Today,
the Centers for Medicare & Medicaid Services (CMS) posted additional
Frequently Asked Questions (FAQs) to the Medicaid.gov website to aid state
Medicaid and Children’s Health Insurance Program (CHIP) agencies in their
response to the 2019 Novel Coronavirus (COVID-19) outbreak. CMS is
taking this action in its continuing efforts to protect the health and
safety of providers and patients, including those who are covered by
Medicaid and CHIP.
A news
alert with further information can be found here: https://www.cms.gov/newsroom/press-releases/covid-19-response-news-alert-cms-frequently-asked-questions-faqs-state-medicaid-and-childrens-health
As we answer new questions, those responses will
be integrated into a comprehensive set of FAQs. The complete COVID-19 FAQs
for State Medicaid and CHIP agencies, including those previously issued and
those released today, can be found here: https://www.medicaid.gov/state-resource-center/disaster-response-toolkit/covid19/index.html
Newly answered questions are identified as such
in the document, and are also included in the body of this email for easy
reference. Additionally, Medicaid and Children’s Health Insurance Program
(CHIP) agencies can send additional questions directly to the mailbox: MedicaidCOVID19@cms.hhs.gov.
These
FAQs, and earlier CMS actions in response to the COVID-19 virus, are part
of the ongoing White House Task Force efforts. To keep up with the
important work CMS is doing in response to COVID-19, please visit the Current
Emergencies Website. Additionally, CMS has launched a
dedicated, Medicaid.gov, COVID-19
resource page that will be continually updated
with relevant information.
CMS is available to provide technical assistance
to states to support your needs in responding to the COVID-19
virus. If you have questions or would like technical assistance in
this area, please contact your state lead.
Below are the new FAQs that CMS posted on Medicaid.gov
today:
Benefit Flexibilities
Should a drug shortage develop, if a
drug is provided by a manufacturer not participating in the national drug
rebate program, will FFP be available?
Generally, if a state plan provides
medical assistance for a drug that meets the definition of a covered
outpatient drug (COD) as defined at §1927(k), section 1927 must be complied
with in order for FFP to be available. So, if that COD is not
provided by a manufacturer participating in the Medicaid drug rebate program,
that is, the COD is not distributed by a manufacturer with a National Drug
Rebate Agreement, the drug does not
qualify for FFP. To be clear, it is not required that a drug meet the
definition of a COD in order to qualify for FFP. If a drug is a
prescribed drug, as defined in regulation at 42 C.F.R. §440.120, it may
still qualify for FFP. However, if that prescribed drug meets the
definition of a COD, it is not eligible for FFP unless section 1927 is also
complied with (e.g., the manufacturer of the drug has in effect a National
Drug Rebate Agreement). Please see State Release # 178. States
can e-mail the CMS RxDRUGPolicy@CMS.HHS.gov
resource mailbox with any questions related to the medication status.
Are Medicaid home health agencies
able to collect the samples necessary for the diagnostic testing for
COVID-19?
If a physician orders the diagnostic
test and the sample collection needed is within the scope of practice for
the home health nurse or can be delegated to other practitioners, based on
the state’s nurse practice act, Medicaid may cover the collection under the
home health benefit. If it is not within the scope of practice, CMS
encourages states to explore state emergency or other authorities to remove
these restrictions during this public health emergency. CMS is
available for technical assistance.
Pursuant to 42 C.F.R. §440.70(f), if
the sample collection is a beneficiary’s first utilization of the home
health benefit, a face-to-face encounter must have occurred no longer than
90 days before or 30 days after the start of services and must be related
to the primary reason the beneficiary requires home health services. See
the following question for additional information on flexibilities related
face-to-face encounters.
Are there any available flexibilities
in implementing the requirement for face-to-face encounters under Medicaid
home health? Can telehealth be utilized?
