Opportunities to Comment on Impending Regulations
How the health reform law is implemented will largely depend on regulations and guidance issued by federal agencies. As these agencies begin to develop this information, the public is invited to comment on various aspects of health reform and help ensure that the law meets the needs of all consumers, including those with mental illnesses or disabilities. Below you will find information, as we find it, on opportunities to comment and related materials.
Medicaid 1915(i) State Option to Provide Home- and Community-based Services: This notice of proposed rulemaking defines and describes the option available to States under section 1915(i) of the Social Security Act, first authorized in 2005 and enhanced by the Affordable Care Act. This option permits States to offer home and community-based services under the Medicaid State plan without the use of a waiver. As a result, States will have the ability to provide a full array of home and community-based services to individuals who do not qualify for an institutional level of care but have significant services needs, such as individuals with serious mental illnesses. Importantly, the rule also contains other provisions related to home and community based services, including:
- A proposed definition of home and community based settings that will serve as a common definition for services offered through the Community First Choice option and the 1915(i) State plan option.
- A five-year approval or renewal period for demonstration and waivers programs through which a State serves individuals who are dually eligible for Medicare and Medicaid benefits.
Comments on this proposed rule are due no later than July 2, 2012.
Medicaid Eligibility Changes: The Department of Health and Human Services has released final rules on changes to Medicaid eligibility under the Affordable Care Act on March 23, 2012. These rules build upon and finalize proposed rules released in the summer of 2011. Parts of the rule were released as interim final, allowing for the solicitation of additional comments on a few outstanding issues. The sections available for comment include:
- Sec. 431.300(c)(1) and (d) and Sec. 431.305(b)(6): Safeguarding information on applicants and beneficiaries.
- Sec. 435.912: Timeliness and performance standards for Medicaid.
- Sec. 435.1200: Coordinated eligibility and enrollment among insurance affordability programs.
- Sec. 457.340(d): Timeliness standards for CHIP.
- Sec. 457.348: Coordinated eligibility and enrollment among CHIP and other insurance affordability programs.
- Sec. 457.350(a), (b), (c), (f), (i), (j), and (k): Coordinated eligibility and enrollment among CHIP and other insurance affordability programs.
Comments on these sections are due no later than May 7, 2012.
Establishment of Exchanges and Qualified Health Plans/Exchange Standards for Employers: The Department of Health and Human Services has released final rules establishing standards for state health insurance Exchanges and health plans sold through Exchanges. These rules build upon and finalized proposed rules released in the summer of 2012. Parts of the rule were released as interim final, allowing for the solicitation of additional comments on a few outstanding issues. The sections available for comment include:
- Sec. 155.220(a)(3): Related to the ability of a State to permit agents and brokers to assist qualified individuals in applying for advance payments of the premium tax credit and cost-sharing reductions for QHPs.
- Sec. 155.300(b): Related to Medicaid and CHIP regulations;
- Sec. 155.302: Related to options for conducting eligibility determinations;
- Sec. 155.305(g): Related to eligibility standards for cost-sharing reductions;
- Sec. 155.310(e): Related to timeliness standards for Exchange eligibility determinations;
- Sec. 155.315(g): Related to verification for applicants with special circumstances;
- Sec. 155.340(d): Related to timeliness standards for the transmission of information for the administration of advance payments of the premium tax credit and cost-sharing reductions; and
- Sec. 155.345(a) and Sec. 155.345(g): Related to agreements between agencies administering insurance affordability
Comments on these sections are due no later than May 11, 2012.
Recent Guidance, Bazelon Center Comments and Other Implementation Resources
Essential Health Benefits Package:
In a December bulletin, the U.S. Department of Health and Human Services (HHS) proposed to give states wide discretion to set their own essential health benefits (EHB) standard for health plans sold through the new exchanges. HHS has also released additional information and frequently asked questions regarding the definition of EHBs. The Department is expected to provide additional guidance on this provision in the future.
