offered to                   premiums and cost sharing on certain                   pharmacy providers.
                                             beneficiaries constitute the individual’s               Medicaid beneficiaries (certain                           Further, the commenter believed that
                                             medical assistance health care coverage.                limitations do apply). The enforcement                 CMS should prohibit States from
                                             Children must be provided access to the                 of premiums and cost sharing through                   procuring contracts that contain mail
                                             full range of EPSDT services, as defined                the denial of medically necessary                      order prescription requirements for
                                             in section 1905(r). While section 1905(r)               services is at a State’s option. CMS is                Medicaid-eligible individuals. The
                                             of the Act specifically requires that                   not requiring that cost sharing be                     commenter asserts that Medicaid-
                                             States provide children necessary health                mandated in return for treatment or                    eligible individuals who are required to
                                             care, diagnostic services, treatment and                services, since this would be                          enroll in benchmark plans should have
                                             other measures described in section                     inconsistent with the statutory language               the option of receiving pharmacy
                                             1905(a) related to conditions discovered                provided by Congress in the DRA and                    services in a retail pharmacy setting.
                                             by a screening service, we believe that                 could impose considerable hardship                     CMS should also require that contracts
                                             any encounter with a health                             and result in the denial of necessary                  contain an assurance that allows
                                             professional practicing within the scope                health service for beneficiaries.                      extended quantities of medications from
                                             of his or her practice should be                           Comment: One commenter mentioned                    retail pharmacies for Medicaid-eligible
                                             considered to be a screening service for                that because of the potential for harm to              individuals receiving treatment for
                                             the purpose of the EPSDT requirement.                   beneficiaries, this rule should mandate                chronic illnesses.
                                                It is important to note that for those               strong requirements for meaningful                        Response: States are required to
                                             who voluntarily enroll in benchmark or                  public input at both the Federal and                   submit State plan amendments to
                                             benchmark-equivalent plans, such                        State level when States propose use of                 establish rates and rate methodologies
                                             individuals must be permitted to revert                 alternative benefit packages. Only a full              for all fee-for-service institutional and
                                             to traditional Medicaid coverage at any                 open process in which all stakeholders                 non-institutional services as part of their
                                             time. Requests by individuals to                        can participate will provide the                       approved Medicaid State plan.
                                             disenroll must be acted upon promptly.                  thorough, thoughtful analysis needed to                Benchmark plans that utilize fee-for-
                                             Furthermore, we included at § 440.320 a                 determine whether specific changes will                service delivery systems must follow the
                                             requirement for States to have a process                foster genuine efficiency or threaten                  State plan reimbursement process. This
                                             in place to ensure that any                             beneficiaries’ access to appropriate care.             process is detailed at § 447.200 and
                                             disenrollment request is processed                         These commenters noted that the                     § 447.201 and includes a public notice
                                             promptly and the individual is                          State plan amendment process provides                  requirement detailed at § 447.205. We
                                             immediately able to access services                     almost no meaningful opportunity for                   published general rate setting
                                             described in the standard Medicaid                      public input. They noted that States can               regulations for drugs at 42 CFR part 447
                                             State plan while the State is processing                implement changes the day after                        subpart I and for managed care entities
                                             the individual’s disenrollment request.                 publishing a notice, with no                           at § 438.6(c), and we expect States to
                                                In terms of cost sharing, States are                 requirement to acknowledge or address                  follow these rules when setting rates for
                                             required to ensure that benchmark or                    comments.                                              benchmark and benchmark-equivalent
                                             benchmark-equivalent plans comply                          The commenter suggested that                        plans.
                                             with the cost-sharing requirements at                   meaningful opportunities for public                       With regard to benchmark benefit
                                             sections 1916 and 1916A of the Act,                     comment could include well-publicized                  plans that use managed care as the
                                             which includes the provision that                       and easily accessible public hearings,                 delivery system, the requirements for
                                             premiums and/or cost sharing not                        ample opportunity for stakeholders to                  actuarial soundness at part 438 apply in
                                             exceed 5 percent of the family’s income.                provide written comments, and a                        the same way they apply to any
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             Consistent with section 5006 of the                     requirement that State and Federal                     Medicaid managed care entity, but we
                                             ARRA, States are required to ensure that                officials provide written responses to                 do not have statutory authority to
                                             eligible Indians are neither charged                    comments.                                              review or approve reimbursement rates
                                             premiums nor required to participate in                    Response: We agree that States must                 to contracted providers under managed
                                             cost sharing for services provided by                   seek public input concerning plans to                  care arrangements once the premium
                                             IHS providers or through contract health                offer alternative benefit packages. Thus,              has been certified as actuarially
                                             services through IHS providers. The Act                 we are requiring in § 440.305 ‘‘Scope’’                appropriate for the populations and


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00013   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23080                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             services in the contract. We do however,                should provide exemptions to                              We have determined that our
                                             have the authority and responsibility to                additional Medicaid coverage groups.                   proposed regulation did not adequately
                                             review the provider network to                          Other commenters suggested that CMS                    take into account the references in
                                             determine that individuals have                         use its discretion to expand the                       section 1937 to title IV–A, and section
                                             adequate access to all medically                        categories of exempt individuals to                    1931 of the Act. Section
                                             necessary services.                                     include adults with serious mental                     1902(a)(10)(A)(i)(I) of the Act still
                                               With regard to mail order                             illness and children with serious                      requires States to cover, in their
                                             prescriptions, section 1937 did not                     emotional disturbances.                                Medicaid programs, individuals
                                             address or limit the use of mail order                     Some commenters believed that all                   receiving cash assistance under part A
                                             prescription requirements, or otherwise                 people with mental illness should be                   of title IV. However, section 1931 of the
                                             address or limit the coverage of, or                    exempt.                                                Act provides the rules for determining
                                             payment for, prescription drugs.                           Response: The statute does not                      whether an individual is treated as a
                                               Comment: One commenter                                authorize CMS to exempt additional                     recipient of title IV–A assistance for
                                             recommended that CMS include in its                     categories of individuals from                         purposes of Medicaid eligibility. Under
                                             rule an evaluation of the impact on                     mandatory enrollment in alternate                      section 1931 of the Act, references to
                                             beneficiaries of the benchmark benefit                  benefit package. We have included the                  title IV–A must be considered to be
                                             packages.                                               medically needy with the list of exempt                references to the IV–A State plan that
                                               Response: CMS points the commenter                    populations because the medically                      was in effect prior to the date that title
                                             to the ‘‘Regulatory Impact Analysis’’ in                needy population is effectively                        I of PRWORA took effect. In other
                                             section VI.B ‘‘Anticipated Effects’’ of this            exempted from mandatory enrollment                     words, the AFDC cash assistance rules
                                             regulation.                                             by exclusion from the definition of ‘‘full             are carried over to Medicaid eligibility
                                                                                                     benefit eligible’’.                                    under section 1931, (States may adopt
                                             D. 440.310 Applicability                                   We have defined ‘‘medically frail’’ and             less restrictive rules under section
                                               Comment: One commenter disagreed                      ‘‘special medical needs’’ individuals                  1931(b)(2) of the Act), but actual
                                             that the medically needy population                     who are exempt from mandatory                          eligibility for or receipt of cash
                                             should be exempt from participating in                  enrollment. At a minimum, States must
                                                                                                                                                            assistance is not a requirement under
                                             benchmark plans. The commenter                          include children with serious emotional
                                                                                                                                                            section 1931. Accordingly, we are
                                             believed the rule should permit                         disturbances, individuals with disabling
                                                                                                                                                            revising our regulation at § 440.315(i) to
                                             voluntary enrollment of medically                       mental disorders, individuals with
                                                                                                                                                            provide that parents or caretakers who
                                             needy into benchmark plans in States                    serious and complex medical
                                                                                                                                                            qualify for medical assistance on the
                                             such as Minnesota which provide full                    conditions, and individuals with
                                                                                                                                                            basis of eligibility to receive assistance
                                             benefits across the board to both                       physical and or mental disabilities that
                                                                                                                                                            under a State plan funded under part A
                                             categorically and medically needy.                      significantly prevent them from
                                                                                                                                                            of title IV, as determined under section
                                             Section 1937 of the Act only expressly                  performing one or more activities of
                                                                                                                                                            1931 of the Act, are exempt from the
                                             prohibits required participation by the                 daily living. Accordingly, we revised
                                                                                                     the regulation at § 440.315(f) to reflect              requirement to enroll in benchmark or
                                             medically needy but is silent as to
                                                                                                     this change. These are minimum                         benchmark-equivalent coverage. These
                                             whether they can be voluntarily
                                                                                                     standards and States have the flexibility              are the parents who, at a minimum,
                                             enrolled. It is illogical for CMS to
                                                                                                     to expand this definition.                             States must cover under section 1931.
                                             interpret Congressional intent to permit
                                                                                                        Comment: One commenter requested                    We are also clarifying that we interpret
                                             scaled back benefit coverage for the
                                                                                                     a definition for exempt individuals                    the reference to ‘‘parents’’ in section
                                             categorically needy, while shielding the
                                                                                                     ‘‘who qualify for Medicaid solely on the               1937(a)(2)(B)(ix) to include caretakers,
                                             medically needy from scaled back
                                                                                                     basis of qualification under the State’s               as defined in section 1931. We are not
                                             benefit packages.
                                               Response: We agree with the                           TANF rules.’’ The commenter noted that                 requiring that parents or caregivers who
                                             commenter’s suggestion that medically                   no individual can qualify to receive                   qualify for Medicaid on the basis of
                                             needy populations may be offered                        Medicaid benefits solely on the basis of               more liberal income or resource
                                             voluntary enrollment in an alternative                  their TANF eligibility, since TANF is                  methodologies which a State uses
                                             benefit package. Thus, we revised the                   not linked to Medicaid.                                pursuant to the option available under
                                             rule at § 440.315 ‘‘Exempt Individuals’’                   Response: In the proposed rule we                   section 1931(b)(2)(C) be exempt from
                                             to indicate that benchmark and                          published on February 22, 2008, we                     mandatory enrollment in benchmark or
                                             benchmark-equivalent benefits can be                    stated that we interpreted the exemption               benchmark-benefit plans, although
                                             offered as a voluntary option to                        from mandatory enrollment in section                   States may, at their option, exempt some
                                             medically needy or those eligible as a                  1937(a)(2)(B)(ix) of the Act to apply only             or all such individuals.
                                             result of a reduction of countable                      to those individuals who qualify for                      Comment: A commenter stated the
                                             income based on costs incurred for                      Medicaid because the State has elected                 proposed rule defines the exempt
                                             medical care. We recognize that                         to link Medicaid eligibility to TANF                   ‘‘special medical needs’’ group to
                                             applying benchmark benefit plans to                     eligibility. Under the law, since passage              include two of the three groups that are
                                             medically needy individuals can be                      of the Personal Responsibility and Work                also exempt from mandatory enrollment
                                             cumbersome depending on the                             Opportunity Reconciliation Act of 1996                 in managed care plans under section
                                             arrangements for benchmark coverage. If                 (PRWORA), Medicaid eligibility is not                  1932(a)(2) of the Act: ‘‘Dual eligibles’’
                                             the State administers its own                           tied to TANF eligibility. While many                   and certain children. However, the
                                             benchmark benefit plan, enrolling and                   States automatically enroll people                     proposed rule does not exempt the third
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             disenrolling these individuals would be                 receiving TANF in Medicaid they do so                  group that is exempt from mandatory
                                             no more problematic than standard                       because the design of the TANF and                     enrollment in managed care plans,
                                             Medicaid enrollment.                                    Medicaid rules means that, in fact, all                American Indians/Alaska Natives.
                                                                                                     TANF individuals qualify under the                     Several commenters believed that the
                                             E. Section 440.315 Exempt Individuals                   Medicaid rules. There is no direct                     same compelling policy reasons for
                                               Comment: One commenter believed                       eligibility link under law, however,                   excluding American Indians/Alaska
                                             that these alternative benefit packages                 between TANF and Medicaid.                             Natives from mandatory managed care


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00014   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                           23081

                                             support excluding them from mandatory                   care plan that would not be consistent                 blindness and disability than the 50
                                             enrollment in benchmark plans, and                      with that health care delivery system.                 States.
                                             requested that we revise the rule to be                    While American Indians/Alaska                          Comment: Some commenters stated
                                             consistent with current policy described                Natives are not a statutory group that is              that the proposed rule exempts from
                                             in the Medicaid managed care rule of                    exempt from enrollment in an                           mandatory enrollment the ‘‘medically
                                             2002.                                                   alternative benefit package, they remain               frail.’’ Several commenters suggested
                                                Response: In the proposed rule we                    exempt from mandatory enrollment in                    this term be given specific meaning in
                                             mistakenly confused two distinct groups                 managed care when such an option is                    the rule. They suggested it include
                                             in our definition of ‘‘individuals with                 utilized under section 1932 of the Act.                anyone who is eligible for or is receiving
                                             special needs’’ and included individuals                As a result, a State that operates an                  Medicare or Medicaid services for home
                                             eligible for Medicare as a special needs                alternative benefit package through                    health, hospice, personal care,
                                             population when it is identified in                     managed care providers must provide                    rehabilitation or home and community-
                                             section 1937 as a separate exempt                       American Indians/Alaska Natives with a                 based waivers, or who is at imminent
                                             population. We have therefore deleted                   health care delivery system that is                    risk of need for these types of services.
                                             that reference. Section 1937(a)(2)(iii) of              consistent with the special protections                   Another commenter suggested this
                                             the Act exempts individuals entitled to                 related to managed care enrollment                     group be defined as individuals with
                                             Medicare benefits (dual eligibles),                     contained in section 1932(a)(2)(C) of the              multiple medical conditions and/or a
                                             regardless of medical need, from                        Act as well as section 1932(h) of the                  chronic illness.
                                             mandatory enrollment in an alternative                  Act, added by ARRA, that addresses the                    Response: After considering public
                                             benefit package. There is a separate                    requirement that American Indians/                     comment on the issue, we have
                                             statutorily exempt category at section                  Alaska Natives enrolled in managed                     included in the text at § 440.315(f)
                                             1937(a)(2)(vi) of the Act for individuals               care have access to IHS providers.                     guidance on how States must, at a
                                             who are medically frail or have special                    Comment: One commenter believed
                                                                                                                                                            minimum, define ‘‘medically frail.’’
                                             medical needs. This final regulation                    that States may be discouraged from
                                                                                                                                                            Additionally, we will require that States
                                             includes both of these groups                           pursuing the benchmark option because
                                                                                                                                                            offering alternative benefit packages
                                             separately.                                             of the extra work required for
                                                                                                                                                            inform CMS as to their definition of
                                                                                                     determining eligibility, along with the
                                                Specifically, in the proposed rule, we                                                                      ‘‘medically frail.’’ States will be required
                                                                                                     fact that potential savings may be
                                             specified that ‘‘individuals with special                                                                      to include information regarding which
                                                                                                     limited. The commenter asked that CMS
                                             needs’’ means the populations identified                                                                       population groups will be mandatorily
                                                                                                     not impose any additional definition of
                                             in § 438.50(d)(1) and § 438.50(d)(3). The                                                                      enrolled in the benchmark program and
                                                                                                     sub-groups that must be identified and
                                             reference to § 438.50(d)(1) was an                      carved out of benchmark plans.                         will need to ensure that enrollment is
                                             erroneous reference to the dual eligible                   Response: The benchmark benefit is                  optional for exempt populations,
                                             population discussed above. The                         an option that States may elect to utilize             including individuals defined by the
                                             reference to § 438.50(d)(3) was made                    within their Medicaid State plan when                  State as ‘‘medically frail.’’ Additionally,
                                             because that population was a pre-                      the State determines its value for a                   the required public input process
                                             existing definition of the statutory term               defined population. The additional                     should include informing interested
                                             ‘‘children with special medical needs’’                 steps needed in determining eligibility                parties of the State’s proposed definition
                                             contained at section 1932(a)(2)(A) of the               are necessary to assure that the benefit               of ‘‘medically frail.’’
                                             Act. We did not include a separate                      plan is targeted appropriately. The                       Comment: Another commenter
                                             definition of adults with special medical               ultimate value of a benchmark benefit                  suggested CMS use the existing
                                             needs in the proposed rule.                             plan to both the State and beneficiaries               definition of children with special
                                                After reviewing public comment, we                   is dependent upon the clear definition                 health care needs which is defined by
                                             have determined that States should be                   of eligibility for the defined benefit                 the Department of Health and Human
                                             allowed flexibility to adopt reasonable                 package. The exempt categories were                    Services, Health Resources and Services
                                             definitions of ‘‘individuals with special               established by statute and must be                     Administration, Maternal and Child
                                             medical needs’’ as long as that definition              evaluated as a condition of providing a                Health Bureau (MCHB) as: ‘‘Children
                                             includes, at a minimum, the children                    benchmark or benchmark-equivalent                      with special health care needs:’’
                                             specified in § 438.50(d)(3), children                   benefit.                                               ‘‘Children who have or are at increased
                                             with serious emotional disturbances,                       Comment: One commenter asked for                    risk for a chronic physical,
                                             individuals with disabling mental                       additional clarification of the phrase ‘‘or            developmental, behavioral, or emotional
                                             disorders, individuals with serious and                 being treated as being blind or disabled’’             condition and who also require health
                                             complex medical conditions and                          in § 440.315 of this regulation.                       and related services of a type or amount
                                             individuals with physical, and/or                          Response: This phrase needs to be                   beyond that required by children
                                             mental disabilities that significantly                  interpreted in light of the particular                 generally.’’
                                             impair their ability to perform one or                  eligibility conditions in that State. For                 Other commenters believed the
                                             more activities of daily living.                        example, the phrase could refer to States              definition of ‘‘special medical needs
                                                We recognize that Congress included                  that qualify under section 209(b) of the               individuals’’ should include adults who
                                             special protections for American                        Act, since States with this classification             meet the Federal definition of an
                                             Indians under the managed care                          can have a more restrictive definition of              individual with serious mental illness
                                             provisions at section 1932(a)(2)(C) of the              blindness or disability. The term could                and children who meet the Federal
                                             Act, but those special protections were                 also refer to one of the working disabled              definition of children with serious
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             not included under section 1937 of the                  groups, since one group has a                          emotional disturbance, as promulgated
                                             Act. It is possible that the managed care               categorical requirement that the person                by the Substance Abuse and Mental
                                             protections were based on the fact that                 have a medically determinable severe                   Health Services Administration
                                             American Indians have access to the                     impairment, which does not exactly                     (SAMHSA). The SAMHSA definition
                                             IHS and tribal health care delivery                     match the criteria for a determination of              would include some individuals who,
                                             system, and there was concern about                     ‘‘disabled.’’ Additionally, Territories                for one reason or another, are not
                                             mandating enrollment in a managed                       operate on a different definition of                   eligible as persons with a disability, but