Yes. For initiation of home
health services, face-to-face encounters may occur using telehealth as
described at 42 C.F.R. §440.70(f)(6). A physician, nurse practitioner
or clinical nurse specialist, a certified nurse midwife, a physician
assistant, or attending acute or post-acute physician for beneficiaries
admitted to home health immediately after an acute or post-acute stay may
perform the face-to-face encounter. The allowed non-physician
practitioner must communicate the clinical findings of the face-to-face
encounter to the ordering physician. Those clinical findings must be
incorporated into the beneficiary’s written or electronic medical
record. Additionally, the ordering physician must document that the
face-to-face encounter occurred within the required timeframes prior to the
start of home health services and indicate the practitioner who conducted
the encounter and the date of the encounter. A state plan amendment
would only be necessary to revise existing state plan language that imposes
telehealth parameters that would restrict this practice. As is
discussed above and at https://www.medicaid.gov/medicaid/benefits/telemedicine/index.html,
states are not required to submit separate state plan amendments for
coverage or reimbursement of telehealth services if they decide to
reimburse for telehealth services in the same manner or at the same rate
paid for face-to-face services. A state plan amendment would be
necessary to accommodate any revisions to payment methodologies to account
for telehealth costs.
Can Pre-Admission Screening and
Resident Review (PASRR) Level 1 and Level 2 evaluations be conducted
remotely as opposed to through a face-to-face visit?
Yes. The PASRR statutory
provisions require all applicants to and residents of Medicaid-certified
nursing facilities (NFs) be screened for mental illness and intellectual
disability, and, if necessary, be provided specialized services while in
the NF.
Federal regulations do not prohibit
PASRR Level 1 and Level 2 evaluations from being conducted by telephone or
through another electronic medium. Unless the state has a specific
requirement that PASRR Level 2 evaluations be conducted in a face-to-face
interview, there is no need to amend language in the state plan.
States can also request an 1135
waiver to temporarily suspend pre-admission screening and resident review
Level 1 and Level 2 for 30 days.
Financing Flexibilities
Are “telephonic services” provided by
federally qualified health centers (FQHCs) or rural health clinics (RHCs)
eligible for FFP during and immediately following a declared state of
emergency?
Yes, FFP is available for telephonic
services. If a state’s approved state plan excludes FQHC/RHC services
from being provided telephonically, CMS can work with the state to expedite
processing of a state plan amendment to lift this restriction.
Do states need to a submit a SPA if
they pay the same PPS rate for telephonic services provided by FQHCs or
RHCs as they pay for services delivered in-person?
No state plan amendment is needed if
the state plan does not specifically define a visit for the purpose of
reimbursing FQHC services as a “face to face encounter” with an eligible
provider type. If it does, and states would like to reimburse
telephonically delivered services at the PPS rate, they would need to
submit a SPA amending the definition of a visit.
Can states pay FQHCs and RHCs an
amount less than the PPS rate on a FFS basis with an approved SPA or
waiver? Additionally, if a service is provided telephonically, can
the state pay the provider an amount lower than PPS for the telephonic
service delivered via telehealth?
If a service is covered within the
scope of the FQHC/RHC benefit, section 1902(bb) of the Act requires a state
to pay a provider using the state plan prospective payment system (PPS)
rate or an alternative payment methodology (APM) that pays at least the PPS
rate. For services that are not covered as part of the FQHC/RHC benefit,
a state may pay providers using the state plan fee-for-service payment
methodology established for that service. Rates for those services
may be lower than the PPS or an APM paid for FQHC/RHC services, provided
the rate is consistent with all other applicable requirements, including
section 1902(a)(30)(A) of the Act. This policy applies whether a
service is delivered face-to-face or telephonically.
Do states need a SPA or waiver to
authorize payment for FQHC or RHC services provided off the clinic premises,
including at a temporary shelter, a beneficiary’s home, or any location
other than the clinic but within the boundaries of the state of emergency
proclamation?
FQHCs and RHCs generally may provide
services outside the four walls of the clinic. If a state is
concerned that something in its existing state plan might prevent that, CMS
can work with the state to determine whether a state plan amendment might
be necessary. If a state plan amendment is necessary, CMS can work
with the state to expedite processing it. We encourage states to
maximize this flexibility during the emergency response to ensure necessary
care is delivered within communities.
Healthcare Common Procedure Coding
System (HCPCS) code G0071 is reimbursable to FQHC and RHCs for virtual communication
activities, including telephone calls. Do states need to submit a SPA
to activate that code?
States do not need to submit a state
plan amendment to activate HCPCS code G0071 unless the state decides to pay
a rate for that code that is different from the face-to-face encounter rate
approved in the Medicaid state plan.
Managed Care Flexibilities
How can states implement or update
Medicaid or CHIP managed care telehealth policies, including allowing
remote monitoring and reimbursement of telehealth services at the in-person
clinical services rate?