Bazelon Center and Allies Submit Joint Recommendations to HHS on Defining Essential Benefits Package:
The Affordable Care Act requires all health insurance plans offered through newly created state health insurance exchanges, in addition to all Medicaid benchmark plans, to offer at least a minimum package of essential health benefits that are outlined in the law. The essential benefit package must include mental health and substance abuse services at parity with other medical/surgical care, prevention services and rehabilitative services. However, the law did not define the exact services that plans must cover under each category; this task has been left to the Secretary of the U.S. Department of Health and Human Services (HHS). Therefore, the Bazelon Center has joined Mental Health America, the National Association of State Mental Health Program Directors, and the National Council for Community Behavioral Healthcare in submitting recommendations (August 18, 2011) to HHS on the types of mental health benefits that should be included in the essential benefits package under health reform.
Bazelon Center Comments Provided to Institute of Medicine on Determination of Essential Health Benefits:
The Affordable Care Act will allow individuals and businesses to purchase health insurance directly through exchanges—competitive marketplaces where buyers can compare coverage. These exchanges will offer a choice of qualified health plans (QHPs) that vary in coverage levels but meet certain standards. The Secretary of Health and Human Services (HHS) is tasked with defining the “essential health benefit” package that must be covered by all OHPs (and includes mental health and substance use disorder services). At the Secretary's request, the Institute of Medicine (IOM) will make recommendations on the criteria and methods for determining and updating the essential health benefits package. The IOM solicited comments from the public to inform the development of their recommendations. See the Bazelon Center's comments (December 2010).
Other Bazelon Center Comments on Affordable Care Act Regulations and Guidance:
Kaiser Timeline of Future Implementation of Health Care Reform
Relevant State Medicaid Director Letters and Additional Guidance:
The Department of Health and Human Services has provided states with additional guidance and clarification on the implementation of provisions in the Affordable Care Act by way of State Medicaid Director Letters and other guidance.
- 4/27/2012 Approval Process for Section 1115 Demonstrations: The Centers for Medicare & Medicaid Services (CMS) is issuing this letter to provide further guidance to State Medicaid and Children’s Health Insurance Program (CHIP) agencies on the implementation of the revised review and approval process for section 1115 demonstrations in accordance with the Affordable Care Act.
- 9/12/2011 State Balancing Incentive Payments Program: This letter provides guidance to States on the implementation of Section 10202 of the Affordable Care Act, which establishes the “State Balancing Incentive Payments Program." The Balancing Incentive Program provides a strong financial incentive to stimulate greater access to non-institutionally based long-term services and supports (LTSS).
- 7/8/2011 Coordination of Care for Dual Eligibles: This letter provides preliminary guidance on opportunities to align financing between Medicare and Medicaid to support improvements in the quality and cost of care for individuals enrolled in both programs (also referred to as “Medicare-Medicaid enrollees” or “dual eligibles”) pursuant to section 2602 of the Affordable Care Act.
- 2/25/11 Maintenance of Effort: This letter and the accompanying Questions and Answers (Q&As) are part of a series that provide guidance on the “maintenance of effort” (MOE) provisions in the Affordable Care Act.
- 1/11/11 Recent Developments in Medicaid and CHIP Policy Bulletin: This Informational Bulletin provides information about a range of issues related to Medicaid policy, continued efforts to effectively implement CHIPRA and the Affordable Care Act, and some new developments in work with the Medicare program, including information on the Federal Coordinated Health Care Office, and the Report to Congress on Preventive and Obesity-Related Services Available to Medicaid Enrollees.
- 11/19/10 Initial Guidance to States on Exchanges: This guidance document is the first in a series of documents that the Department of Health and Human Services (HHS) intends to publish over the next three years to provide information to States and the Territories seeking to establish a Health Insurance Exchange (Exchange) under Section 1311(b) of the Affordable Care Act.
- 11/17/10 Health Homes for Enrollees with Chronic Conditions: This letter provides preliminary guidance to States on the implementation of section 2703 of the Affordable Care Act, entitled “State Option to Provide Health Homes for Enrollees with Chronic Conditions.”