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00015   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23082                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             nevertheless are significantly impaired                 otherwise exempt individuals. Several                  State plan, States must define their
                                             by their mental disorder.                               other commenters urged CMS to require                  disenrollment process and include a
                                                Response: In the February 22, 2008                   States to provide more information and                 specific time period for disenrolling a
                                             proposed rule, we defined ‘‘individuals                 assistance to exempt individuals who                   beneficiary and assuring full access to
                                             with special medical needs’’ to be                      are given the option to enroll in                      standard Medicaid coverage. To the
                                             consistent with § 438.50(d)(3), which                   alternative coverage.                                  extent that the informed choice process
                                             implements and interprets the term                         Response: We agree with the                         continues to raise concerns, we will
                                             ‘‘children with special medical needs’’                 commenter that if States plan to offer                 consider the development of additional
                                             used in section 1932(a)(2)(A) of the Act.               enrollment in a benchmark plan to                      guidance as to what processes are
                                             This definition refers to children under                exempt individuals, the State must                     necessary to insure that the informed
                                             age 19 who are eligible for SSI, section                provide information and assistance to                  choice process is effective.
                                             1902(e)(3) of the Act, TEFRA children,                  exempt individuals or their legal                         Comment: One commenter said that
                                             children in foster care or receiving other              guardians/caregivers who are given the                 ‘‘exempt’’ populations should not be
                                             out of home placement, children                         option to enroll in alternative coverage               allowed to enroll in an alternative
                                             receiving foster care or adoption                       plans so they can make an informed                     benefit plan at all.
                                             assistance services or who are receiving                choice. We proposed in § 440.320 that                     Response: The statute states that
                                             services through a community based                      States must inform the individuals that                exempt individuals may not be required
                                             coordinated care system.                                enrollment is voluntary and that the                   to enroll in an alternative benefit plan,
                                                We appreciate commenters’                            individual may disenroll from the                      and with the protections noted, it is
                                             suggestions of additional populations of                benchmark or benchmark-equivalent                      reasonable to give such individuals the
                                             children and adults for inclusion in the                benefit package at any time and regain                 opportunity to enroll in such plans.
                                             definition of special medical needs. In                 immediate access to the standard full                  Alternative benefit plans may in fact
                                             this final rule, we are allowing States                 Medicaid program under the State plan                  have richer benefits than traditional
                                             the flexibility to adopt a reasonable                   while the State processes their                        State plan services and be targeted to
                                             definition of the term ‘‘special medical                disenrollment request. We also                         the specific needs of exempt
                                             needs’’ and we expect States to consider,               proposed that States must inform the                   individuals. We are aware, however,
                                             at a minimum, all of these individuals                  individual of the benefits available                   that the benchmark plan may not
                                             for inclusion in the definition of                      under the benchmark or benchmark-                      provide all the services as the
                                             ‘‘individuals with special medical                      equivalent benefit package and provide                 traditional plan and that exempt groups
                                             needs.’’                                                a comparison of how the benefits, and                  should not in any way be enrolled in
                                                To maintain State flexibility, we have               if relevant, the cost share differ from the            such plans involuntarily, or without full
                                             provided guidance to States in our                      benefits and cost share available under                knowledge of the consequences.
                                             discussion of these terms and in the                    the standard full Medicaid program. We                 Accordingly, this regulation provides
                                             regulation at § 440.315(f) and we are                   also required that the State document in               new protections to assure that exempted
                                             requiring that the exempt population                    the individual’s eligibility file that the             individuals are fully informed about
                                             include, at a minimum, those children                   individual was informed and                            their options for enrolling and
                                             identified in § 438.50(d)(3), children                  voluntarily chose to enroll in the                     disenrolling from an alternative benefit
                                             with serious emotional disturbances,                    benchmark or benchmark-equivalent                      plan.
                                             individuals with disabling mental                       benefit package.                                          Comment: One commenter believed
                                             disorders, individuals with serious and                    After considering public concerns as                the proposed rule was silent on the
                                             complex medical conditions and                          to the importance of the informed                      requirement that the State provide
                                             individuals with physical and or mental                 choice process, we revised the                         information in plain language that is
                                             disabilities that significantly impair                  regulation at § 440.320(a) to require the              understood by the individual, parent, or
                                             their ability to perform one or more                    State to effectively inform exempt                     guardian including clear instructions on
                                             activities of daily living.                             individuals about the voluntary nature                 how to access EPSDT services not
                                                Also, as stated previously, CMS will                 of their enrollment, and that they may                 provided by the benchmark plan and
                                             require that States offering alternative                choose to disenroll at any time from the               how to disenroll from the benchmark
                                             benefit packages inform CMS as to their                 benchmark or benchmark-equivalent                      plan. One commenter suggested that
                                             definition of ‘‘medically frail’’ and                   plan in order to have immediate and full               CMS establish literacy and translation
                                             ‘‘special medical needs.’’ States will be               access to the standard Medicaid                        standards for benefit information sheets
                                             required to ensure that exempt                          benefits, the benefits available under the             and another commenter requested that
                                             populations, including individuals with                 benchmark benefit plan, the cost                       at a minimum, information should be
                                             ‘‘special medical needs’’ or who are                    associated with the benchmark benefit                  provided in the beneficiary’s spoken
                                             ‘‘medically frail’’ are not mandatorily                 plan, and to provide a comparison                      language and at an appropriate reading
                                             enrolled in alternative benefit packages,               between the benefits available under the               level.
                                             but are instead offered an informed                     benchmark benefit plan and cost share,                    Response: We agree that it is
                                             choice. Additionally, CMS will interpret                to the benefits and cost share provided                important to provide information in
                                             the required public input process to                    by the standard, full Medicaid program.                plain language and individuals should
                                             include informing interested parties as                 To support these requirements we have                  be provided clear instructions on how to
                                             to the proposed definition of ‘‘special                 also included the requirement that the                 access EPSDT services not provided by
                                             medical needs.’’                                        State document in the individual’s                     benchmark plans. Furthermore,
                                                                                                     eligibility file that the individual elected           individuals should also receive
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             F. Section 440.320 State Plan                           to enroll in the benchmark plan after                  information on how to disenroll from
                                             Requirements—Optional Enrollment for                    receiving such information regarding                   benchmark plans. We are requiring in
                                             Exempt Individuals                                      benefits and disenrollment rights.                     § 440.320 that States effectively inform
                                               Comment: One commenter supported                         As part of the State Plan Amendment                 exempt individuals of the choice, and
                                             our regulation at § 440.320 and                         (SPA) approval process whereby States                  provide sufficient information in order
                                             appreciated the willingness of CMS to                   receive approval from CMS to                           to make an informed choice, including
                                             provide for optional enrollment of                      implement new benefits under their                     a comparison of benefits and any cost


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00016   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                          23083

                                             sharing. Exempt individuals must be                     the month in which the enrollee files                  50 percent match rate. To the extent that
                                             afforded the opportunity to disenroll                   the request.                                           the State offers alternative benefits
                                             from benchmark or benchmark-                               Comment: Some commenters                            through managed care plans, enrollment
                                             equivalent coverage promptly and                        recommended that CMS enhance the                       brokers must operate consistently with
                                             without any loss of access to the full                  proposed rule to include a section on                  the requirements at § 438.810.
                                             standard Medicaid benefits, if they                     CMS oversight containing a requirement                 Consistent with the managed care rules
                                             determine that the coverage is not                      that CMS approve State informational                   at § 438.10, States are encouraged to
                                             meeting their health care needs.                        materials that provide comparative                     provide information at least annually as
                                                Comment: Some commenters stated                      information and information on choice.                 to an individual’s enrollment choice
                                             that the rules should provide for                       Other commenters were concerned that                   under the benchmark option or the
                                             immediate revocation of any voluntary                   inappropriate marketing activities such                traditional State plan option. This could
                                             election at the discretion of those                     as those they believe are being used by                be accomplished at the point of re-
                                             exempt individuals who elect an                         some Medicare Advantage plans, may                     determining eligibility for enrollees.
                                             alternative plan. These commenters                      be adopted by benchmark plans. These                      Additionally, if a change in eligibility
                                             urged that revocation be permitted                      commenters urged CMS to be aware of                    status has occurred (for example, non-
                                             through telephone, in writing, in                       the potential for inappropriate                        pregnant female mandatorily enrolled in
                                             person, by electronic communication, or                 marketing tactics, require States to                   the benchmark plan becomes pregnant
                                             by a designee, so as to make revocation                 oversee marketing activities, and impose               and is no longer eligible for mandatory
                                             as simple as possible and as quick as                   limits on marketing to ensure                          enrollment), the State will have to
                                             possible for beneficiaries. The                         individuals are not enrolled under false               provide such individuals with
                                             commenters also asserted that the State                 pretenses.                                             information about their benefit options
                                             should be required to provide                              Response: To the extent that                        as soon as the State becomes aware of
                                             immediate notification to such                          benchmark and benchmark-equivalent                     the change in eligibility. If the
                                             individuals of the right to revoke their                benefit packages are provided through                  individual chooses to disenroll, the
                                             election if they fall into an excluded                  managed care plans, States must comply                 individual must have full access to
                                             category. The commenters urged that                     with the Medicaid managed care rules at                standard Medicaid State plan services
                                             coverage and payment should not be                      42 CFR part 438. Marketing                             that may not be available in the
                                             interrupted during changes in election                  requirements for managed care plans are                benchmark plan while the State
                                             and marketing should not be permitted                   described in § 438.104. States must                    implements the disenrollment process.
                                             by alternate plans to excluded groups.                  consider these requirements in                            Comment: Several commenters
                                                These commenters asked that the                      contracting with these entities.                       believed exempt individuals will be
                                             disenrollment process from benchmark                       We will monitor implementation to                   automatically enrolled without their
                                             plans allow a seamless transition to and                determine if additional measures are                   expressed consent and wanted an
                                             from the selected program and minimize                  needed.                                                assurance that this will not occur. These
                                             the administrative burden on the                           Comment: Other commenters                           commenters urged CMS to safeguard
                                             provider while ensuring care delivery is                indicated that CMS should require                      exempt individuals from being enrolled
                                             not interrupted.                                        strong beneficiary protections for                     in benchmark or benchmark-equivalent
                                                Response: We agree that coverage and                 people, including frail older and                      plans without their prior informed
                                             payment should not be interrupted                       disabled beneficiaries, who have the                   consent by more expressly prohibiting
                                             during changes in election. It is                       opportunity to voluntarily enroll in                   States from taking an automatic
                                             important that coordination of care                     benchmark plans. The commenters                        enrollment or default enrollment
                                             continue during any time of transition                  indicated that these protections should                approach to their enrollment. They
                                             either from one Medicaid eligibility                    include objective counseling to make                   suggested that the proposed language
                                             group to another or from one benefit                    sure they understand the potential for                 could allow or even encourage States to
                                             program to another. Thus, in                            higher costs and make truly informed                   adopt an automatic or default
                                             considering the commenters’                             decisions, a ban on aggressive and                     enrollment approach without further
                                             suggestions, we have provided in                        coercive marketing such as door-to-door                clarification because the language could
                                             § 440.320 that, for individuals who                     sales, a requirement to document                       be read to allow States to initially enroll
                                             voluntarily enroll and later determine                  network adequacy for additional                        all exempt persons who do not
                                             they want to return to traditional                      populations, and ongoing monitoring to                 affirmatively choose not to enroll. These
                                             Medicaid and/or for individuals who                     ensure that these beneficiaries are                    commenters indicated that failure to
                                             are later determined eligible for an                    getting the care they need. Some                       clarify this point would be construed as
                                             exempted group, disenrollment requests                  commenters indicated that, even with                   approval of opt-out practices and would
                                             must be acted upon promptly and States                  full information, individuals who                      not protect against any form of
                                             must have a process in place to ensure                  voluntarily enroll may be likely to make               automatic or ‘‘presumed voluntary’’
                                             full access to standard Medicaid State                  an inappropriate election. They                        enrollment.
                                             plan services while disenrollment                       suggested a professional counselor                        Response: Section 1937 of the Act
                                             requests are being processed.                           independent of the plan be available to                provides that exempt individuals cannot
                                             Furthermore, we expect that for                         review their plan selection.                           be mandatorily enrolled in benchmark
                                             individuals who voluntarily enroll and                     Response: We believe a professional                 or benchmark-equivalent plans. We
                                             later decide to return to traditional                   counselor or enrollment broker would                   proposed to permit States to offer
                                             Medicaid and/or for individuals who                     be a reasonable administrative                         exempt individuals a voluntary option
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             are later determined eligible for an                    protection that could be adopted by a                  to enroll, based on informed choice. In
                                             exempted group, the State will process                  State, but we are not requiring it. This               order for exempt individuals not to be
                                             disenrollment requests consistent with                  is an operational issue that may depend                mandatorily enrolled and to have made
                                             the managed care regulations at                         on the circumstances of a particular                   an ‘‘informed choice’’ about enrollment,
                                             § 438.56(e), and the effective date of                  State’s program. States who contract                   the choice must take place before
                                             disenrollment must be no later than the                 with an enrollment broker can receive                  enrollment in the benchmark or
                                             first day of the second month following                 administrative match from CMS at the                   benchmark-equivalent plan. We have


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00017   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23084                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             amended the final rule to make this                     the regular Medicaid program than to                   requests are being processed. We further
                                             clear and to require the State to inform                enroll in benchmark benefit plans.                     revised § 440.320 to include a
                                             the exempt individual of the benefits                   Beneficiaries should not be asked to                   requirement for States to maintain data
                                             available under the benchmark or                        make a choice without being afforded a                 that tracks the number of voluntary
                                             benchmark-equivalent package and the                    reasonable time to evaluate the options.               enrollments in benchmark and
                                             cost of such a package. Furthermore,                    Another commenter was concerned that                   benchmark-equivalent benefit plans and
                                             these actions should occur before the                   a State could reduce its standard                      the number of disenrollments from
                                             receipt of services in a benchmark or                   Medicaid State plan services in order to               these plans.
                                             benchmark-equivalent plan. We                           force exempt beneficiaries to enroll in a
                                                                                                                                                               These requirements also apply to
                                             mentioned earlier that we require that                  benchmark or benchmark-equivalent
                                             the individual’s file be documented to                  plan.                                                  individuals who become part of an
                                             reflect that an exempt individual is fully                 Response: We agree that individuals                 exempt population for which no
                                             informed and has chosen to be enrolled                  should be given a reasonable time to                   mandatory enrollment can occur. It is
                                             in a benchmark or benchmark-                            evaluate the options in considering                    incumbent upon the State to ensure that
                                             equivalent plan. CMS, in response to                    traditional Medicaid benefits versus                   procedures are in place to notify these
                                             these comments, has made it clear that                  benchmark or benchmark-equivalent                      individuals of their change in status and
                                             individuals cannot be enrolled until an                 options. In order for individuals to make              to provide them with information
                                             informed election is made.                              an informed choice, individuals must                   explaining their right to disenroll from
                                                In terms of CMS monitoring, we                       have ample time to consider the options                the benchmark or benchmark-equivalent
                                             provide in Federal regulations at                       available. Therefore, we have revised                  benefit plan and return to the traditional
                                             § 430.32 for program reviews of State                   the regulatory provision at                            Medicaid State plan. We believe that
                                             and local administration of the                         § 440.320(a)(3) to require that the State              States should not rely on the
                                             Medicaid program. In order to                           document that the individual had ample                 individual’s ability to recognize that
                                             determine whether the State is                          time for an informed choice. We are not                their change in status permits them to
                                             complying with the Federal                              prescribing standards for what                         revert back to traditional Medicaid and
                                             requirements and the provisions of its                  constitutes ‘‘ample time’’ because we                  that they are entitled to the full range of
                                             Medicaid plan, we may conduct reviews                   believe this may vary based on the                     Medicaid benefits. It is therefore the
                                             that include analysis of the State’s                    circumstances and/or individual                        responsibility of the State to assure that
                                             policies and procedures, on-site review                 involved. With regard to States reducing               these individuals have the choice to
                                             of selected aspects of agency operation,                their standard Medicaid State plan                     receive benchmark plan benefits, or the
                                             and examination of individual case                      services, section 1937 of the Act does                 benefits available under the traditional
                                             records. We also require in § 440.320                   not change State flexibility to reduce or              Medicaid State plan.
                                             that the State track and maintain the                   add optional 1905(a) medical services.
                                             total number of individuals that have                   However, if such changes are done for                     Comment: One commenter asked for
                                             voluntarily enrolled in a benchmark                     the purpose of coercing exempt                         clarification on whether the benchmark
                                             benefit plan and the total number of                    individuals to enroll in benchmark                     or benchmark-equivalent benefit
                                             individuals that have elected to                        plans, such action may not be consistent               packages would apply to ‘‘unqualified
                                             disenroll from the benchmark benefit                    with the requirement that exempt                       individuals’’ who fall under the ‘‘exempt
                                             plan.                                                   individuals must be permitted to make                  category’’ and who could be offered
                                                Comment: One commenter believed                      a fully voluntary decision to enroll in a              optional enrollment in a benchmark
                                             that the rule should describe the level                 benchmark plan.                                        benefit package.
                                             of detail required in the State’s                          Comment: Another commenter                             Response: We wish to clarify that
                                             description of the difference between                   believed CMS should require States to                  unqualified individuals (aliens who are
                                             State Plan benefits and benchmark-                      institute expedited processes to                       not lawfully admitted for permanent
                                             equivalent plan benefits because the                    transition out of benchmark plans those                residence in the United States or
                                             commenter believed it is important that                 individuals who become eligible for                    otherwise do not meet the Medicaid
                                             there be a detailed, written comparison.                exempted categories.                                   eligibility requirements for aliens) for
                                                Response: We agree with the                             Response: We agree with the                         example, aliens who are residing in the
                                             commenter on the importance of the                      commenter that States should provide                   U.S. illegally, are exempt individuals
                                             benefit comparison. We have required                    for timely transition of individuals if                who cannot be mandatorily enrolled in
                                             that if the State chooses to offer                      they become eligible for exempt                        benchmark plans because in most cases
                                             benchmark or benchmark-equivalent                       categories and thus are not required to                they are only eligible for emergency
                                             benefit options to individuals exempt                   be mandatorily enrolled in a benchmark
                                                                                                                                                            services under Medicaid.
                                             from mandatory enrollment such                          plan. Congress clearly identified
                                             individuals must be given, prior to                     individuals who are exempt from                           Unqualified or undocumented
                                             benchmark enrollment, a comparison of                   mandatory enrollment in benchmark or                   individuals who are otherwise eligible
                                             traditional State plan benefits and the                 benchmark-equivalent plans.                            for Medicaid (for example, meet income
                                             benefits offered in the benchmark or                       As mentioned previously, we have                    or residency requirements) are only
                                             benchmark-equivalent benefit package,                   revised the final rule at § 440.320 to                 covered for emergency medical services
                                             as well as any differences in cost                      require that States inform exempt                      under section 1903(v) of the Act.
                                             sharing. In order for exempt individuals                individuals that they may disenroll at                 Generally, the determination that such
                                             to make an informed choice, the                         any time and provide them with                         an individual has received an
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             information must be fully detailed by                   information about the disenrollment                    emergency medical service is made
                                             the State in a format that is                           process. We have also revised § 440.320                retrospectively by the State. Therefore,
                                             understandable by the beneficiary.                      to require that disenrollment requests be              it is unlikely that a State would decide
                                                Comment: A commenter believed                        acted upon promptly and that States                    to offer the benchmark or benchmark-
                                             CMS should prohibit States from                         have a process in place to ensure full                 equivalent benefit option for these
                                             implementing procedures that make it                    access to standard Medicaid State plan                 individuals, even if enrollment were
                                             more difficult for beneficiaries to stay in             services while any disenrollment                       voluntary.


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00018   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                        23085

                                             G. Section 440.330 Benchmark Health                     Additionally, States will be providing to              (1) Prevent unwanted pregnancies, (2)
                                             Benefits Coverage                                       CMS any other information that would                   safely space pregnancies in the interest
                                                Comment: A few commenters                            be relevant in making a determination                  of the mother and child’s health, and (3)
                                             questioned the coverage standards of a                  that the proposed coverage would be                    keep women in the workforce.
                                             Secretary approved benefit package.                     appropriate for the proposed                           Furthermore, the commenters believed
                                             They contended that under this option,                  population. In considering Secretary-                  that birth control enables preventive
                                             CMS could approve coverage of any                       approved coverage, we will review                      behaviors and allows for the early
                                             kind, one that may include or exclude                   individual State designs on a case-by-                 detection of disease by getting women
                                             any benefits the State chooses. They                    case basis. To the extent that State                   into doctor’s offices for regular health
                                             asserted that this failure to recognize                 designs deviate from the other options                 screenings.
                                                                                                     for benchmark coverage (for example,                      One commenter believed that the
                                             any minimum set of required benefits in
                                                                                                     State employees coverage, etc.) or                     legislation authorizes the Secretary to
                                             Medicaid could limit access to critical
                                                                                                     traditional Medicaid State plan                        approve benchmark plans that provide
                                             health care services. They argued that                                                                         ‘‘appropriate coverage for the population
                                                                                                     coverage, we will consider the
                                             allowing States even greater flexibility,                                                                      proposed to be provided that coverage.’’
                                                                                                     information provided as a result of the
                                             by not requiring that coverage meet                                                                            Similarly, the legislation requires
                                                                                                     public input process and any other
                                             benchmark levels, is inappropriate and                                                                         benchmark-equivalent coverage to
                                                                                                     information States submit that would be
                                             is likely to result in more beneficiaries                                                                      include ‘‘other appropriate preventive
                                                                                                     relevant to a determination that the
                                             going without health care services until                                                                       services, as designated by the
                                                                                                     proposed coverage would be
                                             they become sick and require emergency                                                                         Secretary.’’ Coverage offered to women
                                                                                                     appropriate for the proposed
                                             treatment.                                              population.                                            of reproductive age cannot be
                                                Another commenter agreed and stated                     We believe that Secretary-approved                  considered ‘‘appropriate’’ if it excludes
                                             that the proposed rule says, ‘‘Secretary-               coverage can be appropriate to meet the                coverage of family planning services
                                             approved coverage is any other health                   needs of the targeted population                       and supplies.
                                             benefits coverage that the Secretary                    provided that coverage. To date, the                      Some commenters asserted that
                                             determines * * * provides appropriate                   majority of the approved benchmark                     permitting some plans to exclude
                                             coverage for the population proposed to                 plans are Secretary-approved                           coverage of family planning runs
                                             be provided this coverage.’’ The                        benchmark plans and most of these                      directly counter to three of the major
                                             commenter finds this statement                          include not only all regular Medicaid                  goals articulated by the legislation’s
                                             troublesome. This provision gives the                   State plan services but provide for                    supporters: reducing Medicaid costs,
                                             Secretary the wide discretion to approve                additional services like disease                       promoting personal responsibility and
                                             a number of plans that are more flexible                management and/or preventive services.                 improving enrollees’ health.
                                             than the benchmark plan requirements                       Comment: Some commenters believed                      Other commenters believed that
                                             as articulated in this rule. This                       that to allow States to establish                      approximately half of all pregnancies in
                                             provision would give States the option                  alternative health benefit programs that               the United States are unplanned and
                                             to craft qualifying plans that include or               do not include family planning services                there is a strong correlation between
                                             exclude any benefits that the State                     is counter-productive to ensuring the                  unintended pregnancies and failure to
                                             chooses.                                                health of Americans and maintaining                    obtain timely prenatal care. They stated
                                                The commenters urged CMS to                          the sustainability of the Medicaid                     that guaranteeing coverage of family
                                             remove this fourth option for Secretary-                program. Also, a benchmark or                          planning services for women enrolled in
                                             approved benchmark packages from the                    benchmark-equivalent plan would not                    Medicaid benchmark plans increases
                                             proposed rule.                                          be appropriate for individuals of                      the likelihood that these women will be
                                                Response: The statute provides States                childbearing age if it did not include                 under the care of a health professional
                                             with the option of Secretary-approved                   access to family planning services. The                before pregnancy, and that when they
                                             coverage, and we believe we have                        commenter believed that no health                      do become pregnant they will obtain
                                             provided for sufficient protections to                  benefits package would be ‘‘appropriate’’              timely prenatal care as recommended by
                                             ensure that this option will be                         for individuals of childbearing age if it              the American College of Obstetricians
                                             consistent with the statutory purpose of                did not include access to family                       and Gynecologists.
                                             meaningful health benefits coverage                     planning services and supplies, and                       The commenters urged the
                                             while also allowing State flexibility. In               asked CMS to revise the proposed rule                  Department to revise § 440.330 to clarify
                                             this final rule, we have articulated the                to clarify that, in order to be considered             that in order for Secretary-approved
                                             general standard that Secretary-                        ‘‘appropriate,’’ a benchmark or                        coverage to be considered appropriate
                                             approved coverage must be appropriate                   benchmark-equivalent plan must                         coverage for women of reproductive age,
                                             coverage to meet the needs of the                       include coverage of family planning                    it must include family planning services
                                             population provided that coverage. The                  services and supplies.                                 and supplies. In addition, the
                                             regulations also provide a number of                       The commenter also urged CMS to                     commenters urged the Department to
                                             documentation requirements so that                      amend the rule to allow beneficiaries to               modify § 440.335 to designate family
                                             CMS can determine that this standard                    disenroll from any such alternative                    planning services and supplies as a
                                             has been met. States are required to                    benefit plan and reenroll in traditional               required preventive service that must be
                                             submit a full description of the                        Medicaid if the plan does not cover                    included in all benchmark-equivalent
                                             proposed coverage. The State must                       family planning services and supplies.                 plans offered to women of reproductive
                                             include a benefit-by-benefit comparison                    Several commenters noted that family                age.
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             of the proposed plan to one or more of                  planning is basic preventive health care                  Response: If one of the statutorily-
                                             the three benchmark plans specified in                  for women and that ensuring a woman’s                  specified benchmark packages (that is,
                                             § 440.330 or to the State’s standard full               freedom of choice is critical in the                   FEHB, State Employees plan, and
                                             Medicaid coverage package under                         delivery of these services. The                        commercial HMO plan) did not contain
                                             section 1905(a) of the Act, as well as a                commenters stated that birth control,                  family planning services and supplies,
                                             full description of the population that                 the main component of family planning                  the statute permitted States to base an
                                             would receive the coverage.                             coverage, is the most effective way to:                alternative benefit package on that