The Trump Administration encourages
states to take advantage of broad flexibility to deliver services via
telehealth in Medicaid and CHIP to help prevent the spread of the
Coronavirus as is discussed at https://www.medicaid.gov/medicaid/benefits/telemedicine/index.html
and https://www.medicaid.gov/state-resource-center/disaster-response-toolkit/covid19/index.html.
The available telehealth flexibility allows Medicaid beneficiaries to
receive a wide range of healthcare services from their providers without
having to travel to a health care facility so that they can limit risk of
exposure and spread of the virus. In fee-for-service, states are not
required to submit separate state plan amendments for coverage or
reimbursement of telehealth services if they decide to reimburse for
telehealth services in the same manner or at the same rate paid for
face-to-face services. Medicaid guidelines require all providers to
practice within the scope of their State Practice Act, and states may have
laws and regulations that govern the scope of telemedicine coverage.
In fee-for-service, a state plan amendment would be necessary to
accommodate any revisions to payment methodologies to account for
telehealth costs.
If a benefit is covered under the
state plan or Medicaid waiver (e.g., section 1915(b) or 1915(c)) or a state
demonstration (e.g., section 1115), CMS encourages states to amend managed
care contracts (if not already included in the contract) to extend the same
telehealth flexibilities authorized under their state plan, waiver, or demonstration
for services covered under the contract. Absent coverage under the
state plan or otherwise authorized through a Medicaid waiver or
demonstration, services furnished under telehealth through managed care
could also be provided as:
- In-lieu of services
(42 C.F.R. 438.3(e)(2) and 42 C.F.R. §457.1201(e)). Under these
regulations, alternate services or services furnished in an
alternative setting covered by a managed care plan or entity in lieu
of state plan-covered services must be: (i) authorized by the state as
being a medically appropriate and cost-effective substitute for the
covered service or setting under the state plan; (ii) authorized and
identified in the managed care contract; and (iii) not required to be
used by the enrollee in lieu of the state plan-covered service.
In addition, there are specific rate development rules used when a
managed care contract authorizes use of in-lieu of services.
- Additional
services, beyond those in the contract, voluntarily provided by
managed care plans (commonly referred to as value-added services). No
contract amendment is needed; however, the cost of value-added services cannot
be included when determining the capitation rates (per 42 C.F.R.
438.3(e)(1)(i) and 42 C.F.R. §457.1201(e)).
Regarding Medicaid managed care
payment, under 42 C.F.R. §§438.3(c)(1)(ii) and 438.4, final capitation
rates must be actuarially sound and based only upon services covered under
the state plan or waiver authority and represent a payment amount adequate
to allow the managed care organization (MCO), prepaid inpatient health plan
(PIHP) or prepaid ambulatory health plan (PAHP) to efficiently deliver
covered services to Medicaid-eligible individuals in a manner compliant
with contractual requirements. If a state determines a retroactive
adjustment to capitation rates under one or more of its managed care
contracts is necessary for costs eligible for reimbursement, such as
telehealth-related infrastructure costs, retroactive adjustments must be
certified by an actuary in a revised rate certification and submitted as a
contract amendment in accordance with 42 C.F.R. §438.7(c)(2). The
rate certification must describe the rationale for the adjustment and the
data, assumptions and methodologies used to develop the magnitude of the adjustment.
For additional information about telemedicine, visit: https://www.medicaid.gov/medicaid/benefits/telemedicine/index.html.
For CHIP, rates must be based on public or private payment rates for
comparable services for comparable populations, consistent with actuarially
sound principles, as described in 42 C.F.R. §457.1203(a). States that
update their CHIP capitation payments due to telehealth related costs would
not need to submit a rate certification.
Can states allow managed care plans to permit 90-day supplies
of medication at retail and mail-order pharmacies in situations where
90-day medication supplies are clinically appropriate? Can states
allow waivers of early refill requirements during public health
emergencies?
States should review their state
plans and managed care contracts to ensure they have no state restrictions
in place. In general, states have flexibility to establish Medicaid
and CHIP FFS prior authorization and drug utilization review processes that
encompass extended day supplies and early refills for emergency situations
without CMS approval. Some states may need to modify their state plans.
