CMS Is Seeking Guidance on Medicaid Coverage for Children Provided Across State Lines

Foley Hoag LLP - Medicaid and the Law
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Foley Hoag LLP - Medicaid and the Law

The Medicaid program generally has more generous coverage rules for children than for adults. For example, under the Early and Periodic Screening, Diagnostic and Testing (EPSDT) provisions of the Medicaid statute, if a child’s medical condition is identified via an EPSDT screening, the state’s Medicaid plan must cover treatment for that condition, even if the necessary treatment consists of an optional benefit under the state Medicaid plan.

But what happens if the state where the child lives does not have a health care provider that is capable of treating the child’s medical condition? Suppose the child has an extremely rare medical disease, there are only ten centers of excellence in the entire United States that have the ability and expertise to treat the condition, and not one of those ten centers are located in a state where the child lives. The EPSDT benefit would be an empty promise if a child on Medicaid could not access treatment for a medical condition identified in an EPSDT screening solely by virtue of where they live.

On January 21, CMS published a request for information (RFI) in the Federal Register that seeks to address this concern. As part of the 21st Century Cures Act, Congress directed CMS to issue guidance on this issue. In part, it’s a tough problem to solve: let’s say that a child living in a rural community in Montana needs treatment for a medical condition and the closest treatment center is in Denver, or Salt Lake City. Should the provider in Denver or Salt Lake City be forced to enroll in Montana’s Medicaid program, even though that provider might only see two or three patients a year from Montana? What if Montana’s Medicaid program doesn’t have a mechanism to pay for the required medical treatment? What if the Medicaid program where the child lives has a different match rate than the state where the treatment is provided? What if the child is enrolled in a Medicaid managed care plan, and the most logical center of excellence to treat the child’s medical condition is not an enrolled provider in the child’s Medicaid managed care plan?

CMS, through its RFI, seeks comments on all of these questions, and more. In all, CMS has asked for information on 11 different topics, including:

  • Best practices regarding care coordination for out-of-state providers for care that is provided in both the emergency and non-emergency setting;
  • Financial, regulatory and administrative barriers that children and providers encounter that may prevent children with complex medical conditions from receiving care across state lines;
  • Individual financial barriers (such as travel expenses and work hours lost) that prevent children with complex medical conditions from receiving care from out of state providers in a timely fashion;
  • Processes that states could employ to enroll out-of-state providers, including efforts to streamline those processes;
  • Challenges regarding referrals to out of state providers; and
  • Best practices for determining contractual terms and payment rates for out of state providers in both the fee-for-service and Medicaid managed care context.

CMS hopes that interested parties will submit comments. The agency has authorized a 60-day comment period, so comments will be due on March 20, 2020. There are two ways to submit comments. First, commenters can do so electronically on http://www.regulations.gov (follow the “submit a comment” instructions and refer to file code CMS-2324-NC). Alternatively, commenters can send comments by US mail to:

Centers for Medicare & Medicaid Services

U.S. Department of Health and Human Services

Attention: CMS-2324-NC

Post Office Box 8016

Baltimore, MD 21244-8010

To be certain, this is not a new problem. State Medicaid agencies, centers of excellence, and patients face the dilemmas with out of state enrollment all the time. The federal government also has an interest in ensuring that states have some type of thorough screening process to enroll qualified providers; after all, the federal government pays at least half – and in some cases, much more – of a state’s share of medical assistance expenditures. With this RFI, CMS has taken the first step to address this important access to care issue.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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