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00019   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23086                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             specific benchmark plan. CMS had no                     otherwise covered by Medicaid or a                     individuals would get 75 percent of the
                                             authority to disapprove the use of a                    standard benchmark plan. The                           value of the benefit; they did not intend
                                             statutorily-specified benchmark plan as                 commenters stated that this rule does                  to reduce the value of this benefit
                                             the basis for an alternative benefit                    not permit this. CMS should allow                      through cost-sharing limitations.
                                             package. However, at the time that this                 States to submit proposals that include                   Response: We agree that clarification
                                             regulation was being revised the Patient                other services and judge the overall plan              is needed in terms of using actuarial
                                             Protection and Affordable Care Act                      proposed by the State to assess its                    methods to further reduce benefits
                                             (PPACA), (Pub. L. 111–148), had not yet                 efficiency.                                            because of cost-sharing limits. We have
                                             been enacted. That law has now                             Response: Section 1937 provides that                specified in § 440.340 that, as a
                                             amended section 1937(b) of the Act to                   benchmark-equivalent or Secretary-                     condition of approval of benchmark-
                                             add additional requirements affecting                   approved plans can be offered as                       equivalent coverage, States must
                                             benchmark and benchmark-equivalent                      benchmark plans, so long as the                        provide an actuarial report with an
                                             coverage, including the requirements for                identified basic services are provided as              actuarial opinion that the benchmark-
                                             coverage of family planning services                    part of the benchmark-equivalent                       equivalent coverage meets the actuarial
                                             and supplies. We intend to issue a                      benefits and the benefit package is                    requirements for coverage specified in
                                             second final rule implementing the                      appropriate to meet the needs of the                   § 440.335. We have also specified in
                                             changes made by PPACA with a                            population it serves for Secretary-                    § 440.340 that the actuarial report
                                             shortened effective date to bring the                   approved coverage. The rule is                         must—
                                             provisions of this regulation into                      consistent with the statute. The rule                     • Be prepared by a member of the
                                             conformity with the statute.                            provides that the scope of a Secretary                 American Academy of Actuaries and
                                                Consequently, we are revising                        approved health benefits package or any                must meet the standards of this
                                             § 440.375 to update the title and revise                additional benefits will be limited to                 Academy;
                                             the regulation at this section to indicate              benefits within the scope of the                          • Use generally accepted actuarial
                                             that States can provide benchmark or                    categories available under a benchmark                 principles and methodologies of the
                                             benchmark-equivalent coverage to                        coverage package or the standard full                  Academy, standard utilization and price
                                             individuals without regard to the                       Medicaid coverage under section                        factors, and a standardized population
                                             requirements relating to the scope of                   1905(a) of the Act. This provision                     representative of the population
                                             coverage that would otherwise apply                     allows States flexibility to offer                     involved;
                                             under traditional Medicaid benefit                      additional health care services that                      • Use the same principles and factors
                                             packages. The scope of coverage would                   would not otherwise be offered.                        in analyzing the value of different
                                             still need to be consistent with the                    Additional services are limited to those               coverage (or categories of services)
                                             requirements for the scope of coverage                  in categories offered under a benchmark                without taking into account differences
                                             contained in this subpart, which are                    plan or section 1905(a) of the Act                     in coverage based on the method of
                                             based on the statutory benchmark or                     because section 1937 of the Act did not                delivery or means of cost control or
                                             benchmark-equivalent coverage                           expressly authorize coverage beyond the                utilization use;
                                             provisions.                                             defined scope of medical assistance, and                  • Indicate if the analysis took into
                                                With respect to Secretary-approved                   these limits ensure that additional                    account the state’s ability to reduce
                                             coverage, we agree with the commenters                  services will be of the type generally                 benefits because of the increase in
                                             that if such a benchmark benefit plan is                considered as health care services.                    actuarial value of health benefits
                                             provided to individuals of child bearing                                                                       coverage offered under the State plan
                                             age that does not include family                        H. Section 440.335 Benchmark-                          that results from the limitations on cost
                                             planning services and supplies, it would                Equivalent Health Benefits Coverage                    sharing under that coverage;
                                             not be appropriate to meet the needs of                   Comment: One commenter urged                            • Select and specify the standardized
                                             the population it serves and would have                 CMS to clarify that plans cannot use                   set of utilization and pricing factors as
                                             to therefore include these services.                    actuarial methods that further reduce                  well as the standardized population;
                                             Additionally, if a non-Secretary                        benefits because of cost-sharing limits.               and
                                             approved benchmark plan such as a                         Another commenter noted that the                        • Provide sufficient detail to explain
                                             commercial HMO plan does not include                    preamble of the proposed rule indicates                the basis of the methodologies used to
                                             family planning services and supplies,                  that even if the benchmark plan has 50                 estimate the actuarial value.
                                             States have the option of adding family                 percent coinsurance, the State would                      In considering the actuarial value, we
                                             planning services to the benchmark, at                  have to ensure that cost sharing does not              expect that the States and the actuaries
                                             the enhanced FMAP rate established for                  exceed the applicable limits in                        making the determination of actuarial
                                             these services.                                         Medicaid, which are substantially                      equivalence will account for changes in
                                                With respect to benchmark-equivalent                 lower.                                                 cost sharing between the benchmark-
                                             coverage in § 440.335, we have added                      However, § 440.340 specifies that the                equivalent plan and the benchmark plan
                                             family planning services and supplies as                actuarial report ‘‘should also state if the            as well as account for any differences in
                                             required services. In addition we have                  analysis took into account the state’s                 income and assets between Medicaid
                                             added emergency services as other                       ability to reduce benefits because of the              beneficiaries and the enrollees in the
                                             required appropriate preventive services                increase in actuarial value of health                  benchmark plan. Cost sharing for the
                                             designated by the Secretary, consistent                 benefits coverage offered under the State              Medicaid benchmark-equivalent plan is
                                             with the strong emphases the Medicaid                   plan that results from the limitations on              still subject to the limitations set forth
                                             statute places on these preventive                      cost sharing * * * under that coverage.’’              in this rule and in sections 1916 and
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             services.                                               The commenter strongly urged CMS to                    1916A of the Act. The determination of
                                                Comment: Other commenters believed                   clarify that this language does not allow              actuarial equivalence should provide an
                                             that one reason States may wish to                      States to reduce mental health benefits                aggregate actuarial value that is at least
                                             design a plan under the option for                      below 75 percent of the value of the                   equal to the value of one of the
                                             benchmark-equivalent or Secretary-                      benchmark benefits because there are                   benchmark benefit packages, or if
                                             approved plans is to offer beneficiaries                lower co-payments in the benchmark-                    prescription drugs, mental health
                                             important services that are not                         equivalent plan. Congress intended that                services, vision and/or hearing services


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00020   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                          23087

                                             are included in the benchmark plan, an                  might be considered medically                          services; physicians’ surgical and
                                             aggregate actuarial value that is at least              necessary.                                             medical services; laboratory and x-ray
                                             75 percent of the actuarial value of                       Furthermore, while all services                     services; well-baby and well-child care
                                             prescription drugs, mental health                       described under section 1905(a) of the                 including age-appropriate
                                             services, vision and/or hearing services                Act are provided based on medical                      immunizations; and other appropriate
                                             of one of the benchmark benefit                         necessity, not all of those services are               preventive services. We have also
                                             packages. Changes to the benchmark-                     considered mandatory Medicaid                          specified the inclusion of emergency
                                             equivalent plans, including changes in                  services that States must include in the               services, and within the context of
                                             the cost-sharing structure that would                   standard Medicaid plan. Prescription                   preventive services, family planning
                                             result in expected benefit amounts less                 drugs, certain mental health services,                 services and supplies, but have left
                                             than under the benchmark plan or less                   vision services, and hearing services are              States with the flexibility to define other
                                             than 75 percent of the actuarial value of               not mandatory services under the State                 appropriate preventive services.
                                             prescription drugs, mental health                       plan for adults. The DRA specifies that                  It is important to note, however, that
                                             services, vision and/or hearing services,               if coverage for prescription drugs,                    States, at their option, can provide
                                             would not be allowed under this rule.                   mental health, vision and/or hearing is                additional services to benchmark or
                                                Comment: Several commenters note                     provided in the benchmark plan, the                    benchmark-equivalent plans. The
                                             that the standard for adopting a                        benchmark-equivalent plan must                         inclusion of rehabilitation services may
                                             benchmark-equivalent coverage package                   provide at least 75 percent of the                     be appropriate for some populations as
                                             is set at 75 percent of the actuarial value             actuarial value of the coverage. If                    determined by the State based on the
                                             of that category of services in the                     coverage is not provided under the                     requirements of the population utilizing
                                             benchmark plan and wants to                             benchmark plan, the benchmark-                         the benchmark plan. Additional services
                                             understand if the percentage is set in                  equivalent plan is also not required to                are discussed in § 440.360 of this rule.
                                             statute. The commenters believe that if                 provide the coverage. In calculating the                 We did not receive any additional
                                             this percentage is not a statutory                      actuarial value of the benchmark-                      comments to § 440.340, Actuarial report.
                                             provision, it would be important to                     equivalent, the actuarial value would be               Therefore, in this final rule, § 440.340
                                             describe the basis for this standard.                   calculated based only on the services                  will be adopted as written in the
                                                                                                     included in the specified benchmark                    proposed rule of February 22, 2008.
                                                Response: The DRA provides for this
                                             standard. Section 1937(b)(2)(C) of the                  plan and not calculated based on                       I. Section 440.345 EPSDT Services
                                             Act specifies that the benchmark-                       services that are not included in that                 Requirement
                                             equivalent coverage with respect to                     plan. This rule is consistent with the
                                                                                                     statutory provision.                                      Comment: Some commenters
                                             prescription drugs, mental health                                                                              supported the proposed regulation that
                                                                                                        Comment: Some commenters
                                             services, vision services, and/or hearing                                                                      would require individuals to first seek
                                                                                                     questioned how the State will assure the
                                             services must have an actuarial value                   aggregate actuarial value is equivalent if             coverage of EPSDT services through the
                                             equal to at least 75 percent of the                     there is lesser coverage in prescription               benchmark or benchmark-equivalent
                                             actuarial value of the coverage of that                 drugs, mental health, vision, and/or                   plan before seeking coverage of services
                                             category of services in the benchmark                   hearing services.                                      through wrap-around benefits. Some
                                             plan. We have maintained this standard                     Response: Section 1937(b)(2)(C) of the              commenters believed that when
                                             in the rule consistent with the statutory               Act specifies that, in considering a                   individuals need to access additional
                                             provision.                                              benchmark-equivalent benefit, if                       services as a wrap-around either for
                                                Comment: One commenter requested                     prescription drugs, mental health,                     children or adults, States should be
                                             that benchmark-equivalent plans be                      vision, and/or hearing are provided in                 required to ensure they continue to be
                                             required to provide the full continuum                  the benchmark plan, the benchmark-                     able to receive services from the same
                                             of care including the care required by                  equivalent must provide at least 75                    provider.
                                             individuals with cancer.                                percent of the actuarial value of that                    Response: It is important for
                                                Another commenter pointed out that                   coverage. This section specifies the                   individuals to receive services from the
                                             the benchmark-equivalent plans are                      minimum coverage levels but does not                   same provider whenever possible and
                                             allowed to provide 75 percent of the                    specify the maximum level. Thus, States                we believe that an individual’s
                                             actuarial value of mental health and                    have the option to cover these services                physician is in the best position to
                                             prescription drugs. The commenter is                    at higher than 75 percent of the actuarial             ‘‘manage’’ an individual’s care. If an
                                             concerned that if the plan used as a                    value. To assure that the aggregate                    individual is entitled to additional
                                             benchmark does not cover mental health                  actuarial value is equivalent, we                      services, the treating physician should
                                             treatment or prescription drugs, the new                required in § 440.340 that, as a                       be responsible for providing and/or
                                             Medicaid benefit package does not have                  condition of approval of benchmark-                    coordinating the individual’s care and
                                             to provide this coverage.                               equivalent coverage, States must                       should be aware of any additional
                                                Other commenters are concerned                       provide an actuarial report that                       services the individual needs. To ensure
                                             about language indicating that a                        provides, among other things, sufficient               that individuals under the age of 21
                                             benchmark-equivalent coverage package                   detail as to the basis of the                          receive full EPSDT services we revised
                                             is not required to include coverage for                 methodologies used to estimate the                     § 440.345 to require States to not only
                                             prescription drugs, mental health                       actuarial value of the benchmark-                      include a description of how additional
                                             services, vision services, or hearing                   equivalent coverage.                                   benefits will be provided, but also how
                                             services. The commenter believed all of                    Comment: Another commenter                          access to additional benefits will be
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             these services are necessary medical                    suggested that rehabilitation services                 coordinated and how beneficiaries and
                                             services.                                               should be added to the list of services                providers will be informed of these
                                                Response: Section 1937 of the Act                    included at § 440.335.                                 processes.
                                             does not specifically require that                         Response: The DRA specifies that                       Comment: Some commenters objected
                                             benchmark or benchmark-equivalent                       benchmark-equivalent coverage must                     to the provision in the proposed rule
                                             plans provide a full continuum of care,                 include certain basic services; that is,               that stipulates that individuals must
                                             nor does it guarantee all services that                 inpatient and outpatient hospital                      first seek coverage of EPSDT services


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00021   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23088                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             through the benchmark plan before                       requiring States to explain, in detail,                benchmark or benchmark-equivalent
                                             seeking coverage of these services                      how a family will be informed of their                 plan) to assure that all EPSDT services
                                             through wrap-around benefits. These                     rights under EPSDT once they are                       are available to eligible individuals. We
                                             commenters asserted that Congress                       enrolled in a benchmark plan and to                    are providing clarification here in
                                             intended to allow States the option of                  explain the specific process the State                 response to the comment; however, we
                                             providing these benefits directly to                    will then go through to approve or                     are not revising the regulation text,
                                             Medicaid beneficiaries or to provide                    disapprove these services. States should               since the language in § 440.345 clearly
                                             benefits in whole or in part by the                     also explain timelines for consideration               indicates that this is a requirement
                                             benchmark provider. They indicated                      of EPSDT requests in emergency, urgent                 rather than a choice.
                                             that CMS provides no justification as to                and routine cases.                                        Comment: One commenter stated that
                                             why children must first wrestle with the                   The commenter goes on further to say                the rule was silent on the requirement
                                             administrators of the benchmark benefit                 the preamble to the proposed rule                      that the state provide information in
                                             package before accessing EPSDT                          stated, ‘‘the State may provide wrap-                  plain language that is understood by the
                                             services. One commenter asked that the                  around * * * under such plan.’’ The                    individual, parent or guardian including
                                             rule be amended to eliminate the                        commenter urged that CMS clarify that                  clear instructions on how to access
                                             requirement that a family first seek                    the word ‘‘may’’ should be replaced with               EPSDT services not provided by the
                                             coverage of EPSDT services through the                  ‘‘must’’ because the word ‘‘may’’                      benchmark plan and how to disenroll.
                                             benchmark plans.                                        inaccurately suggested that States are                    Response: We agree that it is
                                                Response: We believe that children                   not required to provide these services.                important that individuals be provided
                                             enrolled in a benchmark benefit plan                    The commenter noted that, in other                     with clear instructions in plain language
                                             should have a medical provider that                     areas of the proposed rule, CMS                        on how to access EPSDT services not
                                             serves as the ‘‘medical home’’ for the                  correctly stated that EPSDT services                   provided by the benchmark plan and
                                             child and that this medical provider                    must wrap-around benchmark plans.                      how to disenroll. This is already
                                             will coordinate the child’s care and                       Response: We agree that States should               required by the EPSDT outreach
                                             facilitate access to specialists and                    be required to inform families of their                provisions of section 1902(a)(43) of the
                                             necessary support services.                             rights under EPSDT. The commenter is                   Act, which are applicable to alternative
                                                It is the responsibility of the State                correct that children enrolled in                      benefit packages. To the extent that
                                             Medicaid program to assure that                         benchmark or benchmark-equivalent                      alternative benefit packages are
                                             individuals enrolled in benchmark and                   plans may be entitled to additional                    delivered through managed care plans,
                                             benchmark-equivalent benefit plans                      services. It should be noted that                      States must also comply with managed
                                             receive EPSDT services that can be                      CHIPRA underscored that full EPSDT                     care rules at 42 CFR part 438. According
                                             accessed in the most beneficial and                     services must be provided. Therefore,                  to § 438.10, information provided must
                                             seamless manner possible, and that                      we are clarifying that States must ensure              be in an easily understood language and
                                             individuals under 21 and their parent,                  that information is provided to all                    format.
                                             guardian or care giver are informed and                 EPSDT eligibles and/or their families                     Comment: One commenter noted that
                                             understand how and where to gain                        about the benefits of preventive health                proposed § 440.350 failed to specify that
                                             access to these services. We therefore                  care, what services are available under                under the employer-sponsored
                                             revised § 440.345 by removing the                       the EPSDT benefit, where and how to                    insurance plan option States must still
                                             requirement that individuals must first                 access those services, that transportation             ensure that children have access to the
                                             seek coverage of EPSDT services                         and scheduling assistance are available,               wrap-around EPSDT benefit. This
                                             through the benchmark plan before                       and that services are available at no                  section should be amended to note this
                                             seeking coverage of these services                      cost. This is consistent with the                      requirement.
                                             through additional benefits.                            requirements of section 1902(a)(43)(A)                    Response: The requirement to provide
                                             Additionally, to further ensure that                    of the Act and current policy outlined                 EPSDT benefits to children under the
                                             these individuals have access to the full               in Section 5121 of the State Medicaid                  age of 21 applies to benchmark and
                                             EPSDT benefit, we revised the                           Manual. Information must be given to                   benchmark-equivalent coverage. We
                                             requirement to include a description of                 individuals no later than within 60 days               have provided that States can offer
                                             how the additional benefits will be                     of the individual’s initial Medicaid                   premium assistance for employer
                                             provided, how access to additional                      eligibility determination, and annually                sponsored insurance if the insurance is
                                             benefits will be coordinated and how                    thereafter if they have not utilized                   considered a benchmark or benchmark-
                                             beneficiaries and providers will be                     EPSDT services. We believe most States                 equivalent plan. Additionally, we have
                                             informed of these processes. States must                have booklets to inform individuals of                 indicated in § 440.350(b) that the State
                                             ensure that information is given to the                 their benefits, rights, responsibilities,              must assure that employer sponsored
                                             providers either through the State or                   etc. This information is typically                     plans meet the requirements of
                                             through the managed care entity in                      presented to families by the eligibility               benchmark or benchmark-equivalent
                                             order to ensure that providers are aware                worker at the time of application and/                 coverage, including the economy and
                                             of the child’s right to additional                      or sent to individuals as part of an                   efficiency requirements at § 440.370. By
                                             services, as necessary, through the                     enrollment packet from the managed                     requiring that employer sponsored plans
                                             EPSDT benefit so that they can assist                   care plan. These types of documents                    meet the requirements of benchmark or
                                             individuals with accessing necessary                    must clearly explain the benchmark and                 benchmark-equivalent coverage, and
                                             care.                                                   additional benefits available to EPSDT                 given that benchmark or benchmark-
                                                Comment: One commenter believed                      eligibles under the age of 21.                         equivalent coverage must provide
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             that families are unlikely to realize that                 Additionally, we agree with the                     EPSDT to children under the age of 21
                                             their children have access to more                      commenter that the word ‘‘may’’ was                    either as part of or in addition to the
                                             coverage than that provided through the                 inaccurate in the preamble to the                      benchmark or benchmark-equivalent
                                             benchmark. Even if they understood,                     proposed rule. The law specifically                    plan, we are requiring that any
                                             they may not know how to request such                   requires States to provide additional                  employer sponsored insurance coverage
                                             a service. The commenter suggested that                 services (if the full range of EPSDT                   provide EPSDT services to children
                                             this section be strengthened by                         services is not provided as part of the                under the age of 21. We believe this is


