NHeLP_Comments_to_CMS-R-53_Cost-Sharing_Preprint

Emily Spitzer
Executive Director

March 17, 2014
By Electronic Submission

Board of Directors
Marc Fleischaker
Chair
Arent Fox, LLP
Ninez Ponce
Vice-Chair
UCLA School of Public
Health
Jean Hemphill
Treasurer
Ballard Spahr Andrews &
Ingersoll
Janet Varon
Secretary
Northwest Health Law
Advocates
Elisabeth Benjamin
Community Service Society
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Daniel Cody
Reed Smith, LLP
Robert B. Greifinger, MD
John Jay College of
Criminal Justice
Marilyn Holle
Disability Rights California
Robert N. Weiner
Arnold & Porter, LLP

Center for Medicare & Medicaid Services
Office of Strategic Operations and Regulatory Affairs
Division of Regulations Development
Room C4–26–05,
7500 Security Boulevard,
Baltimore, MD 21244–1850
RE: Agency Information Collection Activities: Form CMS-R-5,
State Plan Amendment Preprint for Medicaid Cost Sharing
OMB Control Number: 0938-1148
Dear Sir or Madam:
The National Health Law Program (NHeLP) is a public interest law
firm working to advance access to quality health care and protect
the legal rights of low-income and underserved people. We
appreciate the opportunity to provide comments on CMS’ draft
preprint for State Plan Amendments (SPAs) concerning Medicaid
cost sharing, published in the Federal Register on February 14,
2014.
We generally support CMS’ effort to convert SPA preprints into
PDF fillable documents to streamline and standardize the
administrative process. We also commend CMS for including a
clear statement on page 3 of the fillable pdf (“508_Copy of
Medicaid Cost Sharing_FINAL_2-3-14_clean2”) that requires
states to undergo a public comment process for any SPA that
establishes or substantially modifies Medicaid cost sharing. Below
we offer several suggestions where the draft language appears to
deviate slightly from the new Medicaid regulations or would
improve transparency in the SPA process by requesting more
details from the states.
Comments on draft form CMS-R-5 [OMB Control No. 09381148]
Cost-sharing for otherwise exempt individuals

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In the limited cases of copays for nonemergency use of the Emergency Department or
for non-preferred medications, the statute permits a state to establish copays for
otherwise exempt individuals, so long as the copays do not “exceed nominal limits” as
established in §1916. 42 U.S.C. § 1396o-1( c)(2)(B), (e)(2)(B). The nominal limits for
cost sharing, as set out in the new regulations, correspond to the maximum allowable
cost sharing for individuals with incomes below 100% FPL, as defined in 42 C.F.R.
§ 447.52(b).
Where the draft preprint describes cost sharing for nonemergency ED use and nonpreferred medication (at pages 4,5,6 and 7), it appropriately asks whether the state will
charge cost sharing for exempt individuals. If a state answers “yes,” the next statement
reads “The cost sharing charges …. imposed on otherwise exempt individuals are the
same as the charges imposed on non-exempt individuals.” This statement implies
that a state can charge the same cost-sharing for non-exempt individuals and otherwise
exempt individuals, though the latter can only be charged based on the nominal costsharing limit applicable to individuals below 100% FPL. We recommend that CMS clarify
that the statute permits only nominal cost sharing on otherwise exempt individuals.


RECOMMENDATION: Add the bolded qualifying phrase to the relevant
sentences discussing cost sharing for otherwise exempt individuals: “The cost
sharing charges for [non-preferred drugs or nonemergency ED use] imposed on
otherwise exempt individuals are the same as the nominal charges imposed on
non-exempt individuals with incomes below 100% FPL.”

Beneficiary and Public Notice Requirements
We strongly support the requirement for states to provide a reasonable opportunity for
public comment before submitting proposals for substantial cost sharing modifications.
We also support the explicit reference to making cost sharing schedule publicly
available. However, we recommend that this paragraph require states to post the cost
sharing schedule on their Medicaid website. Every state has a Medicaid website and
this does not present an undue administrative burden. There is no good reason for a
state not to post its cost sharing schedule, but the language in the preprint seems to
permit a state to not do so (so long as it used other mechanisms.)


RECOMMENDATION: Add the following phrase to the paragraph on Public
Notice Requirements (at page 3): “Consistent with 42 C.F.R. 447.57, the state
makes available a public schedule describing current cost sharing requirements
in a manner that ensures that affected applicants, beneficiaries and providers
are likely to have access to the notice. This includes posting the schedule to
a publicly available website. Prior to submitting a SPA which establishes…”

Enforceable Cost Sharing
The preprint addresses enforceable cost sharing in two places (at pages 1and 8), but
only asks for details about enforceable cost-sharing in the “targeting” follow-up
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questions on page 8. A state that does not do any targeting might never see the
requirement for additional details on its enforceable cost sharing. A state must provide
these details in its SPA proposal so the public will be able to provide meaningful
comments on the administration of any enforceable cost sharing measure. We
recommend the detailed questions about enforceable cost-sharing be included on page
1.
Aggregate Cost Sharing Limits
We support CMS requirement in the new cost sharing regulations that the 5%
aggregate cap apply to all Medicaid enrollees on a quarterly or monthly bases. One of
the key regulatory requirements for an effective aggregate cap process is that states
develop a tracking mechanism that does not rely on beneficiary documentation. The
draft preprint correctly acknowledges this requirement. However, we note that in states
where a Managed Care Organization tracks each family’s incurred cost sharing, there
may be additional premiums, copays or other cost sharing incurred by the family for
Medicaid services not included in the MCO contract. To account for such cases, the
SPA preprint should require states to clearly delineate in its description of the tracking
mechanism how the state and the MCO will combine MCO cost sharing with any cost
sharing for carved out or additional services to satisfy the regulatory requirement.


RECOMMENDATION: Add the following two additional boxes to the preprint
section on aggregate limits, nested under the managed care organization box (at
page 15):
o “[y/n] The state, in each contract with a Managed Care entity, clearly
delineates the respective responsibilities of MCE and the State with
regard to tracking and aggregating all the potential Medicaid
premiums and cost sharing in a household, both within and outside
of the scope of the MCO’s Medicaid services.”
o “The process the state uses to aggregate Medicaid cost sharing
identified by the MCO tracking system with any additional Medicaid
premiums or cost sharing a family incurs due to Medicaid services
accessed outside the scope of the MCO’s contract (e.g. carveouts,
other individuals not covered by the MCO), is as follows: [ ]”

Family Income and Medicaid Premiums
While we understand that this collection of information may be strictly limited to
Medicaid cost sharing, we note that the general supporting statement for CMS-R-5 also
mentions other important provisions of the new Medicaid premium and cost sharing
regulations, including Medicaid premiums and the state’s process for determining
household size and income for cost sharing purposes. The template put up for comment
does not mention either of these important issues. Perhaps these other elements are
slated for future revisions, but they should undoubtedly be included in whatever final
SPA preprint CMS approves for Medicaid Premiums and Cost Sharing.
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Thank you again for considering these comments. If you have any questions or need
any further information, please contact David Machledt ([email protected]; 202384-1271), Policy Analyst, at the National Health Law Program.
Sincerely,
Emily Spitzer
Executive Director

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