Under CMS managed care regulations,
the need for a contract amendment related to prior authorization, extended
day supplies of medication, and early refills will be dependent upon the
detail included in states’ existing managed care contracts. If existing
managed care contracts do not allow for 90-day supplies of medications or
early refill requirements, states will need to submit a contract
amendment. CMS will prioritize our review and approval of COVID-19
related state plan or contract amendments.
How can states and managed care plans
educate beneficiaries on COVID-19, including CDC best practices for
infection control and medical management, as well as provide COVID-19
information that can be shared with case managers and MCO disease
management staff and partners?
We strongly encourage states and
managed care plans to collaborate on communication of CDC best practices
for infection control and medical management to their Medicaid
enrollees. This information can be found at: https://www.coronavirus.gov.
All relevant CDC guidance is also posted on the CMS website and new
information will be shared with states as it becomes available.
Current guidance is available at: https://www.cms.gov/About-CMS/Agency-Information/Emergency/EPRO/Current-Emergencies/Current-Emergencies-page.
States and managed care plans may share relevant information with case and
care managers. Managed care plans providing written documents to
Medicaid and CHIP beneficiaries will need to comply with information
requirement regulations at 42 C.F.R. §438.10 and 42 C.F.R. §457.1207.
CMS notes that the materials provided by the CDC are compliant with the
“Plain Language Act of 2010” (https://www.cdc.gov/other/plainwriting.html), which requires all federal agencies to write
plainly when they communicate with the public. Therefore, for the
purposes of 42 C.F.R. §438.10(c), CMS considers all CDC materials written
in a manner and format that is easily understood and is readily accessible.
How can states collaborate with managed care plan partners and
community-based organizations, including home-delivery services, to provide
non-medical supports, such as meals and over the counter medications, to
Medicaid and CHIP beneficiaries quarantined or self-quarantined in their
homes?
As long as a benefit is covered under
the state plan or waiver authority, states can add services to managed care
contracts via a contract amendment. See question C.1. for information
regarding adding benefits to state plans or waiver authorities.
Managed care plans also have flexibility to voluntarily provide additional
services beyond those in the contract, referred to as value-added services.
No contract amendment is needed for value added services; however,
the cost of such services cannot be included when determining the
capitation rates.
In emergency circumstances where
utilization and/or costs cannot be estimated, will CMS permit payment for
testing as a non-risk payment outside a capitation payment?
There are multiple approaches under
which states can permit payment for COVID-19 testing in managed care
programs. To be considered a mandatory laboratory service as
described at 1905(a)(3) of the Act and 42 C.F.R. § 440.30, the COVID-19
test must be ordered and provided by or under the direction of a physician
or other licensed practitioner within the appropriate scope of practice as
defined by the state, or ordered by a physician, but provided by referral
laboratory. To meet this definition, the test must be provided in an
office or similar facility other than a hospital outpatient department or
clinic and furnished by a laboratory that meets Clinical Laboratory
Improvement Amendments (CLIA) requirements at Part 493 of the Code of
Federal Regulations. Tests that do not meet these criteria may still be
covered under the optional diagnostic benefit described at 1905(a)(13) of
the Act and 42 C.F.R. § 440.130(a).
To the extent that health plans are
responsible for providing laboratory services, they must cover the COVID-19
test. However, in the event the approved rates are not sufficient to
cover the cost of these tests, states may wish to address through
actuarially sound rate adjustments. States could amend their rates to
include an adjustment for those costs, if such an adjustment is actuarially
sound and the state determines that to be necessary, subject to compliance
with 42 C.F.R. §§ 438.4 through 438.7 regarding rate development and
amendment of capitation rates. States could also create a kick
payment (consistent with actuarial soundness requirements) for managed care
plans to cover the tests, which would require a contract amendment and rate
certification.
States could also pay for the tests
outside of the managed care capitation payment as a non-risk payment:
either as a separate non-risk contract with its managed care plans (see the
definition of “non-risk contract” at 42 C.F.R. §438.2[1] or as an
amendment to its existing managed care plan contracts to include a non-risk
payment. If a state chooses to amend its existing contracts to
include a non-risk payment, the state would need to comply with upper
payment limits outlined at 42 C.F.R. §447.362 consistent with the
requirements for non-risk contracts. For CHIP, states could follow
the same approach of paying for the tests outside of the managed care
capitation payment as a non-risk payment.
Additionally, states have the option
to pay for the tests under their Medicaid/CHIP fee-for-service programs,
and carve this benefit out of the managed care program and contracts.