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00022   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                          23089

                                             clear in the regulation, so we have not                 sponsored insurance, and the premium                     Response: Section 1937(a)(1)(C) of the
                                             revised the regulation text in this regard.             payments would be considered medical                   Act provides that additional benefits are
                                                Comment: Another commenter                           assistance. The requirement for children               options that can be added by the State
                                             believed that limiting the mandatory                    under the age of 21 to receive EPSDT                   to benchmark or benchmark-equivalent
                                             EPSDT benefit to children under age 19                  either as an additional service or as part             coverage. Any services that are added
                                             rather than under age 21 denies 19 and                  of the benchmark coverage would still                  do not need to include all State plan
                                             20 years olds access to critical health                 be applicable. The premium payments                    services; however, these additional
                                             care services. The commenter stated that                and any other cost-sharing obligations                 services must be coverable under the
                                             this provision is inconsistent with the                 by beneficiaries would be subject to the               benefit categories under the benchmark
                                             title XIX definition of EPSDT. Removing                 premium and cost-sharing requirements                  plan or under section 1905(a) of the Act.
                                             EPSDT for 19 and 20 years olds may                      outlined in sections 1916 and 1916A of                   The only requirement for additional
                                             exacerbate existing health disparities for              the Act, including the requirement that                services is at section 1937(a)(1)(A)(ii) of
                                             minority adolescents, compromise 19                     cost sharing not exceed the aggregate                  the Act, which provides that if children
                                             and 20 years olds’ ability to transition                limit of 5 percent of the family’s                     under the age of 21 are receiving
                                             successfully into adulthood, and                        income, as applied on a monthly or                     services in a benchmark or benchmark-
                                             impede identification of physical and                   quarterly basis specified by the state.                equivalent benefit plan, they are entitled
                                             mental conditions.                                         If the employer plan is economical                  to EPSDT services as defined in section
                                                Response: Section 611 of CHIPRA                      and efficient, States have the flexibility             1905(r) of the Act and so must receive
                                             raised the age for mandatory EPSDT                      to take advantage of the coverage,                     medically necessary services consistent
                                             coverage from 19 to 21 years of age. We                 without requiring a uniform employer                   with EPSDT either as services provided
                                             have changed the regulation text                        contribution. It is likely that a                      in the benchmark or as additional
                                             accordingly.                                            substantial employer contribution                      services to the benchmark plan.
                                                Comment: One State Medicaid official                                                                          We have further provided in § 440.330
                                                                                                     would be necessary in order to meet the
                                             suggested, instead of the current                                                                              that Secretary-approved coverage can be
                                                                                                     economy and efficiency requirement.
                                             language in the published proposed rule                                                                        offered as benchmark coverage,
                                                                                                     States must identify the specific
                                             on (73 FR 9727) of the Federal Register                                                                        consistent with the DRA. This coverage
                                                                                                     minimum contribution level that they
                                             regarding EPSDT, the following                                                                                 must be appropriate to meet the needs
                                                                                                     are requiring of participating employers.
                                             amendment be made to be consistent                                                                             of the targeted population. We have
                                             with Federal laws: ‘‘(a) The State must                    We have not approved any Medicaid                   required that States wishing to opt for
                                             ensure access to EPSDT services,                        benchmark programs at this time that                   Secretary-approved coverage should
                                             through benchmark * * * for any child                   provide for employer sponsored                         submit a full description of the
                                             under 19 years of age eligible under the                coverage; however, we have approved                    proposed coverage and include a
                                             State plan in a category under section                  section 1115 demonstrations in which                   benefit-by-benefit comparison of the
                                             1902(a)(10)(A) of the Act.’’                            States have provided premium                           proposed plan to one or more of the
                                                Response: We have revised the rule to                assistance payments and employer                       other benchmark options listed in this
                                             effectuate the clarification provided by                sponsored insurance coverage to                        section or to the State’s standard full
                                             section 611(a)(1)(C) and 611(a)(3) of                   Medicaid beneficiaries. For these                      Medicaid coverage package under
                                             CHIPRA which requires States to assure                  section 1115 demonstration programs,                   section 1905(a) of the Act, as well as a
                                             that children under the age of 21, rather               some States have required beneficiaries                full description of the population that
                                             than those under 19 as originally                       to provide proof of premium assistance                 would be receiving the coverage. In
                                             specified in the DRA, have access to the                payments. Then, after such proof is                    addition, the State should submit any
                                             full range of EPSDT services.                           received, the state reimburses the                     other information that would be
                                                                                                     beneficiary directly. Some States use a                relevant to a determination that the
                                             I. Section 440.350 Employer-                            voucher system in which they provide                   proposed health benefits coverage
                                             Sponsored Insurance Health Plans                        a monthly voucher directly to the                      would be appropriate for the proposed
                                                Comment: One commenter requested                     beneficiary for the premium payment in                 population. The scope of the Secretary-
                                             information about enrollment in                         purchasing the employer sponsored                      approved health benefits package will
                                             commercial plans and suggested a                        insurance. We are not specifying the                   be limited to benefits within the benefit
                                             discussion of how such arrangements                     way in which States operationalize                     categories available under a benchmark
                                             might actually be operationalized; that                 employer sponsored insurance                           coverage package or under the standard
                                             is, how premiums would be paid and                      benchmark plans; however, we provide                   full Medicaid coverage package under
                                             tracked, and the level of Medicaid                      this information for consideration.                    section 1905(a) of the Act.
                                             contribution to such plans.                                Comment: One commenter supported                      To the extent that a benchmark
                                                Response: Benchmark or benchmark-                    the inclusion of wrap-around services in               coverage plan that is used as the
                                             equivalent benefit coverage may be                      general and wrap-around services for                   comparison for the Secretary-approved
                                             offered through employer sponsored                      employer sponsored insurance plans as                  benchmark plan provides for market
                                             insurance health plans for individuals                  an option available to States, but did not             innovations such as high deductible
                                             with access to private health insurance.                support a requirement for additional                   health plans, health savings accounts,
                                             If an individual has access to employer                 wrap-around services. The commenter                    consumer-directed plans, and/or
                                             sponsored coverage and that coverage is                 requested that language be added to                    wellness plans, we would consider
                                             determined by the State to offer a                      describe the permissibility of various                 these on a case by case basis as
                                             benchmark or benchmark-equivalent                       types of market innovations in coverage                components included in a Secretary-
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             benefit package (either alone or in                     such as high deductible plans, health                  approved benchmark option. It should
                                             addition to services covered separately                 savings accounts, consumer-directed                    be noted that CMS has approved ten
                                             under Medicaid), a State may elect to                   plans and wellness plans or that there                 State benchmark programs. Of these ten,
                                             provide premium payments on behalf of                   be language added indicating such                      eight have been approved as Secretary-
                                             the individual to purchase the employer                 market innovations are acceptable as                   approved programs. We did not receive
                                             coverage. Non-exempt individuals can                    ‘‘Secretary-approved coverage’’ through                any additional comments related to
                                             be required to enroll in employer                       a State plan amendment.                                § 440.355 ‘‘Payment of premiums.’’


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00023   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23090                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             Therefore, in this final rule, § 440.355                benchmark-equivalent benefit plans.                    contract with an FQHC, enrollees must
                                             will be adopted as written in the                       Further, it is possible that, because of               be informed that they still may receive
                                             proposed rule of February 22, 2008.                     the plan options that have been                        Medicaid covered services from FQHCs.
                                                                                                     identified by Congress as benchmark                    In the preamble and final rule, the
                                             J. Section 440.360 State Plan
                                                                                                     coverage, dental services may already be               commenter provided that CMS should
                                             Requirement for Providing Additional
                                                                                                     covered services in these plans.                       underline to the States the importance
                                             Services                                                  If the commenter is concerned that                   of full compliance with the FQHC
                                                Comment: A dental provider                           children will not receive dental                       reimbursement requirements of section
                                             indicated that the proposed rules give                  coverage, we wish to point out that                    1937(b)(4) of the Act and § 440.365. The
                                             States the ability to create new benefit                children under the age of 21 must                      commenter added that adoption of these
                                             packages tailored to different                          receive EPSDT services, including all                  recommendations is important to assure
                                             populations and that States have the                    medically necessary dental services,                   that the requirements of section
                                             flexibility to provide ‘‘wrap-around’’ and              consistent with section 1905(r) of the                 1937(b)(4) of the Act are met.
                                             ‘‘additional benefits.’’ The commenter                  Act either as part of, or as additional                  Response: We agree with the
                                             noted that CMS cited in a press release                 services to, the benchmark or                          commenters and we have required in
                                             ‘‘dental coverage’’ as an example of                    benchmark-equivalent plan. Therefore,                  § 447.365 that if a State provides
                                             ‘‘additional benefits’’ but, in the actual              medically necessary dental coverage                    benchmark or benchmark-equivalent
                                             language of the proposed rule there are                 must be provided to children under the                 coverage to individuals, it must assure
                                             no examples or reference to ‘‘dental                    age of 21 enrolled in benchmark plans                  that the individual has access, through
                                             coverage.’’ Further, the commenter                      regardless of whether or not the actual                that coverage or otherwise, to rural
                                             noted that the conference report to the                 benchmark plan includes such coverage.                 health clinic services and FQHC
                                             DRA includes guidance to States by                                                                             services and that payment for these
                                             explaining that both benchmark and                      K. Section 440.365 Coverage of Rural
                                                                                                                                                            services must be made in accordance
                                             benchmark-equivalent coverage would                     Health Clinic and Federally Qualified
                                                                                                                                                            with the payment provisions of section
                                             include ‘‘qualifying child benchmark                    Health Center (FQHC) Services
                                                                                                                                                            1902(bb) of the Act. We also agree that
                                             dental coverage.’’ The commenter also                      Comment: One commenter was                          individuals always have access to FQHC
                                             noted that in the context of employer                   concerned that the proposed rule                       services, even if the State does not
                                             group health plans, stand-alone dental                  stipulated that States with benchmark                  contract with an FQHC to provide such
                                             arrangements are very often offered as a                plans need only assure that these                      services, and we encourage States to
                                             supplemental coverage that is separate                  individuals have access through such                   contract with FQHCs as providers.
                                             from medical care coverage. The                         coverage and that FQHCs are to be                        We did not receive any comments to
                                             commenter indicated that this option                    reimbursed for such services as                        § 440.370. Therefore, we will adopt
                                             would align Medicaid more closely with                  provided under the FQHC                                § 440.370 as written in the proposed
                                             private market insurance options and                    reimbursement requirements found in                    rule of February 22, 2008 with the
                                             give States more control over their                     section 1902(bb) of the Act. The                       change of the title to ‘‘Economy and
                                             Medicaid benefit packages.                              commenter indicated further concern                    Efficiency’’ which more appropriately
                                                The commenter requested that CMS                     that CMS did not elaborate further on                  reflects Medicaid payment principles.
                                             provide guidance to the States with                     these requirements, and particularly,
                                             respect to ‘‘additional benefits’’ such as              that it did not lay out minimum steps                  L. Section 440.375 Comparability
                                             ‘‘dental coverage.’’ The commenter                      a State must take to assure that these                    Comment: One commenter
                                             recommended the rule be amended to                      patient and health center protections are              encouraged CMS to require
                                             include an additional paragraph that                    effectively implemented. The                           comparability across traditional
                                             would provide that States have the                      commenter believed it is important that                Medicaid and Medicaid benchmark
                                             option to provide additional benefits                   the final rule and preamble make clear                 alternatives.
                                             that specifically include dental benefits               that there are minimum steps a State                      Response: The language included in
                                             that may be offered as a supplement to                  must take to be in compliance with                     the rule allowing States to offer
                                             medical care coverage.                                  these FQHC statutory requirements.                     benchmark or benchmark-equivalent
                                                Response: The DRA House                                 Specifically, the commenter asked                   health care coverage without regard to
                                             Conference Report 109–362 provided for                  that it should be clear that individuals               comparability is based on the DRA
                                             the language that benchmark or                          who are mandatorily or voluntarily                     language providing that
                                             benchmark-equivalent coverage would                     enrolled in a benchmark plan: (1)                      ‘‘notwithstanding any other provision of
                                             include ‘‘qualifying child benchmark                    Remain eligible to receive from an                     Title XIX’’ States can offer medical
                                             dental coverage.’’ The conference                       FQHC all of the services included in the               assistance to certain Medicaid
                                             agreement removed this reference. Thus,                 definition of the services of an FQHC, as              beneficiaries through benchmark or
                                             the final provisions of section 1937 of                 provided in section 1902(a)(2)(C); and                 benchmark-equivalent benefit packages.
                                             the Act include no such requirement for                 (2) must be informed that one or several               Section 611 of CHIPRA clarified and
                                             the inclusion of dental coverage as                     of the providers by whom they may                      narrowed the ‘‘notwithstanding’’
                                             additional services nor does section                    choose to be treated under this coverage               provision but did specifically mention
                                             1937 of the Act provide examples of                     is (or are) an FQHC. The commenter                     comparability.’’ Therefore, it is clear that
                                             additional coverage. The rule provides                  asserted that, to the extent these same                States may offer benchmark or
                                             that additional services do not need to                 individuals receive benchmark                          benchmark-equivalent coverage to
                                             include all State plan services but                     coverage, both the State and the                       certain specified Medicaid populations.
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             would be health benefits that are of the                benchmark plans must be encouraged to                  This regulation provision gives meaning
                                             same type as those covered under the                    contract with FQHCs as providers of                    to the statutory language permitting
                                             benchmark plan or considered to be                      services to these enrolled Medicaid                    States to offer benchmark or benchmark-
                                             health benefits under section 1905(a) of                populations. These FQHC(s) must be                     equivalent coverage to certain, but not
                                             the Medicaid statute.                                   identified by name. The commenter                      all, Medicaid populations.
                                                We do agree that dental coverage                     further stated that, in the event the                     We would note that States can design
                                             could be added to benchmark or                          benchmark plans identified do not                      disease management services without


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00024   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                         23091

                                             relying on DRA benchmark or                             long-standing policy of the Congress                   through a managed care entity may do
                                             benchmark-equivalent plans, as                          and the Medicaid program.                              so but must comply with the
                                             outlined in the March 31, 2006 State                       The commenter added that the                        requirements of section 1932 of the Act,
                                             Medicaid Director letter, which                         proposed rules would permit States to                  42 CFR part 438, and any other
                                             provided guidance on the                                deny freedom of choice of a provider for               provisions of title XIX or the regulations
                                             implementation of section 6044 of the                   managed care enrollees seeking family                  pertaining to managed care.
                                             DRA but this benchmark option offers                    planning services and supplies. The
                                                                                                     commenter argued that this provision                      Comment: One commenter requested
                                             another way for States to meet the needs
                                                                                                     lacks any basis in the statute and is                  that CMS explain the concept of
                                             of their Medicaid populations.
                                                                                                     contrary to the clear, repeated                        ‘‘selective contracting’’ and provide
                                             M. Section 440.380         Statewideness                articulated intent of Congress.                        more detail as to how this would be
                                                Comment: One commenter is                               The commenter asserted that provider                operationalized under benchmark plans.
                                             concerned that States are given the                     freedom of choice is critical because of                  Response: Selective contracting is a
                                             option to amend their State plan to                     the potentially sensitive nature of the                term usually referred to in the context
                                             provide benchmark plan coverage to                      service. The commenter argued that, if                 of section 1915(b)(4) waiver programs or
                                             Medicaid individuals without regard to                  unable to obtain confidential services                 1932(a) under the State plan. Selective
                                             statewideness. This proposed regulation                 from the provider of their choice, some                contracting provides States with the
                                             would likely result in health care                      managed care enrollees may forgo                       opportunity to contract with certain
                                             disparities among individuals living in                 obtaining family planning services                     providers, practitioners or managed care
                                             different parts of the State, has no basis              entirely. This would threaten                          entities so long as certain other criteria
                                             in the statute, and should therefore be                 beneficiaries’ access to high quality,
                                                                                                                                                            are maintained. Specifically, the State
                                             excluded from the final regulations. The                confidential reproductive health care
                                                                                                                                                            must ensure that in order to selectively
                                             commenter stated that the proposed                      and set a precedent of inequity between
                                                                                                     beneficiaries in fee-for-service programs              contract with providers, practitioners or
                                             § 440.380 should be revised to ensure                                                                          managed care entities the selective
                                             that beneficiaries across the State are                 and beneficiaries in managed care plans.
                                                                                                        The commenter noted that Congress                   process does not restrict providers in
                                             not subject to disparities in health care                                                                      emergency situations or providers of
                                                                                                     has clearly indicated that while States
                                             services.                                                                                                      family planning services and supplies;
                                                                                                     may require Medicaid beneficiaries to
                                                Response: The language included in                   enroll in managed care plans and obtain                is based on reimbursement, quality and
                                             the rule allowing for States to offer                   care from providers affiliated with those              utilization standards under the State
                                             benchmark or benchmark-equivalent                       plans, an exception should be made for                 plan; and does not discriminate among
                                             health care coverage without regard to                  individuals seeking family planning.                   classes of providers on grounds
                                             statewideness is based on the DRA                       The commenter also noted that Federal                  unrelated to their demonstrated
                                             language providing that                                 regulations at § 431.51 state, ‘‘A                     effectiveness and efficiency in providing
                                             ‘‘notwithstanding any other provision of                recipient enrolled in a primary care case              benchmark benefit packages.
                                             title XIX’’ and the more narrow and                     management system, a Medicaid MCO,
                                             explicit language in CHIPRA which                                                                                 Section 1937(a)(1) of the Act as
                                                                                                     or other similar entity will not be
                                             specifically states ‘‘Notwithstanding                                                                          amended by section 611 of CHIPRA
                                                                                                     restricted in freedom of choice of
                                             statewideness * * *’’. It is therefore                                                                         allows selective contracting through
                                                                                                     providers of family planning services.’’
                                             clear that States could offer different                                                                        benchmark or benchmark-equivalent
                                                                                                     The commenters urged the Department
                                             benchmark or benchmark-equivalent                       to revise § 440.385 to reflect that                    plans when provision of free choice of
                                             coverage to Medicaid individuals in                     provider freedom of choice for family                  providers would be directly contrary to
                                             different regions within the State. This                planning should be retained.                           efficient and effective operation of the
                                             provision also gives meaning to the                        Response: Section 1937(a)(1) of the                 proposed benchmark benefit program.
                                             language permitting States to offer                     Act, as amended by section 611 of                         Comment: One commenter noted that
                                             benchmark or benchmark-equivalent                       CHIPRA, narrowed the flexibility States                CMS should include an ‘‘any willing
                                             coverage to certain, but not all,                       have and we amended § 440.385 by                       provider’’ provision in Medicaid
                                             Medicaid populations.                                   removing the option to provide                         contracts for alternate plans that allow
                                                For example, States can test new                     benchmark benefit plans without regard                 Medicaid participating providers the
                                             benefit concepts in pilot areas before                  to the requirements for free choice of                 opportunity to continue serving those
                                             expanding the benchmark program to                      providers at § 431.51 of this chapter.                 who are required by the State to enroll
                                             the entire State. We believe that this is                  CHIPRA also made it clear that                      in a benchmark plan.
                                             consistent with Congressional intent in                 benchmark benefit programs may vary
                                             allowing flexibility regarding                          only from the requirements for                            Response: Based on changes made by
                                             statewideness for benchmark benefit                     statewideness, comparability, and ‘‘any                CHIPRA to section 1937 of the Act
                                             options.                                                other provision of this title which                    States must comply with all freedom of
                                                                                                     would be directly contrary to the                      choice requirements under title XIX
                                             N. Section 440.385         Freedom of Choice                                                                   except to the extent the State can
                                                                                                     authority under this section and subject
                                               Comment: One commenter noted that                     to subsection (E).’’ Title XIX permits                 demonstrate that freedom of choice
                                             CMS protects the free choice of                         States the option to offer Medicaid                    would be contrary to the effective and
                                             emergency services providers but failed                 through managed care entities. Thus,                   efficient implementation of a
                                             to do so for family planning services                   requiring States to comply with                        benchmark or benchmark-equivalent
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             providers. The commenter urged CMS                      Medicaid managed care statutes and                     plan. We therefore revised § 440.385 by
                                             to preserve the free choice of family                   regulations would not be directly                      striking the option for States to provide
                                             planning services providers by                          contrary to the authority of section 1937              benchmark benefit plans without regard
                                             amending the rule to include a                          of the Act. We have therefore revised                  to the requirements for freedom of
                                             provision preserving the free choice of                 the regulation at § 440.385 to clarify that            choice. This revision eliminates the
                                             family planning providers. The                          States wishing to deliver benchmark                    need to include an ‘‘any willing
                                             commenter believes that this has been a                 and benchmark-equivalent packages                      provider’’ provision.