- 8/6/10 Improving Access to Home and Community-Based Services: This letter is intended to provide States with guidance on important changes to Section 1915(i) of the Social Security Act (the Act) made by the Affordable Care Act (ACA). These changes, which become effective October 1, 2010, include revised and new 1915(i) provisions for removal of barriers to offering home and community-based services (HCBS) through the Medicaid State plan, including services for people with serious mental illnesses. Please see the Bazelon Center's Medicaid analysis for more information on this important state option.
- 7/2/10 Family Planning Services Option and New Benefit Rules for Benchmark Plans: This letter provides guidance on section 2001(c) of the Affordable Care Act (ACA): Medicaid Coverage for the Lowest Income Populations,which makes certain benefit changes that were enacted as part of the ACA to benchmark plans. The Affordable Care Act expands Medicaid coverage to all individuals with incomes under 133% of the federal poverty level and states that adults newly eligible for Medicaid must receive benchmark or benchmark-equivalent coverage as established by the Deficit Reduction Act (DRA) of 2005. Many groups, including Bazelon, believed that benchmark benefits would necessarily be more limited than traditional Medicaid. It is now clear, however, based upon this guidance and through recent conversations with the Centers for Medicare and Medicaid Services that states may either offer the full array of Medicaid benefits typically provided under traditional Medicaid, or a more limited package of benefits under benchmark coverage (as was assumed) to newly eligible adults. Advocates should encourage their state to adopt a benchmark benefits package that ensures full Medicaid. Please see Bazelon’s Medicaid Analysis above for additional suggestions and details.
- 6/22/10 Extension of the Money Follows the Person Rebalancing Demonstration Program: This letter provides background about the MFP Demonstration Program, explains improvements made by the Affordable Care Act, details how the Affordable Care Act will impact current MFP grantees, and provides preliminary information for non-participating States that may be interested in pursuing new funding.
- 6/21/10 Political Subdivision: The purpose of this letter is to provide additional explanation on the interpretation and application of the provision known as the “political subdivision” requirement in the American Recovery and Reinvestment Act of 2009 that establishes a prerequisite for accessing increased Federal matching funds under the Recovery Act. This provision was clarified by the Patient Protection and Affordable Care Act.
- 5/20/10 Community Living Initiative: Issued just prior to anniversary of the historic Olmstead v. L.C. decision, this letter reminds states of their obligations to implement Olmstead, reports on recent progress made as a part of the Community Living Initiative and the Affordable Care Act, and provides resources and guidance to help states in their compliance efforts.
- 4/22/10 Medicaid Prescription Drug Rebates: This letter provides information on the section of the Affordable Care Act concerning the increased rebate percentages for covered outpatient drugs dispensed to Medicaid patients, the extension of prescription drug rebates to covered outpatient drugs dispensed to enrollees of Medicaid managed care organizations (MCOs) and the rebate offset associated with the increase in the rebate percentages.
- 4/9/10 New Option for Coverage of Individuals under Medicaid: This letter provides initial guidance on Section 2001 of the Affordable Care Act: Medicaid Coverage for the Lowest Income Populations, which establishes a new eligibility group and the option for States to begin providing medical assistance to individuals eligible under this new group as of April 1, 2010.
National Strategies and Frameworks:
The Affordable Care Act calls for the development of a number of national strategies, on issues ranging from preventive care to chronic conditions. Below you will find information on these strategies and plans as they emerge.
- The U.S. Department of Health and Human Services has issued its new Strategic Framework on Multiple Chronic Conditions ― an innovative private-public sector collaboration to coordinate responses to a growing challenge. The new strategic framework ― coordinated by HHS and involving input from agencies within the department and multiple private sector stakeholders ― expects to reduce the risks of complications and improve the overall health status of individuals with multiple chronic conditions by fostering change within the system; providing more information and better tools to help health professionals ― as well as patients ― learn how to better coordinate and manage care; and by facilitating research to improve oversight and care.
- The Affordable Care Act called on the Secretary of Health and Human Services to establish a National Strategy for Quality Improvement in Health Care. This National Strategy is a strategic plan for improving the delivery of health care services, achieving better patient outcomes, and improving the health of the U.S. population. The plan will be updated continually as the Affordable Care Act is implemented.