In general, CMS advises that states
review their managed care contracts and rates carefully to identify any
existing flexibilities to determine whether managed care contract or rate
amendments are needed.
1115 Demonstration Flexibilities
Can a state temporarily amend a
section 1115 demonstration in conjunction with the public health emergency?
Yes, a state may submit a request to
temporarily amend a demonstration in conjunction with the public health
emergency. Demonstration special terms and conditions, as well as
waivers and expenditure authorities, as applicable, may be authorized for a
limited time, as needed. CMS will prioritize these requests for
accelerated review.
If a state submits a demonstration
amendment, is full public notice required or does this situation meet the
criteria for an exemption?
A state would not need to complete
full public notice. To the extent a requirement for a public notice
process otherwise would apply with respect to the amendment, a
Secretary-declared public health emergency would meet the criteria for an
exemption described in the transparency regulations at 42 C.F.R. §431.416(g).
The state would be required to submit an application that CMS would post to
Medicaid.gov. Transparency regulations at 42 C.F.R. §431.416(g) state
that CMS may expedite approval of a demonstration if the following
conditions are met: i) the state acted in good faith, and in a diligent,
timely, and prudent manner; ii) the circumstances constitute an emergency
and could not have been reasonably foreseen; and iii) delay would undermine
or compromise the purpose of the demonstration and be contrary to the
interests of beneficiaries. CMS expects that COVID-19 related requests generally
would meet these criteria.
Can an amendment request be
retroactive?
CMS can provide 1115 demonstration
authority connected to a public health emergency retroactive to the
effective date of the public health emergency. Secretary Azar issued
a public health emergency regarding COVID-19 on January 31, 2020, which was
effective January 27, 2020. Therefore, CMS can provide authority for
such a request back to January 27, 2020, as needed.
Federal regulations at 42 C.F.R. §431.420(c) require a public
forum to allow comment on the progress of a state’s section 1115
demonstration within six months of demonstration approval. Some state
agencies have been directed to cancel in-person gatherings of constituency
groups to prevent the spread of COVID-19. Does an alternate plan to
host the forum as a webinar without an in-person audience, accepting
comments via webinar and in writing, fulfill the 1115 demonstration
requirements?
Yes, this alternate proposal would
meet the public forum requirements for the section 1115 demonstration in
the context of this declared public health emergency. States are
reminded of their obligation to comply with applicable civil rights and
other laws pertaining to accessibility, and should make these alternate
public hearings as accessible as possible in the current environment.
As another alternative, if a state would like to delay the post-award forum
until a later time, CMS would also offer an extension of the deadline to
meet this deliverable; a state interested in this option should contact the
CMS-designated contact person for the demonstration to discuss the
parameters of an extension.
Can alternative meeting formats
fulfill the public hearing requirements at 42 C.F.R. §431.408? For example,
could two public meetings available only through telephonic and/or Web
conference capabilities, without any in-person attendance, meet federal
requirements?
Yes, in the context of this declared public health emergency,
the state may be exempted from any of the normal public process requirements
outlined in 42 C.F.R. §431.408. Pursuant to 42 C.F.R. §431.416(g),
CMS has discretion to exempt the state from completing any aspect of the
public notice process, including exemption from conducting any public
notice, when the
State demonstrates to CMS the existence of unforeseen circumstances
resulting from a natural disaster, public health emergency, or other sudden
emergency that directly threatens human lives that warrant an exception to
the normal public notice process. To address the question
above, in lieu of in-person meetings, the state may hold meetings in any
alternative format (webinar, telephonic, written submission) that permits
submission of public input; including using two telephonic conferences in
lieu of in-person public hearings.
Can alternative meeting formats
fulfill the medical care advisory committee participation requirements at
42 C.F.R. §431.12?
For example, could committee meetings available only through telephonic
and/or Web conference capabilities, without any in-person attendance, meet
federal requirements?
Yes, in lieu of in-person meetings, a state has discretion to
hold meetings in any alternative format (webinar, telephonic, written
submission) that provides committee members with the opportunity to
participate in policy development and program administration. States
are reminded of their obligation to comply with applicable civil rights and
other laws pertaining to accessibility, and should make these alternate
meetings as accessible as possible in the current environment.
[1] An amendment to the existing contract that includes coverage
of these testing services to exclude them from the risk-contract would be
necessary.
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