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00025   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23092                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             O. Section 440.390 Assurance of                         benchmark plan as provided at                          the law clarifies that the authority under
                                             Transportation                                          § 440.330 (FEHB plan, State Employees                  section 1937 to deviate from otherwise
                                                In responding in this final rule to all              plan, Commercial HMO plan or                           applicable Medicaid requirements such
                                             of the comments received we took into                   Secretary-approved plan); under a                      as those specified in section 1902(a)(4)
                                             consideration the numerous remarks on                   benchmark-equivalent plan as an                        of the Act and 42 CFR 431.53, which
                                             the subject of transportation which                     additional service as provided at                      require States to assure that
                                             generally disagreed with the provision                  § 440.335; or as an additional service as              beneficiaries have access to covered
                                             in the proposed rule and the rule                       provided at § 440.360, and receive                     medical services, is limited.
                                             published December 3, 2008 that would                   Federal financial participation (FFP) at               Accordingly, we have revised the
                                             allow States the option to exclude non-                 the Federal matching rate designated for               regulation at § 440.390 to require States
                                                                                                     that State for covered Medicaid services               to assure necessary transportation to
                                             emergency medical transportation
                                                                                                     (FMAP rate).                                           and from providers.
                                             (NEMT) as a benefit under benchmark
                                                                                                        If transportation and transportation-                  Comment: A preponderance of
                                             and benchmark-equivalent plans. In                      related services or some portion of the                commenters disagreed with the
                                             addition to considering these comments                  transportation provided for beneficiaries              provision in the rule that would allow
                                             we now must also consider the new                       enrolled in a benchmark or benchmark-                  States the option to exclude NEMT as a
                                             CHIPRA legislation which clarifies that                 equivalent plan is not covered under                   benefit under a benchmark and
                                             the authority under section 1937 to                     section 1937 of the Act, then such                     benchmark-equivalent plan. Generally,
                                             deviate from otherwise applicable                       transportation and transportation-                     these comments were submitted by
                                             Medicaid requirements is limited.                       related services must be claimed as an                 transportation providers, medical
                                                It is true that benchmark benefit                    administrative expense at the 50 percent               providers, and Medicaid beneficiaries,
                                             packages such as Federal Employees                      Federal matching rate. If transportation               particularly Medicaid beneficiaries who
                                             Health Benefit Plan coverage, State                     and transportation-related services are                rely on dialysis treatments.
                                             Employees Health Benefit coverage, and                  claimed as a medical service under                        Most of the commenters believed that
                                             coverage offered by an HMO in the State                 section 1937 of the Act, the State must                the goals of the Medicaid program
                                             with the largest insured commercial                     adhere to the general Medicaid                         would be undermined if needy
                                             non-Medicaid population, generally do                   requirements which pertain to claiming                 individuals were unable to get to and
                                             not cover non-emergency medical                         transportation as a medical service, such              from healthcare services and such an
                                             transportation (NEMT) to and from                       as only claiming direct vendor                         option would create a barrier to care.
                                             medical providers. However, pursuant                    payments.                                              They asserted that assurance of
                                             to section 1902(a)(4) of the Act and 42                    Our responses to the following                      transportation is a vital component of
                                             CFR 431.53 there is a general                           comments received on transportation                    the Medicaid program and is of
                                             requirement that the State plan assure                  reflect the changes made by section 611                particular importance to mentally and
                                             necessary transportation to and from                    of CHIPRA, which clarifies that the                    physically disabled and elderly patients.
                                             providers for beneficiaries when needed                 authority under section 1937 to deviate                They expressed concern that vulnerable
                                             to access Medicaid covered services.                    from otherwise applicable Medicaid                     populations might not receive medically
                                             The CHIPRA amendment to the DRA                         requirements is limited and therefore                  necessary and often life sustaining
                                             made it clear that Medicaid provisions                  the assurance of transportation remains                services because of the difficulty in
                                             that are not directly contrary to the                   applicable even when the State has                     accessing needed care and provided
                                             provision of services under benchmark                   elected the section 1937 option.                       examples of the negative impact on the
                                             or benchmark-equivalent plans continue                     Comment: One commenter agreed                       Medicaid program that would be created
                                             to apply under the DRA benchmark                        with the interpretation of the                         by not assuring transportation. For
                                             provisions. Therefore, in accordance                    ‘‘notwithstanding’’ language to ‘‘bypass’’             example, patients with End-Stage Renal
                                             with the changes made to the DRA by                     the assurance of transportation,                       Disease (ESRD), would be unable to
                                             CHIPRA, and since this assurance of                     including the elimination of non-                      access dialysis services.
                                             NEMT would not directly conflict with                   emergency medical transportation                          Many of the commenters focused on
                                             the offering of benchmark or                            (NEMT). The commenter noted that the                   the impact that the proposed regulation
                                             benchmark-equivalent benefit packages                   ability of States to exclude NEMT                      would have on dialysis patients who
                                             as authorized by section 1937 of the Act,               services in their benchmark benefits is                require 3 weekly trips to and from
                                             the assurance of necessary                              evident not only from the broad                        dialysis facilities in order to survive.
                                             transportation to and from providers                    language of the statute but also from                  They noted that effective care of ESRD
                                             remains applicable when a State elects                  Congressional intent. The commenter                    patients requires meticulous
                                             the 1937 option, and regardless of                      noted that one of the stated purposes of               coordination of dialysis treatment and
                                             whether it is or is not a covered benefit               section 6044 of the DRA is to allow                    drug therapy with frequent and
                                             under a benchmark or benchmark-                         States to offer benefit packages that                  specialized care. Dialysis patients often
                                             equivalent benefit plan.                                mirror commercial packages.                            have multiple co-morbidities and,
                                                Thus, we have revised the regulation                    Response: The benchmark options                     therefore, require frequent
                                             at § 440.390 to require States to assure                that Congress specified, Federal                       transportation to multiple services. The
                                             necessary transportation to and from                    Employees Health Benefit Plan                          severity of the complications that
                                             providers for beneficiaries enrolled in                 equivalent coverage, State employees                   develop due to missed treatments is
                                             benchmark and benchmark-equivalent                      coverage, and coverage offered by an                   often life threatening. Elimination of
                                             plans, even if the plans themselves do                  HMO in the State with the largest                      transportation services would make it
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             not include transportation.                             insured commercial non-Medicaid                        very difficult and often impossible for
                                                States have several options when                     population, generally do not pay for                   beneficiaries with ESRD to consistently
                                             assuring necessary transportation for                   NEMT to and from medical providers in                  access the frequent dialysis services that
                                             beneficiaries enrolled in a benchmark or                all instances. However, section                        sustain their lives.
                                             benchmark-equivalent plan. States may                   611(a)(1)(A)(i) of CHIPRA changed the                     Many commenters stated that
                                             provide transportation and                              ‘‘notwithstanding any other provision of               individuals with physical or mental
                                             transportation-related services under a                 this title’’ language and this change in               disabilities have difficulty using public


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00026   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                         23093

                                             transportation and require specialized                  savings and increased health care                      we have revised the regulation at
                                             transportation that would otherwise not                 results. For many beneficiaries, the cost              § 440.390 to require States to assure
                                             be available should State Medicaid                      of frequent trips in specialized vehicles              necessary transportation to and from
                                             programs be allowed to stop providing                   would be unaffordable. Often                           providers. Therefore, the commenter’s
                                             transportation. For many beneficiaries,                 beneficiaries live in rural areas where                concern about the lack of transportation
                                             the cost of frequent trips in specialized               the only available transportation to and               contributing to missed appointments
                                             vehicles would be unaffordable. Often                   from medical appointments is provided                  and late appointments has been
                                             beneficiaries live in rural areas where                 through the Medicaid program. Without                  addressed.
                                             the only available transportation to and                Medicaid transportation services, many                    Comment: Many commenters stated
                                             from medical appointments is provided                   beneficiaries would be unable to access                that the possible elimination of
                                             through the Medicaid program. Without                   needed care and ultimately would                       transportation will not only decrease
                                             Medicaid transportation services, many                  require more costly services, costly                   access to healthcare but would imperil
                                             beneficiaries would be unable to access                 emergency care, and expensive                          the financial stability of ambulance
                                             needed care and ultimately would                        emergency ambulance services and/or                    services across the Emergency Medical
                                             require more costly services, costly                    expensive non-medical wheelchair van                   Services (EMS) community. EMS
                                             emergency care, and expensive                           care.                                                  providers depend on reimbursement
                                             emergency ambulance services and/or                        One commenter indicated that                        from non-emergency transports to
                                             expensive non-medical wheelchair van                    coordinating transportation would                      sustain operational costs and maintain
                                             care.                                                   reduce the cost of providing                           optimal readiness standards for
                                                Other commenters indicated that co-                  transportation. Another commenter                      emergency transports. Without adequate
                                             occurring physical health conditions                    indicated that CMS requires States to                  reimbursement from Medicaid for non-
                                             such as diabetes or heart disease, as well              comply with economy and efficiency                     emergency transports, many ambulance
                                             as mental health conditions such as                     principles in offering benchmark or                    providers, especially those in rural
                                             depression and anxiety affect an                        benchmark-equivalent benefit packages                  areas, would cease to stay in business,
                                             individual’s ability to drive.                          to Medicaid beneficiaries, but does not                causing a serious reduction in the
                                                Several commenters indicated that                    require non-emergency medical                          overall availability of ambulance
                                             people suffering with HIV/AIDS, some                    transportation in benchmark or                         services. Many commenters stated the
                                             in wheelchairs, others who are                          benchmark-equivalent plans, when                       provision would likely cause over-
                                             extremely fragile or elderly, have                      according to several studies it has been               utilization of emergency ambulance
                                             monthly office visits where they are                    proven that providing this service is                  services, since beneficiaries would need
                                             assessed and treated. To remove their                   cheaper overall and leads to better                    to rely more frequently on more
                                             only means of free transportation will                  health outcomes for Medicaid                           expensive emergency ambulance
                                             take away their compliance with                         beneficiaries.                                         transport.
                                             medical office treatment.                                  Response: CHIPRA amended section                       One commenter suggested that CMS
                                                Response: In light of these comments                 1937 of the Act by clarifying that the                 implement the same ‘‘medically
                                             and because CHIPRA amended section                      authority to deviate from otherwise                    necessary transportation’’ guidelines for
                                             1937 of the Act by clarifying that the                  applicable Medicaid requirements is                    the Medicaid program that already exist
                                             authority to deviate from otherwise                     limited and we have therefore revised                  and govern non-emergency ambulance
                                             applicable Medicaid requirements is                     the regulation at § 440.390 to require                 transportation for Medicare patients,
                                             limited, we have revised the regulation                 States to assure necessary transportation              because commercial insurance almost
                                             at § 440.390 to require States to assure                to and from providers.                                 universally uses these guidelines as the
                                             necessary transportation to and from                       Comment: One commenter suggested                    benchmark for reimbursement for non-
                                             providers. Thus, the frail, elderly,                    that this rule sets up a system that                   emergency ambulance transportation.
                                             disabled and those with ESRD will be                    would limit mileage payments to drivers                   One commenter noted that the GAO
                                             entitled to receive transportation to and               for non-emergency doctor visits. The                   has found that the current Medicare
                                             from medical providers.                                 commenter indicated that medical                       rates for ambulance transportation is on
                                                Comment: Several commenters noted                    mileage is funded in part to drivers who               average 6 percent below the cost of
                                             that elimination of the requirement to                  transport people for medical care on a                 providing care. Medicaid rates are
                                             provide transportation would actually                   non-emergency basis.                                   currently even less. Ambulance
                                             drive up Medicaid costs because                            Response: We do not understand the                  transportation is a vital service for
                                             medical visits would become less                        relevance of this comment to the                       Medicaid beneficiaries, and ambulance
                                             frequent, resulting in a higher incidence               provision of benchmark and benchmark-                  companies are currently operating
                                             of more serious and costly medical                      equivalent benefit plans and are                       under a fee schedule that does not
                                             problems, an increase in the use of                     therefore unable to respond.                           compensate them for the cost of
                                             emergency medical services, and an                         Comment: One commenter stated that                  providing that care. To further reduce
                                             increase in long term nursing home                      the number one reason that dentists and                the overall reimbursement to the
                                             admissions. A number of these                           doctors do not wish to accept Medicaid                 ambulance providers while leaving
                                             commenters cited a 2006 Cost Benefit                    patients is that Medicaid beneficiaries                benefits intact for hospitals, physicians,
                                             Analysis conducted by the Marketing                     do not show-up for appointments or are                 and labs is unfair. Ambulance transport
                                             Institute of Florida State University                   late for appointments. If CMS does not                 is a vital link between the patient and
                                             College of Business as proof of the cost                require transportation benefits, no-                   these other services, and should not be
                                             effectiveness of providing NEMT to                      shows will increase and the result will                relegated to non-payment.
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             Medicaid beneficiaries. Another                         be that fewer providers will participate                  Response: CHIPRA clarified that the
                                             commenter cited several studies that                    in Medicaid.                                           requirement to assure necessary
                                             compared Medicaid individuals                              Response: As we previously stated,                  transportation applies to benchmark and
                                             residing in States that do provide access               CHIPRA amended section 1937 of the                     benchmark-equivalent benefit plans.
                                             to NEMT. The commenter stated that                      Act by clarifying that the authority to                   With regard to the comment that CMS
                                             these studies found that access to non-                 deviate from otherwise applicable                      require for benchmark and benchmark-
                                             emergency transportation produces cost                  Medicaid requirements is limited and                   equivalent benefit plans the same


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00027   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23094                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             ambulance transportation guidelines                     should do a better job of policing the                 that, consequently, patients who receive
                                             used by commercial insurance, we                        system to reduce fraud and abuse.                      transportation under state Medicaid
                                             disagree with this comment because                         Response: The reduction of fraud and                programs are required, as a condition of
                                             there is no authority under section 1937                abuse should always be considered by                   coverage, to have no other means of
                                             of the Act to do so.                                    States when designing or implementing                  getting to or from providers of medical
                                                Comment: Many commenters                             their State Medicaid program and we                    care.
                                             indicated that the proposed rule would                  expect States to implement policies that                  Response: Because CHIPRA clarified
                                             shift financial responsibility for                      reduce fraud and abuse. CMS will                       that the requirement for States to assure
                                             Medicaid non-emergency transportation                   review the provision of these services                 necessary transportation is applicable to
                                             to non-profit and municipal fire service-               consistent with our responsibility to                  section 1937 of the Act, we revised the
                                             based emergency medical systems                         work with States to reduce fraud and                   regulation in § 440.390 to require States
                                             (EMS), ADA paratransit programs,                        abuse in the program.                                  to assure necessary transportation for
                                             beneficiaries, beneficiaries’ families,                    Comment: One commenter believed                     beneficiaries enrolled in alternative
                                             and other segments of the population                    that during the DRA process CMS                        benefit plans. Therefore, the brokerage
                                             who often do not have sufficient funds                  attempted to end the Medicaid                          program option for delivering non-
                                             to pay for trips to and from providers.                 transportation service. This attempt was               emergency medical transportation and
                                             The commenters believed that the                        turned back by Congress with the clear                 the benchmark or benchmark-equivalent
                                             proposed cuts in transportation conflict                intention that transportation was                      benefits option do not contravene each
                                             with the protections afforded to the                    essential for adequate access to health                other as the commenter suggests.
                                             disabled under the Americans with                       services and it is clear that the proposed                Comment: A few commenters stated
                                             Disabilities Act. Some commenters                       rule is contrary to the intent of                      that in the proposed rule CMS proposed
                                             stated the shifting of the financial                    Congress.                                              to create more ‘‘flexibility’’ for States by
                                             burden for Medicaid non-emergency                          Response: CMS did not attempt to end                allowing them to craft more mainstream
                                             transportation to ADA paratransit                       the requirement for States to assure                   packages like those found in the private
                                             services and local transit programs                     Medicaid non-emergency                                 health insurance market, and private
                                             without any additional funding                          transportation. On August 23, 2007,                    health plans do not offer transportation
                                             constitutes an unfunded mandate.                        CMS published a rule on the ‘‘State                    as a covered benefit for enrollees. These
                                                Response: Because CHIPRA clarified                   Option to Establish a Non-Emergency                    commenters disagreed with this
                                             that the assurance of necessary                         Medical Transportation Program’’ which                 assumption because it presumes that
                                             transportation is applicable to                         intended to enhance the ability of States              Medicaid patients are of equal financial
                                             benchmark and benchmark-equivalent                      to provide NEMT by offering an                         standing with enrollees of private health
                                             benefit plans, we revised the regulation                additional option for providing more                   care plans in their ability to assume the
                                             in § 440.390 to require States to assure                cost effective non-emergency                           cost of transportation to and from health
                                             necessary transportation. Therefore, we                 transportation as a medical service                    care services and that private health
                                             do not believe that the responsibility for              through a brokerage program.                           plans do not provide non-emergency
                                             Medicaid NEMT will be shifted to                        Furthermore, we have revised the                       ambulance transportation, when in fact
                                             municipal EMS systems, ADA                              regulation at § 440.390 to require States              they do.
                                             paratransit programs, or beneficiaries.                 to assure necessary transportation for                    Response: The changes made to
                                             Consistent with Federal regulations,                    beneficiaries enrolled in benchmark and                section 1937 of the Act by the CHIPRA
                                             States are required to assure non-                      benchmark-equivalent plans.                            legislation make it clear that regardless
                                             emergency transportation when the                          Comment: One commenter noted the                    of whether NEMT and emergency
                                             beneficiary has no other means of                       proposed rule on the ‘‘State Option to                 ambulance services are included in the
                                             transportation.                                         Establish a Non-Emergency Medical                      benchmark or benchmark-equivalent
                                                Comment: Several commenters stated                   Transportation Program’’ providing                     plan the State has chosen to offer
                                             that under section 1937 of the Act, a                   guidance on section 6083 of the DRA                    Medicaid beneficiaries, the requirement
                                             benchmark-equivalent package must                       and wonders how CMS on one hand is                     to assure necessary transportation for
                                             offer a specific range of services set forth            providing guidance regarding non-                      eligible Medicaid beneficiaries remains
                                             in § 440.335(b)(1)–(5) of the proposed                  emergency medical transportation and                   applicable.
                                             regulation and that the majority of                     encouraging use of a brokerage program,                   Comment: One commenter stated that
                                             qualifying benchmark plans cover                        while on the other hand proposing                      CMS did not conduct an analysis of the
                                             emergency ambulance services. To                        elimination of non-emergency medical                   impact that excluding the transportation
                                             ensure that enrollees in benchmark-                     transportation in benchmark or                         benefit would have on the populations
                                             equivalent plans receive coverage that is               benchmark-equivalent plans.                            affected or on the States. The
                                             qualitatively equivalent to benchmark                      Additionally, the commenter believed                commenter also noted that in the
                                             plans that provide emergency                            that the transportation benefit currently              ‘‘Regulatory Impact Analysis,’’ CMS
                                             ambulance transportation, CMS should                    operates in a fiscally sound manner. As                states that they are under no obligation
                                             require benchmark-equivalent plans to                   currently structured, the commenter                    to assess anticipated costs and benefits
                                             cover emergency ambulance                               asserted that the transportation benefit               of this rule, even if the rule may result
                                             transportation.                                         is cost effective in most States. The                  in expenditures by the State, local, or
                                                Response: CHIPRA clarified that the                  commenter noted that States generally                  tribal governments of the private sector,
                                             assurance of necessary transportation is                limit reimbursement for transportation                 because States are not mandated to
                                             applicable to benchmark and                             to the least costly form of transport that             participate in the benchmark plans. This
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             benchmark-equivalent plans. We                          is medically appropriate based on the                  precludes any discussion of the shift in
                                             therefore revised the regulation at                     beneficiary’s condition. Moreover,                     costs to other agencies that may result
                                             § 440.390 to require States to assure all               Medicaid beneficiaries are generally                   from the exclusion of transportation
                                             necessary transportation.                               required to use free transportation                    benefits. The commenter stated that in
                                                Comment: One commenter noted that                    resources before the program will                      the proposed rule CMS says that shifting
                                             instead of saving money by eliminating                  provide reimbursement for                              the financial burden to the vulnerable
                                             non-emergency transportation, CMS                       transportation. The commenter stated                   Medicaid populations is simply a matter


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00028   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                         23095

                                             of personal responsibility. The                         of the Act, we have revised the                        Natural Resources Defense Council, 467
                                             commenter believed that the                             regulation at § 440.390 to require States              U.S. 837 (1984).
                                             elimination of transportation is a                      to assure necessary transportation.                       A number of commenters noted that
                                             scenario for less effective, more                       Therefore, the commenter’s concerns                    CMS’s interpretation of the language in
                                             expensive health care because fewer                     regarding the provision of emergency                   section 1937 of the Act is ‘‘overbroad’’
                                             people will seek preventive care since                  transportation services and the need for               because it permits CMS too much
                                             they won’t have transportation and will                 States to properly distinguish between                 discretion. Several commenters also
                                             therefore end up needing more                           emergency and non-emergency                            stated that in believing that it could
                                             expensive medical services.                             transportation services have been                      change a long standing Medicaid policy
                                                Response: We revised the regulation                  addressed.                                             on the assurance of transportation, CMS
                                             in § 440.390 to require States to assure                   Comment: A number of commenters                     wrongly interpreted the statute and had
                                             necessary transportation for                            disagreed with the assumption that non-                not supported its rationale for allowing
                                             beneficiaries enrolled in benchmark and                 emergency transportation is not covered                States to waive the provider-to-provider
                                             benchmark-equivalent benefit plans and                  by private health insurance. They stated               transportation requirement. A number
                                             have therefore revised the ‘‘Regulatory                 that many private health insurance                     of commenters believed that allowing
                                             Impact Analysis,’’ to account for the                   plans do provide coverage for non-                     States to choose not to provide
                                             impact of providing transportation.                     emergency ambulance transportation                     transportation was inconsistent with
                                                Comment: Several commenters noted                    when medically necessary. One                          Medicaid’s mission of increasing access
                                             the lack of definition addressing the                   commenter stated that CMS is ignoring                  to healthcare. Many commenters
                                             difference between emergency and non-                   the fact that many commercial plans                    indicated that exempting States from the
                                             emergency transportation. Several other                 have provided services to Medicaid                     transportation requirement set forth in
                                             commenters requested that CMS                           beneficiaries and are thus equipped to                 § 431.53 ‘‘renders those provisions to
                                             provide a universal definition of non-                  provide the transportation benefit. The                mere surplusage’’ and that CMS’s
                                             emergency transportation, because                       same commenter requested that if the                   interpretation affords CMS the
                                             without this guidance there would be                    provision on non-emergency                             unfettered ability to make ad hoc
                                             chaos and an inability to adjudicate                                                                           determinations about what laws and
                                                                                                     transportation remains in the final
                                             issues and disputes over what is and is                                                                        regulations will apply to benchmark and
                                                                                                     regulation, CMS should require that no
                                             not non-emergency transportation.                                                                              benchmark-equivalent plans. Many
                                                One commenter urged CMS to require                   benchmark or benchmark-equivalent
                                                                                                     plan be allowed to require emergency                   commenters stated that the
                                             that benchmark and benchmark-                                                                                  requirements in § 431.53 exist to protect
                                             equivalent plans cover emergency                        ambulance services to join a network as
                                                                                                     a condition of obtaining necessary                     beneficiaries and to ensure that they
                                             ambulance transportation and do so by                                                                          receive access to healthcare. Also, CMS
                                             clarifying that the reference to                        information for billing or as a condition
                                                                                                                                                            should not be permitted to allow States
                                             ‘‘emergency services’’ in proposed                      of prompt payment, and that benchmark
                                                                                                                                                            to deprive Medicaid individuals of
                                             § 440.335 include emergency ambulance                   and benchmark-equivalent plans be
                                                                                                                                                            necessary transportation based upon an
                                             services. Several commenters stated the                 required to pay for emergency
                                                                                                                                                            illogical interpretation of a provision of
                                             regulation fails to make a distinction                  ambulance transportation at a rate not
                                                                                                                                                            the Act.
                                             between emergency and non-emergency                     less than the State Medicaid approved                     Several commenters stated that CMS
                                             transport and CMS assumes that ‘‘to and                 rate. One commenter noted that if CMS                  is providing sufficient flexibility to
                                             from providers’’ means non-emergency                    intends to make this a rationale for the               States through the option to provide
                                             medical transportation however this                     elimination of Medicaid benefits, it                   benchmark or benchmark-equivalent
                                             may not always be the case. According                   should first study this issue and release              coverage without regard to
                                             to the commenter, transport is often                    its findings.                                          comparability, statewideness, and
                                             required for Medicaid patients who                         Response: In accordance with changes                freedom of choice. The commenter did
                                             develop critical conditions that require                made by CHIPRA to section 1937 of the                  not see how relieving the State of the
                                             immediate care beyond the scope of the                  Act and the clarification these changes                requirement to assure transportation to
                                             initial facility, resulting in the patient              provided we revised the regulation at                  and from providers offers any additional
                                             being transported to another facility for               § 440.390 to require States to assure                  flexibility.
                                             care. If States are no longer required to               necessary transportation.                                 Response: Section 611(a)(1)(C) of
                                             ensure necessary transportation for                        Comment: Many of the commenters                     CHIPRA amended the ‘‘notwithstanding
                                             individuals to and from providers, the                  voiced concerns that CMS has                           any other provision of this title * * *’’
                                             State will likely not cover this type of                overreached in its rationale for allowing              language. This change in the law
                                             transport under a benchmark or                          States to opt-out of the transportation                clarifies that the authority under section
                                             benchmark-equivalent plan. This type of                 requirements, and that CMS did not                     1937 to deviate from otherwise
                                             transport fits the parameters of the                    support its rationale. Several                         applicable Medicaid requirements is
                                             regulation because it is from one                       commenters stated that CMS did not                     limited. Therefore, we have revised the
                                             provider to another, but the regulation                 have the legal authority to allow States               regulation at § 440.390 to require States
                                             does not make the distinction that it                   to choose not to provide non-emergency                 to assure necessary transportation to
                                             must be a non-emergency transport.                      transportation. One commenter stated                   and from providers.
                                                Other commenters believed                            that § 440.390 exceeds the Department’s                   Comment: Several commenters
                                             ambulance service, whether considered                   administrative authority, results in an                mentioned earlier that CMS offered a
                                             non-emergency or emergency                              impermissible legislative action by the                definition of ‘‘special medical needs’’
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             transportation should be required in all                agency, and violates the separation of                 but pointed out that CMS did not offer
                                             benchmark or benchmark-equivalent                       powers doctrine of the Constitution.                   a definition of ‘‘medically frail.’’ The
                                             plans.                                                  Generally, an executive agency’s                       commenters urged CMS, in considering
                                                Response: Since CHIPRA clarified                     authority is limited to implementing                   transportation, to include in any
                                             that the assurance of necessary                         laws and to clarifying ambiguities in                  definition of ‘‘medically frail’’ an
                                             transportation is a mandatory State plan                statutes passed by Congress. The                       individual who might require medically
                                             requirement that applies to section 1937                commenter cites Chevron U.S.A. v.                      necessary ambulance transportation due


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00029   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23096                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             to their physical or mental condition,                  13330, to develop the benchmark policy                 States submit a State plan amendment
                                             illness, injury, disability, in a bed                   on non-emergency transportation.                       under this section of the law. We
                                             confined or wheelchair confined state,                     Response: Section 611(a)(1)(C) of                   removed the exception at § 440.305(e) to
                                             such that transportation by any means                   CHIPRA amended the ‘‘notwithstanding                   the managed care rules that existed in
                                             other than ambulance would likely                       any other provision of this title’’                    the February 22, 2008 proposed rule
                                             jeopardize the patient’s health or safety.              language. This change in the law                       because section 611(a) of CHIPRA
                                                Response: As stated earlier, while                   clarifies that the authority under section             required adherence to all rules except
                                             CMS wishes to maintain some State                       1937 to deviate from otherwise                         those directly contrary to the authority
                                             flexibility in defining the term                        applicable Medicaid requirements is                    under this section. By removing this
                                             medically frail we have provided further                limited. Accordingly, we revised the                   exception to the managed care rules all
                                             guidance on the characteristics of                      regulation at § 440.390 to require States              benchmark and benchmark-equivalent
                                             medically frail and special needs                       to assure necessary transportation to                  benefit plans that are delivered through
                                             individuals. We expect States to take                   and from providers. We do not believe                  a managed care entity must comply with
                                             this guidance into consideration when                   that Executive Order 13330, which                      managed care rules.
                                             determining what type of transportation                 relates to the coordination of
                                             is needed by these individuals.                         transportation among Federal agencies,                 Exempt Individuals (§ 440.315)
                                                Comment: Several commenters stated                   is relevant to this rule as this rule                     We revised paragraph (f) at § 440.315
                                             the proposed elimination of                             pertains to the provision of                           to indicate that States will have
                                             transportation was discriminatory                       transportation by States under State                   flexibility in adopting definitions of
                                             because individuals with special needs                  Medicaid programs.                                     individuals who are ‘‘medically frail’’
                                             are not able to access transportation                      Comment: One commenter,                             and/or individuals with special medical
                                             services and will be de facto denied the                submitting on behalf of the Alaska                     needs, but that these definitions must at
                                             medical services that other Medicaid                    Natives (ANs) Tribal Health                            least include those individuals
                                             individuals receive. Also, the                          Consortium, wrote that in Alaska nearly                described in § 438.50(d)(3), children
                                             commenters asserted that the statutory                  40 percent of the Medicaid eligible                    with serious emotional disturbances,
                                             provision authorizing use of benchmark                  populations are ANs. The vast majority                 individuals with disabling mental
                                             and benchmark-equivalent plans,                         of AN villages are accessible only by                  disorders, individuals with serious and
                                             ‘‘notwithstanding any other provision of                plane, boat, snow-machine, or dog-sled.                complex medical conditions, and
                                             this title’’ will not pass a challenge in               Due to the extreme poverty found in AN                 individuals with physical and or mental
                                             the court system because it                             villages, Congress authorized tribal                   disabilities that prevent them from
                                             discriminates against disabled                          health programs to bill the Medicare                   performing one or more activities of
                                             individuals.                                            and Medicaid programs for covered                      daily living. Further, we deleted the
                                                Response: Section 611(a)(1)(C) of                    services. Tribal health services rely                  reference to § 438.50(d)(1) for
                                             CHIPRA amended the ‘‘notwithstanding                    heavily on Medicaid and Medicare                       individuals entitled to Medicare
                                             any other provision of this title’’                     payments. The commenter is                             benefits as these individuals are already
                                             language. This change in the law                        profoundly concerned that the proposed                 exempt individuals who cannot be
                                             clarifies that the authority under section              rule would allow States to curtail                     required to enroll in benchmark or
                                             1937 to deviate from otherwise                          Medicaid coverage of crucial health                    benchmark-equivalent plans because of
                                             applicable Medicaid requirements is                     services currently provided to ANs and                 the requirement in section 1937(a)(2)(iii)
                                             limited. Accordingly, we revised the                    would eliminate coverage of                            of the Act.
                                             regulation at § 440.390 to require States               transportation needed by ANs to access                    We revised paragraph (h) of § 440.315
                                             to assure necessary transportation to                   medical services.                                      to clarify that exempt individuals
                                             and from providers for individuals,                        Response: We recognize the important                include ‘‘an individual with respect to
                                             including those with special needs, who                 value of Medicaid transportation                       whom child welfare services are made
                                             are enrolled in benchmark and                           services to the AN population. As stated               available under part B of title IV to
                                             benchmark-equivalent benefit plans.                     previously CHIPRA amended the                          children in foster care and individuals
                                                Comment: Several commenters noted                    ‘‘notwithstanding any other provision of               with respect to whom adoption or foster
                                             that Executive Order 13330 requires                     this title * * *’’ language and this                   care assistance is made available under
                                             coordination for elderly and                            change in the law clarifies that the                   part E of title IV, without regard to age.’’
                                             handicapped transportation programs                     authority under section 1937 to deviate                   We have revised paragraph (i) at
                                             among Federal agencies. Creating                        from otherwise applicable Medicaid                     § 440.315 to state that parents and
                                             Federal DHHS standards for appropriate                  requirements is limited. Therefore, we                 caretaker relatives whom States are
                                             service levels would promote this                       have revised the regulation at § 440.390               required to cover under section 1931 of
                                             coordination effort and in the interests                to require States to assure necessary                  the Act, are considered exempt
                                             of quality services, lower costs and                    transportation to and from providers for               individuals. This provision reverses the
                                             enhanced coordination, DHHS should                      those enrolled in benchmark and                        prior rule which limited the exemption
                                             develop parallel standards that would                   benchmark-equivalent benefit plans.                    to individuals who were eligible for
                                             drive cost savings derived by                                                                                  Medicaid based on the eligibility for
                                             competitive procurement instead of                      IV. Provisions of the Final Regulations                TANF; eligibility for Medicaid is not
                                             denying services to those who need it                     In general, this final rule incorporates             based, under Federal laws, on eligibility
                                             the most. Removing an essential                         the provisions of the February 2008                    for TANF.
                                             element such as transportation in order                 proposed rule and the changes made by                     We added a new paragraph (m) in
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             to save money will ultimately result in                 CHIPRA. The provisions of this final                   § 440.315 to include medically needy or
                                             greater reliance on institutional care at               rule that differ from the February 2008                those eligible as a result of a reduction
                                             a much higher cost. One commenter                       proposed rule are as follows:                          of countable income based on costs
                                             believed that CMS should withdraw the                                                                          incurred for medical care in the list of
                                             regulation and allow the Coordinating                   Scope (§ 440.305)                                      populations who are exempt from
                                             Council on Access and Mobility, which                     We added a new paragraph (d) at                      mandatory enrollment in benchmark or
                                             was established by Executive Order                      § 440.305 to require public input before               benchmark-equivalent plans.


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00030   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                          23097

                                             Section 440.320 State Plan                              requirement in paragraph (b)(5) and                    Economy and Efficiency (§ 440.370)
                                             Requirements: Optional Enrollment for                   renumbered the paragraph relating to                      We removed the section heading
                                             Exempt Individuals                                      preventive services as (b)(6) in                       ‘‘Cost-effectiveness’’ and replaced it with
                                                We revised paragraphs (a)(1), (a)(2),                § 440.335. We also added family                        ‘‘Economy and efficiency’’ in § 440.370
                                             and (a)(3) at § 440.320 to require that a               planning services and supplies to the                  of this regulation.
                                             State that chooses to offer enrollment in               description of required preventive
                                                                                                     services.                                              Comparability (§ 440.375)
                                             a benchmark or benchmark-equivalent
                                             plan to exempt individuals must                         Actuarial Report for Benchmark-                           We removed the section heading
                                             effectively inform such individuals                     Equivalent Coverage (§ 440.340)                        ‘‘Comparability and scope of coverage’’
                                             prior to enrollment that the individual                                                                        and replaced it with ‘‘Comparability’’ in
                                             is exempt and that enrollment is                          We revised § 440.340(b)(7) to require                § 440.370 of this regulation. We also
                                             voluntary. The State must inform the                    States to take into account the impact of              revised § 440.375 by removing the
                                             individual of the benefits in the                       cost sharing limitations when                          language ‘‘or requirements relating to the
                                             benchmark or benchmark-equivalent                       calculating actuarial equivalency.                     scope of coverage other than those
                                             plan and provide a comparison of how                                                                           contained in this subpart’’.
                                                                                                     EPSDT Services Requirement
                                             they differ from traditional Medicaid                   (§ 440.345)                                            Delivery of Benchmark and Benchmark-
                                             State plan coverage, and document in                                                                           Equivalent Coverage Through Managed
                                             the individual’s eligibility file that prior               We revised paragraph (a) in § 440.345
                                                                                                                                                            Care Entities (§ 440.385)
                                             to enrollment the beneficiary was                       to reflect the new requirements in
                                                                                                     CHIPRA to cover 19 and 20 year olds for                   We replaced the title ‘‘Freedom of
                                             provided a comparison of the                                                                                   choice’’ with ‘‘Delivery of benchmark
                                             benchmark or benchmark-equivalent                       full EPSDT services. This section
                                                                                                     requires that ‘‘The State must assure                  and benchmark-equivalent coverage
                                             benefit package to the State plan                                                                              through managed care entities.’’ We
                                             package, was given ample time to make                   access to early and periodic screening,
                                                                                                     diagnostic and treatment (EPSDT)                       revised this section by removing the
                                             an informed choice as to enrollment and                                                                        option to provide benchmark or
                                             voluntarily choose to enroll in the                     services through benchmark or
                                                                                                     benchmark-equivalent plan benefits or                  benchmark-equivalent benefit plans
                                             benchmark or benchmark-equivalent                                                                              without regard to the requirements for
                                             plan.                                                   as additional benefits to those plans for
                                                                                                     any child under 21 years of age eligible               freedom of choice in § 431.51 of this
                                                We added a new paragraph (a)(4) to                                                                          chapter. Section 611(a) of CHIPRA
                                             clarify that States must comply with the                under the State plan in a category under
                                                                                                     section 1902(a)(10)(A) of the Act.’’                   clarified that benchmark and benchmark
                                             requirements of § 440.320(a)(1), (a)(2),                                                                       equivalent plans must comply with all
                                             and (a)(3) within 30 days after a                          We removed the term ‘‘wrap-around’’
                                                                                                     and replaced it with ‘‘additional’’ in                 requirements of title XIX other than
                                             determination is made that an                                                                                  1902(a)(1) and 1902(a)(10)(B). We
                                             individual has become part of an                        paragraphs (a)(1) and (a)(2) in § 440.345
                                                                                                     of this regulation, and the words                      therefore revised the title and text of
                                             exempt group while enrolled in                                                                                 440.385 to provide that States wishing
                                             benchmark or benchmark-equivalent                       ‘‘through wrap-around,’’ and replaced
                                                                                                                                                            to deliver benchmark and benchmark-
                                             coverage.                                               them with ‘‘additional’’ in § 440.345(b)
                                                                                                                                                            equivalent benefit packages through a
                                                We added new paragraphs (b)(1) and                   of this regulation. We have also revised
                                                                                                                                                            managed care entity may do so but must
                                             (b)(2) in § 440.320 to clarify the                      the ‘‘sufficiency’’ provision. Together
                                                                                                                                                            comply with the requirements of section
                                             disenrollment process for exempt                        these modifications are intended to
                                                                                                                                                            1932 of the Act and 42 CFR part 438.
                                             individuals and require that States act                 make it clear that EPSDT services must
                                             upon disenrollment requests promptly                    in all circumstances be provided by the                Assurance of Transportation (§ 440.390)
                                             for those exempt individuals who                        State Medicaid program; either through                   We revised § 440.390 to specify that if
                                             choose to disenroll from benchmark or                   the benchmark or benchmark-equivalent                  a benchmark or benchmark-equivalent
                                             benchmark-equivalent coverage and to                    plan or as an ‘‘additional’’ service. We               plan does not include transportation to
                                             require that the State have a process in                have also added a statutory cite ‘‘under               and from medically necessary covered
                                             place to ensure continuous access to all                section 1937 of the Act’’ after the word               Medicaid services, the State must
                                             standard State plan services while                      ‘‘benefits’’ in § 440.345(b) of this                   nevertheless assure that emergency and
                                             requests to disenroll from benchmark or                 regulation.                                            non-emergency transportation is
                                             benchmark-equivalent coverage are                       Employer-Sponsored Insurance Health                    covered for beneficiaries enrolled in the
                                             being processed. States must also                       Plans (§ 440.350)                                      benchmark and benchmark-equivalent
                                             maintain data to track the number of                                                                           plan, as required under § 431.53 of this
                                             exempt individuals who enroll in, and                      We removed the language ‘‘the                       chapter.
                                             dissenroll from benchmark or                            additional or wrap-around’’ and
                                             benchmark-equivalent plans.                             replaced it with ‘‘additional’’ in                     V. Collection of Information
                                                                                                     § 440.350(a) of this regulation.                       Requirements
                                             Benchmark-Equivalent Health Benefits                       We replaced the term ‘‘cost-                          The following requirements are
                                             Coverage (§ 440.335)                                    effectiveness’’ with ‘‘economy and                     subject to the Paperwork Reduction Act
                                               We revised paragraph (b) in § 440.335,                efficiency’’ in § 440.350(b) of this                   (PRA). While some elements contained
                                             which lists the mandatory services that                 regulation to be consistent with the new               in the sections listed below are
                                             benchmark-equivalent plans must                         section heading of § 440.370.                          approved under OMB control number
                                             provide. In the December 3, 2008 final                                                                         0938–0993, the current information
wwoods2 on DSKDVH8Z91PROD with RULES3




                                                                                                     State Plan Requirement for Providing
                                             rule, emergency services was included                                                                          collection will need to be revised to
                                                                                                     Additional Services (§ 440.360)
                                             in the description of other appropriate                                                                        reflect changes contained in this final
                                             preventive services designated by the                     We removed the term ‘‘wrap-around’’                  rule. CMS is revising this PRA package
                                             Secretary. To clarify that benchmark                    in the section heading in § 440.360 of                 to make necessary updates and to
                                             equivalent coverage must include                        this regulation. We also revised                       incorporate any new requirements not
                                             emergency services we made emergency                    § 440.360 by removing the language ‘‘or                currently approved by OMB. The
                                             services a separate and distinct                        wrap-around’’.                                         revised package will be published in a


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00031   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23098                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             60-day Federal Register notice seeking                  available group health plan to receive                 increase in the Federal matching
                                             public comment.                                         benchmark or benchmark-equivalent                      percentage (FMAP) for Medicaid,
                                                                                                     coverage.                                              enacted on February 17, 2009. The
                                             Section 440.320 State Plan
                                                                                                                                                            estimated aggregate Federal savings for
                                             Requirements: Optional Enrollment for                   Section 440.360 State Plan
                                                                                                                                                            fiscal years 2006 through 2014, as
                                             Exempt Individuals                                      Requirement for Providing Additional                   shown in Table 1, is estimated to be
                                               Section 440.320(a) requires a State to:               Services                                               $4.97 billion. Also, the estimated
                                             (1) Inform the individuals that the                       This section requires States opting to               aggregate State savings for fiscal years
                                             enrollment is voluntary and that the                    provide additional services to the                     2006 through 2014, as shown in Table
                                             individual may disenroll from the                       benchmark-equivalent plans, to describe                2, is $3.36 billion.
                                             benchmark or benchmark-equivalent                       the populations covered and the                           In the December 3, 2008 ‘‘final rule,’’
                                             coverage at any time and regain                         payment methodology for these services                 we estimated aggregate impacts for
                                             immediate access to standard full                       in their State plan.                                   fiscal years 2006 through 2010 of $2.28
                                             Medicaid coverage under the State plan;                                                                        billion in Federal savings and $1.72
                                             (2) Inform the exempt individual of the                 Section 440.390         Assurance of                   billion in State savings. In this final
                                             benefits available under the benchmark                  Transportation                                         rule, the updated aggregate impacts, for
                                             or benchmark-equivalent benefit                            A State must assure medically                       the same time period of fiscal years
                                             package and provide a comparison of                     necessary transportation for                           2006 through 2010, are $1.84 billion in
                                             how they differ from the benefits                       beneficiaries enrolled in a benchmark or               Federal savings and $1.05 in State
                                             available under the standard full                       benchmark-equivalent plan even if                      savings. As a result, relative to the
                                             Medicaid program; and, (3) Document                     transportation is not a service provided               December 3, 2008 final rule, this yields
                                             in the exempt individual’s eligibility file             in the benchmark or benchmark-                         a reduction in the aggregate impacts of
                                             that the individual was informed in                     equivalent plan.                                       $440 million in Federal savings and
                                             accordance with this section and                                                                               $670 million in State savings, for fiscal
                                                                                                     VI. Regulatory Impact Analysis                         years 2006 through 2010. We estimated
                                             voluntarily chose to enroll in the
                                             benchmark or benchmark-equivalent                       A. Overall Impact                                      the impact of this rule by analyzing the
                                             benefit package.                                                                                               potential Federal savings related to
                                                                                                        We have examined the impacts of this
                                                                                                                                                            lower per capita spending that may be
                                             Section 440.330 Benchmark Health                        rule as required by Executive Order                    achieved if States choose to enroll
                                             Benefits Coverage                                       12866 on Regulatory Planning and                       beneficiaries in eligible populations in
                                                                                                     Review (September 30, 1993), the                       plans that are less costly than projected
                                               Section 440.330(d) requires States
                                                                                                     Regulatory Flexibility Act (RFA)                       Medicaid costs. To do this, we
                                             wishing to opt for Secretarial-approved
                                                                                                     (September 19, 1980, Pub. L. 96–354),                  developed estimates based on the
                                             coverage to submit a full description of
                                                                                                     section 1102(b) of the Act, section 202                following assumptions:
                                             the proposed coverage and include a
                                                                                                     of the Unfunded Mandates Reform Act                       • The number of eligible beneficiaries
                                             benefit-by-benefit comparison of the
                                                                                                     of 1995 (Pub. L. 104–4), Executive Order               and the Federal Medicaid costs of these
                                             proposed plan to one or more of the
                                                                                                     13132 on Federalism (August 4, 1999),                  beneficiaries are based on 2003
                                             three other benchmark plans specified.
                                                                                                     and the Congressional Review Act (5                    Medicaid Statistical Information System
                                             Section 440.340 Actuarial Report for                    U.S.C. 804(2)).                                        (MSIS) data;
                                             Benchmark-Equivalent Coverage                              Executive Order 12866 directs                          • Projections of the number of eligible
                                               Section 440.340 requires a State trying               agencies to assess all costs and benefits              beneficiaries and their associated
                                             to obtain approval for benchmark-                       of available regulatory alternatives and,              Federal Medicaid costs were made using
                                             equivalent health benefits coverage                     if regulation is necessary, to select                  assumptions from the President’s
                                             described in § 440.335 to submit, as part               regulatory approaches that maximize                    Budget 2007, including enrollment
                                             of its State Plan Amendment, an                         net benefits (including potential                      growth rates and per capita spending
                                             actuarial report. The report must                       economic, environmental, public health                 growth rates;
                                             provide sufficient detail to explain the                and safety effects, distributive impacts,                 • The relative costs of the new plans
                                             basis of the methodologies used to                      and equity). A regulatory impact                       allowed under this rule to current
                                             estimate the actuarial value or, if                     analysis (RIA) must be prepared for                    Medicaid spending were estimated
                                             requested by CMS, to replicate the                      rules with economically significant                    based on reviews of Medicaid spending
                                             State’s result.                                         effects of $100 million or more in any                 data and the plans described in this
                                                                                                     1 year. As a result, since there is an                 rule. Additionally, we have assumed
                                             Section 440.345 Requirement To                          economic impact of more than $100                      that not all States would immediately
                                             Provide EPSDT Services                                  million in any 1 year, this final rule is              use the options made available through
                                               Section 440.345(a)(2) requires a State                categorized as economically significant                this rule; therefore, we assume that State
                                             to include a description in their State                 and thus is consequentially a major rule               use of these plans will continue to
                                             Plan of how the additional services will                under the Congressional Review Act.                    increase through 2011. We assumed that
                                             be provided to ensure that all                             The regulatory impact analysis in this              use in 2006 will be about 10 percent of
                                             individuals under 21 receive full EPSDT                 final rule incorporates provisions of the              2011-level of use; 40 percent in 2007; 60
                                             services. The description must describe                 Children’s Health Insurance Program                    percent in 2008; 80 percent in 2009; and
                                             the populations covered and the                         Authorization Act (CHIPRA) of 2009,                    90 percent in 2010. We do not assume
                                             procedures for assuring those services.                 enacted on February 4, 2009, which                     any further expansion beyond 2011.
wwoods2 on DSKDVH8Z91PROD with RULES3




                                                                                                     corrected language in the DRA and                         These estimates assume that there
                                             Section 440.350 Employer-Sponsored                      subsequently amended section 1937                      will be a negligible impact on State
                                             Insurance Health Plans                                  ‘‘State Flexibility for Medicaid Benefit               administration costs. As States already
                                               Section 440.350(b) requires a State to                Packages.’’ In addition, this final rule               have experience in dealing with
                                             set forth in the State plan the criteria it             incorporates provisions of the American                alternative plan designs, including
                                             will use to identify individuals who                    Recovery and Reinvestment Act (ARRA)                   through waivers or managed care plans,
                                             would be required to enroll in an                       of 2009 related to the temporary                       we assumed States are equipped to


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00032   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                          Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                                  23099

                                             implement these plans and will be part                                reasons. First, this rule provides the                   estimated. Second, this rule also
                                             of their normal administrative spending.                              option for States to use alternative                     provides a wide range of options for
                                               Also, these estimates are subject to a                              plans; to the extent that States                         States in designing these plans; to the
                                             substantial amount of uncertainty and                                 participate more or less than assumed                    extent that States use plans that are
                                             actual experience may be significantly                                here (both the number of States that                     relatively more or less costly than
                                             different. The range of possible                                      participate and the extensiveness of                     assumed here, Federal savings may be
                                             experience is greater than under most                                 States’ use of these plans), Federal                     less than or greater than estimated.
                                             other rules for the following two                                     savings may be greater than or less than

                                               TABLE 1—ESTIMATED ANNUAL FEDERAL SAVINGS DISCOUNTED AT 0 PERCENT, 3 PERCENT AND 7 PERCENT—FROM FY
                                                                                        2006 TO FY 2014
                                                                                                                                     [In $millions]

                                                                                                                                                                                                          Total savings
                                                                Discount rate                              2006       2007        2008        2009         2010    2011        2012    2013       2014     2006–2014

                                             0% ........................................................     $50       $210        $340        $570         $670     $710       $740       $810    $870          $4,970
                                             3% ........................................................      49        198         311         506          578      595        602        639     667           4,145
                                             7% ........................................................      47        183         278         435          478      473        461        471     473           3,299



                                                We anticipate that States will phase in                            appropriate utilization of services, and                 programs. Because States are no longer
                                             alternative benefit programs, and                                     through gains in efficiencies through                    tied to statewideness and comparability
                                             changes will not be fully realized until                              contracting. States will be able to take                 rules for individuals who are not
                                             2010. The majority of savings will be                                 greater advantage of marketplace                         disabled, not aged, or not blind, they
                                             achieved through cost avoidance of                                    dynamics within their State. We also                     will be able to offer individuals and
                                             future anticipated costs by providing                                 anticipate that a number of States will                  families different types of plans
                                             appropriate benefits based on a                                       use this flexibility to create programs                  consistent with their needs and
                                             population’s health care needs,                                       that are more similar to their CHIP                      available delivery systems.

                                                 TABLE 2—ESTIMATED ANNUAL STATE SAVINGS DISCOUNTED AT 0 PERCENT, 3 PERCENT AND 7 PERCENT—FROM FY
                                                                                         2006 TO FY 2014
                                                                                                                                     [In $millions]

                                                                                                                                                                                                          Total savings
                                                                Discount rate                              2006       2007        2008        2009         2010    2011        2012    2013       2014     2006–2014

                                             0% ........................................................     $40       $160        $250        $280         $320     $480       $560       $610    $660          $3,360
                                             3% ........................................................      39        151         229         249          276      402        455        482     506           2,788
                                             7% ........................................................      37        140         204         214          228      320        349        355     359           2,206



                                                The RFA requires agencies to analyze                               impact analysis, if a rule may have a                    change to their Medicaid program. As a
                                             options for regulatory relief of small                                significant impact on the operations of                  result, there is no mandate for the State.
                                             businesses, if a rule has a significant                               a substantial number of small rural                      Therefore, we estimate this final will
                                             impact on a substantial number of small                               hospitals. This analysis must conform to                 not mandate expenditures in the
                                             entities. For purposes of the RFA, small                              the provisions of section 604 of the                     threshold amount of $135 million in any
                                             entities as that term is used in the RFA                              RFA. For purposes of section 1102(b) of                  1 year.
                                             (include small businesses, nonprofit                                  the Act, we define a small rural hospital                   Executive Order 13132 establishes
                                             organizations, and small governmental                                 as a hospital that is located outside of                 certain requirements that an agency
                                             jurisdictions). The great majority of                                 a metropolitan statistical area and has                  must meet when it promulgates a
                                             hospitals and most other health care                                  fewer than 100 beds. The Secretary has                   proposed rule (and subsequent final
                                             providers and suppliers are small                                     determined that this rule would not                      rule) that imposes substantial direct
                                             entities, either by being nonprofit                                   have a significant impact on the                         requirement costs on State and local
                                             organizations or by meeting the SBA                                   operations of a substantial number of                    governments, preempts State law, or
                                             definition of a small business (having                                small rural hospitals.                                   otherwise has Federalism implications.
                                             revenues of less than $7 million to $34.5                                Section 202 of the Unfunded                           This final rule will not impose direct
                                             million in any 1 year). (For details, see                             Mandates Reform Act of 1995 (UMRA)                       cost on States or local governments or
                                             the Small Business Administration’s                                   (Pub. L. 104–4) also requires that                       preempt State law. The rule will
                                             final rule that set forth size standards for                          agencies assess anticipated costs and                    provide States the option to implement
                                             health care industries, at 65 FR 69432,                               benefits before issuing any rule whose                   alternative Medicaid benefits through a
                                             November 17, 2000.) Individuals and                                   mandates require spending in any 1 year                  Medicaid State plan amendment.
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             States are not included in the definition                             of $100 million in 1995 dollars, updated                    Comment: One commenter questioned
                                             of a small entity. The Secretary has                                  annually for inflation. In 2010, that                    the validity of CMS’s Regulatory Impact
                                             determined that this provision applies                                threshold is approximately $135                          Analysis, believing that the proposed
                                             to States only and will not affect small                              million. Because this rule does not                      rule will cause additional
                                             entities.                                                             mandate State participation in using                     administrative effort in order for
                                                In addition, section 1102(b) of the Act                            these benchmark plans, there is no                       American Indians/Alaska Natives
                                             requires us to prepare a regulatory                                   obligation for the State to make any                     beneficiaries to participate.


                                        VerDate Mar<15>2010        13:53 Apr 29, 2010         Jkt 220001   PO 00000   Frm 00033    Fmt 4701    Sfmt 4700    E:\FR\FM\30APR3.SGM   30APR3
                                             23100                   Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                                Response: CMS is required by                              location. Some States offered alternative               demonstration waivers, 1915(b) waivers,
                                             Executive Order 12866 (September                             benefit packages to certain individuals                 1915(c) waivers, or any combination
                                             1993, Regulatory Planning and Review),                       under section 1115 demonstration                        thereof. We have not elected this
                                             the Regulatory Flexibility Act (RFA)                         waivers approved by the Centers for                     alternative because it would be
                                             (September 19, 1980, Pub. L. 96–354),                        Medicare & Medicaid Services. This                      cumbersome for States, it will not be
                                             section 1102(b) of the Act, the                              provision allows for similar program                    consistent with the statutory use of
                                             Unfunded Mandates Reform Act of 1995                         alternatives under the State plan.                      benchmark and benchmark-equivalent
                                             (Pub. L. 104–4), and Executive Order                         Without a waiver, States may form                       coverage as reference points for
                                             13132 on Federalism, and the                                 larger pools by combining Medicaid                      permissible benefit packages, and it will
                                             Congressional Review Act (5 U.S.C.                           individuals with their public
                                                                                                                                                                  not improve the clarity of the State plan.
                                             804(2)) to conduct a regulatory analysis                     employees.
                                                                                                                                                                  Another alternative might have been to
                                             of the impact of any regulatory revision
                                                                                                          C. Alternatives Considered                              limit State flexibility under this
                                             to the Medicare, Medicaid, and/or
                                             Children’s Health Insurance Program                             This rule finalizes requirements for                 provision to variation in the amount,
                                             before adoption of any rule. A                               States to elect alternative Medicaid                    duration and scope of benefits without
                                             Regulatory Impact Analysis was                               benefit programs through the adoption                   providing authority for an integrated
                                             completed for this rule. We believe                          of a Medicaid State plan amendment.                     approach combining alternative benefits
                                             there is negligible impact on State                          The final requirements in this rule were                with alternative benefit delivery
                                             administrative costs since States already                    designed to permit State flexibility                    methods. We have not elected this
                                             have experience in dealing with                              while assuring that beneficiaries will get              alternative because an integrated
                                             alternative plan designs, including                          quality care that meets their needs.                    approach allows greater State flexibility
                                             through waivers or managed care plans.                       Under this rule, we will allow States to                to tailor both benefits and delivery
                                             Thus, we have assumed States are                             define the alternative benefit packages                 methods to the eligible groups of
                                             equipped to implement these plans and                        by reference to the benchmark or                        individuals being served.
                                             that costs will be part of their normal                      benchmark-equivalent standard, while
                                             administrative spending. We believe                          making it clear that children under 21                  D. Accounting Statement
                                             this would be true for any State that                        are eligible for the full range of
                                                                                                                                                                     As required by OMB Circular A–4
                                             chooses to offer benchmark or                                Medicaid benefits under EPSDT. We
                                                                                                          will also permit States to combine an                   (available at http://
                                             benchmark-equivalent plans to the                                                                                    www.whitehouse.gov/omb/circulars/
                                             Medicaid beneficiaries including                             alternative benefit package with
                                                                                                          alternative benefit delivery methods,                   a004/a-4.pdf), in Table 3 below, we
                                             American Indians/Alaska Natives
                                                                                                          such as through managed care or                         have prepared an accounting statement
                                             Medicaid beneficiaries.
                                                                                                          employer-based coverage, although                       showing the classification of the
                                             B. Anticipated Effects                                       compliance with all Medicaid rules                      expenditures associated with the
                                                Before section 6044 of the DRA                            other than comparability or                             provisions of this rule. This table
                                             became effective on March 31, 2006,                          statewideness is required unless directly               provides our best estimate of the
                                             State Medicaid programs generally were                       contrary to this statute. An alternative                decrease in Medicaid payments as a
                                             required to offer at minimum the same                        might have been to require the State to                 result of the changes presented in this
                                             standard benefit package to each                             document any deviation from otherwise                   rule. All savings are classified as
                                             individual, regardless of income,                            applicable State plan requirements,                     transfers to the Federal Government, as
                                             eligibility category, or geographic                          much as is required under section 1115                  well as to States.

                                                  TABLE 3—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED EXPENDITURES, FROM FY 2006 TO FY 2014
                                                                                                                             [In $millions]

                                                                                                                                                                 Transfers

                                                                          Category                                                                          Units discount rate
                                                                                                                       Year dollar                                                            Period covered
                                                                                                                                                  7%               3%              0%

                                             Annualized Monetized Transfers ......................................              2006              ¥$506.3          ¥$532.3        ¥$552.22    FYs 2006–2014

                                             From Whom To Whom? ...................................................                        Federal Government to beneficiaries, providers

                                             Annualized Monetized Transfers ......................................              2006              ¥338.5             ¥358.1        ¥373.33    FYs 2006–2014

                                             From Whom to Whom? ....................................................                          State Governments to beneficiaries, providers



                                               Column 1: Category—Contains the                              Column 2: Year Dollar—Contains the                      Column 4: Primary Estimate—
                                             description of the different impacts of                      year to which dollars are normalized;                   Contains the quantitative or qualitative
                                             the rule; it could include monetized,                        that is, the first year that dollars are                impact of the rule for the respective
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             quantitative but not monetized, or                           discounted in the estimate.                             category of impact. Monetized amounts
                                             qualitative but not quantitative or                            Column 3: Unit Discount Rate—                         are generally shown in real dollar terms.
                                             monetized impacts; it also may contain                       Contains the discount rate or rates used                In this case, the federalized annualized
                                             unit of measurement (such as, dollars).                      to estimate the annualized monetized                    monetized primary estimate represents
                                             In this case, the Federal and State                          impacts. In this case, three rates are                  the equivalent amount that, if paid
                                             annualized monetized impacts of the                          used: 7 percent; 3 percent; 0 percent.                  (saved) each year over the period
                                             rule are presented.                                                                                                  covered, would result in the same net


                                        VerDate Mar<15>2010    13:53 Apr 29, 2010    Jkt 220001    PO 00000    Frm 00034   Fmt 4701   Sfmt 4700    E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                          23101

                                             present value of the stream of costs                    List of Subjects in 42 CFR Part 440                    specified by the State, through
                                             (savings) estimated over the period                       Grant programs—health, Medicaid.                     enrollment of the individuals in
                                             covered.                                                                                                       coverage, identified as ‘‘benchmark’’ or
                                                                                                     ■ For the reasons set forth in the
                                                Column 5: Period Covered—Contains                                                                           ‘‘benchmark-equivalent.’’
                                                                                                     preamble, the Centers for Medicare &                      (b) Limitations. A State may only
                                             the years for which the estimate was                    Medicaid Services amends 42 CFR
                                             made.                                                                                                          apply the option in paragraph (a) of this
                                                                                                     chapter IV as set forth below:                         section for an individual whose
                                                Rows: The rows contain the estimates
                                             associated with each specific impact                    PART 440—SERVICES: GENERAL                             eligibility is based on an eligibility
                                             and each discount rate used.                            PROVISIONS                                             category under section 1905(a) of the
                                                                                                                                                            Act that could have been covered under
                                                Estimated Savings—The following                      ■ 1. The authority citation for part 440               the State’s plan on or before February 8,
                                             table shows the discounted costs                        continues to read as follows:                          2006.
                                             (savings) for each discount rate over the                                                                         (c) A State may not require but may
                                                                                                      Authority: Sec. 1102 of the Social Security
                                             period covered. The monetized figures                                                                          offer enrollment in benchmark or
                                                                                                     Act (42 U.S.C.1302).
                                             represent the net present value of the                                                                         benchmark-equivalent coverage to the
                                             impact in the year the rule takes effect.               ■ 2. Subpart C, consisting of § 440.300
                                                                                                                                                            Medicaid eligible individuals listed in
                                             These numbers represent the                             through § 440.390, is revised to read as
                                                                                                                                                            § 440.315. States allowing individuals to
                                             anticipated annual reduction in Federal                 follows:
                                                                                                                                                            voluntarily enroll must be in
                                             and State Medicaid spending under this                  Subpart C—Benchmark Benefit and                        compliance with the rules specified at
                                             rule.                                                   Benchmark-Equivalent Coverage                          § 440.320.
                                                ‘‘From Whom to Whom?’’—In the case                   Sec.                                                      (d) Prior to submitting to the Centers
                                             of a transfer (as opposed to a change in                440.300 Basis.                                         for Medicare and Medicaid Services for
                                             aggregate social welfare as described in                440.305 Scope.                                         approval a State plan amendment to
                                             the OMB Circular), this section                         440.310 Applicability.                                 establish a benchmark or benchmark-
                                             describes the parties involved in the                   440.315 Exempt individuals.                            equivalent benefit plan or an
                                             transfer of costs. In this case, the                    440.320 State plan requirements: Optional
                                                                                                                                                            amendment to substantially modify an
                                                                                                          enrollment for exempt individuals.
                                             expenditures represent a reduction in                   440.325 State plan requirements: Coverage              existing benchmark or benchmark-
                                             Federal and State governments spending                       and benefits.                                     equivalent benefit plan, a State must
                                             on behalf of beneficiaries.                             440.330 Benchmark health benefits                      have provided the public with advance
                                             E. Conclusion                                                coverage.                                         notice of the amendment and reasonable
                                                                                                     440.335 Benchmark-equivalent health                    opportunity to comment with respect to
                                                We estimate that the use of                               benefits coverage.                                such amendment, and have included in
                                             benchmark plans under this rule will                    440.340 Actuarial report for benchmark-                the notice a description of the method
                                             result in total Federal savings of $4.97                     equivalent coverage.                              for assuring compliance with § 440.345
                                                                                                     440.345 EPSDT services requirement.
                                             billion and State savings of $3.36 billion                                                                     of this subpart related to full access to
                                                                                                     440.350 Employer-sponsored insurance
                                             for fiscal years 2006 through 2014. This                     health plans.                                     EPSDT services, and the method for
                                             translates to an annualized Federal                     440.355 Payment of premiums.                           complying with the provisions of
                                             savings of $506.3 million and $532.3                    440.360 State plan requirement for                     section 5006(e) of the American
                                             million at the 7 percent and 3 percent                       providing additional services.                    Recovery and Reinvestment Act of 2009.
                                             discount rates. Also, this yields an                    440.365 Coverage of rural health clinic and
                                             annualized State savings of $338.5                           federally qualified health center (FQHC)          § 440.310   Applicability.
                                             million and $358.1 million at the 7                          services.                                            (a) Enrollment. The State may require
                                             percent and 3 percent discount rates                    440.370 Economy and efficiency.                        ‘‘full benefit eligible’’ individuals not
                                                                                                     440.375 Comparability.                                 excluded in § 440.315 to enroll in
                                             over the same time period of fiscal years
                                                                                                     440.380 Statewideness.                                 benchmark or benchmark-equivalent
                                             2006 through 2014. These savings                        440.385 Delivery of benchmark and
                                             would arise as States use the plans                                                                            coverage.
                                                                                                          benchmark-equivalent coverage through
                                             described by this rule to manage the                                                                              (b) Full benefit eligible. An individual
                                                                                                          managed care entities.
                                             costs of their Medicaid program by                      440.390 Assurance of transportation.                   is a full benefit eligible if determined by
                                             modifying plan benefits for targeted                                                                           the State to be eligible to receive the
                                             beneficiaries. The actual savings will                  Subpart C—Benchmark Benefit and                        standard full Medicaid benefit package
                                             heavily depend on the number of States                  Benchmark-Equivalent Coverage                          under the approved State plan if not for
                                             that ultimately implement these plans,                                                                         the application of the option available
                                                                                                     § 440.300    Basis.                                    under this subpart.
                                             the number of beneficiaries States cover
                                             with these plans, and the specific design                 This subpart implements section 1937
                                                                                                     of the Act, which authorizes States to                 § 440.315   Exempt individuals.
                                             and selection of benchmark plans.
                                                                                                     provide for medical assistance to one or                  Individuals within one (or more) of
                                                For reasons stated above, we are not                 more groups of Medicaid-eligible                       the following categories are exempt
                                             preparing analyses for either the RFA or                individuals, specified by the State under              from mandatory enrollment in
                                             section 1102(b) of the Act because we                   an approved State plan amendment,                      benchmark or benchmark-equivalent
                                             have determined that this rule will not                 through enrollment in coverage that                    coverage.
                                             have a significant economic impact on                   provides benchmark or benchmark-                          (a) The individual is a pregnant
                                             a substantial number of small entities or               equivalent health care benefit coverage.               woman who is required to be covered
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             a significant impact on the operations of                                                                      under the State plan under section
                                             a substantial number of small rural                     § 440.305    Scope.                                    1902(a)(10)(A)(i) of the Act.
                                             hospitals.                                                (a) General. This subpart sets out                      (b) The individual qualifies for
                                                In accordance with the provisions of                 requirements for States that elect to                  medical assistance under the State plan
                                             Executive Order 12866, this regulation                  provide medical assistance to certain                  on the basis of being blind or disabled
                                             was reviewed by the Office of                           Medicaid eligible individuals within                   (or being treated as being blind or
                                             Management and Budget.                                  one or more groups of individuals                      disabled) without regard to whether the


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00035   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23102                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             individual is eligible for Supplemental                    (m) The individual is determined                    have access to all standard State plan
                                             Security Income benefits under title XVI                eligible as medically needy or eligible                services while disenrollment requests
                                             on the basis of being blind or disabled                 because of a reduction of countable                    are being processed.
                                             and including an individual who is                      income based on costs incurred for                        (3) The State must maintain data that
                                             eligible for medical assistance on the                  medical or other remedial care under                   tracks the total number of beneficiaries
                                             basis of section 1902(e)(3) of the Act.                 section 1902(f) of the Act or otherwise                that have voluntarily enrolled in a
                                                (c) The individual is entitled to                    based on incurred medical costs.                       benchmark plan and the total number of
                                             benefits under any part of Medicare.                                                                           individuals that have disenrolled from
                                                                                                     § 440.320 State plan requirements:                     the benchmark plan.
                                                (d) The individual is terminally ill
                                                                                                     Optional enrollment for exempt individuals.
                                             and is receiving benefits for hospice
                                             care under title XIX.                                      (a) General rule. A State plan that                 § 440.325 State plan requirements:
                                                                                                     offers exempt individuals as defined in                Coverage and benefits.
                                                (e) The individual is an inpatient in
                                             a hospital, nursing facility, intermediate              § 440.315 the option to enroll in                        Subject to requirements in § 440.345
                                             care facility for the mentally retarded, or             benchmark or benchmark-equivalent                      and § 440.365, States may elect to
                                             other medical institution, and is                       coverage must identify in its State plan               provide any of the following types of
                                             required, as a condition of receiving                   the exempt groups for which this                       health benefits coverage:
                                             services in that institution under the                  coverage is available, and must comply                   (a) Benchmark coverage in accordance
                                             State plan, to spend for costs of medical               with the following provisions:                         with § 440.330.
                                                                                                       (1) In any case in which the State                     (b) Benchmark-equivalent coverage in
                                             care all but a minimal amount of the
                                                                                                     offers an exempt individual the option                 accordance with § 440.335.
                                             individual’s income required for
                                                                                                     to obtain coverage in a benchmark or
                                             personal needs.                                                                                                § 440.330 Benchmark health benefits
                                                                                                     benchmark-equivalent benefit package,
                                                (f) The individual is medically frail or                                                                    coverage.
                                                                                                     the State must effectively inform the
                                             otherwise an individual with special                                                                              Benchmark coverage is health benefits
                                                                                                     individual prior to enrollment that the
                                             medical needs. For these purposes, the                                                                         coverage that is equal to the coverage
                                                                                                     enrollment is voluntary and that the
                                             State’s definition of individuals who are                                                                      under one or more of the following
                                                                                                     individual may disenroll from the
                                             medically frail or otherwise have special                                                                      benefit plans:
                                                                                                     benchmark or benchmark-equivalent
                                             medical needs must at least include                                                                               (a) Federal Employees Health Benefit
                                                                                                     coverage at any time and regain
                                             those individuals described in                                                                                 Plan Equivalent Coverage (FEHBP—
                                                                                                     immediate access to standard full
                                             § 438.50(d)(3) of this chapter, children                                                                       Equivalent Health Insurance Coverage).
                                                                                                     Medicaid coverage under the State plan.
                                             with serious emotional disturbances,                      (2) Prior to any enrollment in                       A benefit plan equivalent to the
                                             individuals with disabling mental                       benchmark or benchmark-equivalent                      standard Blue Cross/Blue Shield
                                             disorders, individuals with serious and                 coverage, the State must inform the                    preferred provider option service benefit
                                             complex medical conditions, and                         exempt individual of the benefits                      plan that is described in and offered to
                                             individuals with physical and/or mental                 available under the benchmark or                       Federal employees under 5 U.S.C.
                                             disabilities that significantly impair                  benchmark-equivalent benefit package                   8903(1).
                                             their ability to perform one or more                    and the costs under such a package and                    (b) State employee coverage. Health
                                             activities of daily living.                             provide a comparison of how they differ                benefits coverage that is offered and
                                                (g) The individual qualifies based on                from the benefits and costs available                  generally available to State employees
                                             medical condition for medical                           under the standard full Medicaid                       in the State.
                                             assistance for long-term care services                  program. The State must also inform                       (c) Health maintenance organization
                                             described in section 1917(c)(1)(C) of the               exempt individuals that they may                       (HMO) plan. A health insurance plan
                                             Act.                                                    disenroll at any time and provide them                 that is offered through an HMO, (as
                                                (h) The individual is an individual                  with information about the process for                 defined in section 2791(b)(3) of the
                                             with respect to whom child welfare                      disenrolling.                                          Public Health Service Act) that has the
                                             services are made available under part                    (3) The State must document in the                   largest insured commercial, non-
                                             B of title IV to children in foster care                exempt individual’s eligibility file that              Medicaid enrollment in the State.
                                             and individuals with respect to whom                    the individual was informed in                            (d) Secretary-approved coverage. Any
                                             adoption or foster care assistance is                   accordance with this section prior to                  other health benefits coverage that the
                                             made available under part E of title IV,                enrollment, was given ample time to                    Secretary determines, upon application
                                             without regard to age.                                  arrive at an informed choice, and                      by a State, provides appropriate
                                                (i) The individual is a parent or                    voluntarily and affirmatively chose to                 coverage to meet the needs of the
                                             caretaker relative whom the State is                    enroll in the benchmark or benchmark-                  population provided that coverage.
                                             required to cover under section 1931 of                 equivalent benefit package.                            States wishing to elect Secretarial
                                             the Act.                                                  (4) For individuals who the State                    approved coverage should submit a full
                                                (j) The individual is a woman who is                 determines have become exempt                          description of the proposed coverage,
                                             receiving medical assistance by virtue of               individuals while enrolled in                          (including a benefit-by-benefit
                                             the application of sections                             benchmark or benchmark-equivalent                      comparison of the proposed plan to one
                                             1902(a)(10)(ii)(XVIII) and 1902(aa) of the              coverage, the State must comply with                   or more of the three other benchmark
                                             Act.                                                    the requirements in paragraphs (a)(1)                  plans specified above or to the State’s
                                                (k) The individual qualifies for                     through (a)(3) of this section above                   standard full Medicaid coverage
                                             medical assistance on the basis of                      within 30 days after such determination.               package under section 1905(a) of the
wwoods2 on DSKDVH8Z91PROD with RULES3




                                             section 1902(a)(10)(A)(ii)(XII) of the Act.               (b) Disenrollment Process. (1) The                   Act), and of the population to which the
                                                (l) The individual is only covered by                State must act upon requests promptly                  coverage would be offered. In addition,
                                             Medicaid for care and services                          for exempt individuals who choose to                   the State should submit any other
                                             necessary for the treatment of an                       disenroll from benchmark or                            information that would be relevant to a
                                             emergency medical condition in                          benchmark-equivalent coverage.                         determination that the proposed health
                                             accordance with section 1903(v) of the                    (2) The State must have a process in                 benefits coverage would be appropriate
                                             Act.                                                    place to ensure that exempt individuals                for the proposed population. The scope


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00036   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                                                  Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations                                           23103

                                             of a Secretary-approved health benefits                 § 440.340 Actuarial report for benchmark-              benchmark-equivalent benefits plan,
                                             package will be limited to benefits                     equivalent coverage.                                   these individuals have access to the full
                                             within the scope of the categories                         (a) A State plan amendment that                     EPSDT benefit.
                                             available under a benchmark coverage                    would provide for benchmark-                             (2) State Plan requirement. The State
                                             package or the standard full Medicaid                   equivalent health benefits coverage                    must include a description of how the
                                             coverage package under section 1905(a)                  described in § 440.335, must include an                additional benefits will be provided,
                                             of the Act.                                             actuarial report. The actuarial report                 how access to additional benefits will be
                                                                                                     must contain an actuarial opinion that                 coordinated and how beneficiaries and
                                             § 440.335 Benchmark-equivalent health                   the benchmark-equivalent health                        providers will be informed of these
                                             benefits coverage.
                                                                                                     benefits coverage meets the actuarial                  processes in order to ensure that these
                                               (a) Aggregate actuarial value.                        requirements set forth in § 440.335. The               individuals have access to the full
                                             Benchmark-equivalent coverage is                        report must also specify the benchmark                 EPSDT benefit.
                                             health benefits coverage that has an                    coverage used for comparison.                            (b) [Reserved]
                                             aggregate actuarial value, as determined                   (b) The actuarial report must state that
                                             under § 440.340, that is at least                                                                              § 440.350 Employer-sponsored insurance
                                                                                                     it was prepared according to the                       health plans.
                                             actuarially equivalent to the coverage                  following requirements:
                                             under one of the benchmark benefit                         (1) By an individual who is a member                  (a) A State may provide benchmark or
                                             packages described in § 440.330 for the                 of the American Academy of Actuaries                   benchmark-equivalent coverage by
                                             identified Medicaid population to                       (AAA).                                                 obtaining employer sponsored health
                                             which it will be offered.                                  (2) Using generally accepted actuarial              plans (either alone or with additional
                                                                                                     principles and methodologies of the                    services covered separately under
                                               (b) Required coverage. Benchmark-
                                                                                                     AAA.                                                   Medicaid) for individuals with access to
                                             equivalent health benefits coverage
                                                                                                        (3) Using a standardized set of                     private health insurance.
                                             must include coverage for the following                                                                          (b) The State must assure that
                                             categories of services:                                 utilization and price factors.
                                                                                                        (4) Using a standardized population                 employer sponsored plans meet the
                                               (1) Inpatient and outpatient hospital                                                                        requirements of benchmark or
                                             services.                                               that is representative of the population
                                                                                                     involved.                                              benchmark-equivalent coverage,
                                               (2) Physicians’ surgical and medical                     (5) Applying the same principles and                including the economy and efficiency
                                             services.                                               factors in comparing the value of                      requirements at § 440.370.
                                               (3) Laboratory and x-ray services.                    different coverage (or categories of                     (c) A State may provide benchmark or
                                               (4) Well-baby and well-child care,                    services).                                             benchmark-equivalent coverage through
                                             including age-appropriate                                  (6) Without taking into account any                 a combination of employer sponsored
                                             immunizations.                                          differences in coverage based on the                   health plans and additional benefit
                                               (5) Emergency services.                               method of delivery or means of cost                    coverage provided by the State that
                                                                                                     control or utilization used.                           wraps around the employer sponsored
                                               (6) Family planning services and
                                                                                                        (7) Taking into account the ability of              health plan which, in the aggregate,
                                             supplies and other appropriate
                                                                                                     the State to reduce benefits by                        results in benchmark or benchmark-
                                             preventive services, as designated by the
                                                                                                     considering the increase in actuarial                  equivalent level of coverage for those
                                             Secretary.
                                                                                                     value of health benefits coverage offered              individuals.
                                               (c) Additional coverage. (1) In
                                             addition to the categories of services of               under the State plan that results from                 § 440.355   Payment of premiums.
                                             this section, benchmark-equivalent                      the limitations on cost sharing (with the
                                                                                                                                                               Payment of premiums by the State,
                                             coverage may include coverage for any                   exception of premiums) under that
                                                                                                                                                            net of beneficiary contributions, to
                                             additional services in a category                       coverage.
                                                                                                                                                            obtain benchmark or benchmark-
                                             included in the benchmark plan or                          (c) The actuary preparing the opinion
                                                                                                                                                            equivalent benefit coverage on behalf of
                                             described in section 1905(a) of the Act.                must select and specify the standardized
                                                                                                                                                            beneficiaries under this section will be
                                                                                                     set of factors and the standardized
                                               (2) If the benchmark coverage package                                                                        treated as medical assistance under
                                                                                                     population to be used in paragraphs
                                             used by the State for purposes of                                                                              section 1905(a) of the Act.
                                                                                                     (b)(3) and (b)(4) of this section.
                                             comparison in establishing the aggregate                   (d) The State must provide sufficient               § 440.360 State plan requirement for
                                             actuarial value of the benchmark-                       detail to explain the basis of the                     providing additional services.
                                             equivalent package includes any of the                  methodologies used to estimate the
                                             following four categories of services:                                                                           In addition to the requirements of
                                                                                                     actuarial value or, if requested by CMS,               § 440.345 the State may elect to provide
                                             Prescription drugs; mental health                       to replicate the State’s result.
                                             services; vision services; and hearing                                                                         additional coverage to individuals
                                             services; then the actuarial value of the               § 440.345    EPSDT services requirement.
                                                                                                                                                            enrolled in benchmark or benchmark-
                                             coverage for each of these categories of                                                                       equivalent plans. The State plan must
                                                                                                       (a) The State must assure access to                  describe the populations covered and
                                             service in the benchmark-equivalent                     early and periodic screening, diagnostic
                                             coverage package must be at least 75                                                                           the payment methodology for these
                                                                                                     and treatment (EPSDT) services through                 services. Additional services must be in
                                             percent of the actuarial value of the                   benchmark or benchmark-equivalent
                                             coverage for that category of service in                                                                       categories that are within the scope of
                                                                                                     plan benefits or as additional benefits                the benchmark coverage, or are
                                             the benchmark plan used for                             provided by the State for any child
                                             comparison by the State.                                                                                       described in section 1905(a) of the Act.
                                                                                                     under 21 years of age eligible under the
wwoods2 on DSKDVH8Z91PROD with RULES3




                                               (3) If the benchmark coverage package                 State plan in a category under section                 § 440.365 Coverage of rural health clinic
                                             does not cover one of the four categories               1902(a)(10)(A) of the Act.                             and federally qualified health center (FQHC)
                                             of services in paragraph (c)(2) of this                   (1) Sufficiency. Any additional                      services.
                                             section, then the benchmark-equivalent                  EPSDT benefits not provided by the                       If a State provides benchmark or
                                             coverage package may, but is not                        benchmark or benchmark-equivalent                      benchmark-equivalent coverage to
                                             required to, include coverage for that                  plan must be sufficient so that, in                    individuals, it must assure that the
                                             category of service.                                    combination with the benchmark or                      individual has access, through that


                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00037   Fmt 4701   Sfmt 4700   E:\FR\FM\30APR3.SGM   30APR3
                                             23104                Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Rules and Regulations

                                             coverage or otherwise, to rural health                  individuals without regard to                          transportation to and from medically
                                             clinic services and FQHC services as                    comparability.                                         necessary covered Medicaid services,
                                             defined in subparagraphs (B) and (C) of                                                                        the State must nevertheless assure that
                                                                                                     § 440.380    Statewideness.
                                             section 1905(a)(2) of the Act. Payment                                                                         emergency and non-emergency
                                             for these services must be made in                        States have the option to amend their
                                                                                                                                                            transportation is covered for
                                             accordance with the payment provisions                  State plan to provide benchmark or
                                                                                                                                                            beneficiaries enrolled in the benchmark
                                             of section 1902(bb) of the Act.                         benchmark-equivalent coverage to
                                                                                                     individuals without regard to                          or benchmark-equivalent plan, as
                                             § 440.370    Economy and efficiency.                    statewideness.                                         required under § 431.53 of this chapter.
                                               Benchmark and benchmark-                                                                                     (Catalog of Federal Domestic Assistance
                                                                                                     § 440.385 Delivery of benchmark and
                                             equivalent coverage and any additional                                                                         Program No. 93.778, Medical Assistance
                                                                                                     benchmark-equivalent coverage through
                                             benefits must be provided in accordance                 managed care entities.                                 Program)
                                             with Federal upper payment limits,                        In implementing benchmark or                           Dated: January 21, 2010.
                                             procurement requirements and other                      benchmark-equivalent benefit packages,                 Charlene Frizzera,
                                             economy and efficiency principles that                  States must comply with the managed                    Acting Administrator, Centers for Medicare
                                             would otherwise be applicable to the                    care provisions at section 1932 of the                 & Medicaid Services.
                                             services or delivery system through                     Act and part 438 of this chapter, if                     Approved: March 2, 2010.
                                             which the coverage and benefits are                     benchmark and benchmark-equivalent
                                             obtained.                                                                                                      Kathleen Sebelius,
                                                                                                     benefits are provided through a
                                                                                                     managed care entity.                                   Secretary.
                                             § 440.375    Comparability.
                                                                                                                                                            [FR Doc. 2010–9734 Filed 4–29–10; 8:45 am]
                                               States have the option to amend their                 § 440.390    Assurance of transportation.
                                                                                                                                                            BILLING CODE 4120–01–P
                                             State plan to provide benchmark or                        If a benchmark or benchmark-
                                             benchmark-equivalent coverage to                        equivalent plan does not include
wwoods2 on DSKDVH8Z91PROD with RULES3




                                        VerDate Mar<15>2010   13:53 Apr 29, 2010   Jkt 220001   PO 00000   Frm 00038   Fmt 4701   Sfmt 9990   E:\FR\FM\30APR3.SGM   30APR3

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:4
posted:8/22/2011
language:English
pages:38