Coordinating Care From Out-of-State Providers for Medicaid-Eligible Children With Medically Complex Conditions, 3330-3334 [2020-00796]

Agencies

• Centers for Medicare & Medicaid Services
• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 85, Number 13 (Tuesday, January 21, 2020)]
[Proposed Rules]
[Pages 3330-3334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00796]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Chapter IV

[CMS-2324-NC]
RIN 0938-ZB57


Coordinating Care From Out-of-State Providers for Medicaid-
Eligible Children With Medically Complex Conditions

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Request for information.

-----------------------------------------------------------------------

SUMMARY: This document is a request for information (RFI) to seek 
public comments regarding the coordination of care from out-of-state 
providers for Medicaid-eligible children with medically complex 
conditions. We wish to identify best practices for using out-of-state 
providers to provide care to children with medically complex 
conditions; determine how care is coordinated for such children when 
that care is provided by out-of-state providers, including when care is 
provided in emergency and non-emergency situations; reduce barriers 
that prevent such children from receiving care from out-of-state 
providers in a timely fashion; and identify processes for screening and 
enrolling out-of-state providers in Medicaid, including efforts to 
streamline such processes for out-of-state providers or to reduce the 
burden of such processes on them. We intend to use the information 
received in response to this RFI to issue guidance to state Medicaid 
directors on the coordination of care from out-of-state providers for 
children with medically complex conditions.

DATES: Comments: To be assured consideration, comments must be received 
at one of the addresses provided below, no later than 5 p.m. on March 
23, 2020.

ADDRESSES: In commenting, refer to file code CMS-2324-NC. Because of 
staff and resource limitations, we cannot accept comments by facsimile 
(FAX) transmission.
    Comments, including mass comment submissions, must be submitted in 
one of the following three ways (please choose only one of the ways 
listed):
    1. Electronically. You may submit electronic comments on this RFI 
to https://www.regulations.gov. Follow the ``Submit a comment'' 
instructions.
    2. By regular mail. You may mail written comments to the following 
address ONLY: Centers for Medicare & Medicaid Services, Department of 
Health and Human Services, Attention: CMS-2324-NC, P.O. Box 8016, 
Baltimore, MD 21244-8010.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address ONLY: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: CMS-2324-NC, Mail 
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.

FOR FURTHER INFORMATION CONTACT: Nicole Gillette-Payne, 212-616-2465.

SUPPLEMENTARY INFORMATION: 
    Inspection of Public Comments: All comments received before the 
close of the comment period will be made available for viewing by the 
public, including any personally identifiable or confidential business 
information that is included in a comment. We will post all comments 
received before the close of the comment period on the following 
website as soon as possible after they have been received: https://www.regulations.gov. Follow the search instructions on that website to 
view public comments.

I. Background

    Medicaid health homes were originally authorized under section 2703 
of the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-
148, enacted March 23, 2010), as amended by the Health Care and 
Education Reconciliation Act of 2010 (Pub. L. 115-152, enacted March 
30, 2010) (the ACA), which added section 1945 to the Social Security 
Act (the Act). Section 1945 of the Act allows states to elect a 
Medicaid state plan option to provide a comprehensive system of care 
coordination for Medicaid beneficiaries with chronic conditions. The 
goal of the health homes authorized under section 1945 of the Act is to 
integrate and coordinate all primary, acute, behavioral health, and 
long-term services and supports to treat the whole person. States may 
not limit enrollment by age in the health homes authorized under 
section 1945 of the Act, but may target chronic conditions that have a 
higher prevalence in particular age groups.\1\
---------------------------------------------------------------------------

    \1\ See Health Homes FAQs, December 18, 2017, https://www.medicaid.gov/state-resource-center/medicaid-state-technical-assistance/health-home-information-resource-center/downloads/health-homes-faq-12-18-17.pdf.

---------------------------------------------------------------------------

[[Page 3331]]

    The Medicaid Services Investment and Accountability Act of 2019 
(MSIA) (Pub. L. 116-16, enacted April 18, 2019), added section 1945A to 
the Act, which authorizes a new optional Medicaid health home benefit. 
Under section 1945A of the Act, beginning October 1, 2022, states have 
the option to cover health home services for Medicaid-eligible children 
with medically complex conditions who choose to enroll in a health 
home. States will submit State Plan Amendments (SPAs) to exercise this 
option, which permits them to specifically target children with 
medically complex conditions as defined in section 1945A(i) of the Act. 
States will receive a 15 percent increase in the federal match for 
their expenditures on section 1945A health home services during the 
first 2 fiscal year quarters that the approved health home SPA is in 
effect, but under no circumstances may the federal matching percentage 
for these services exceed 90 percent. Among other required information, 
states must include in their section 1945A SPAs a methodology for 
tracking prompt and timely access to medically necessary care for 
children with medically complex conditions from out-of-state providers.
    To qualify for health home services under section 1945A of the Act, 
children with medically complex conditions must be under 21 years of 
age and eligible for Medicaid. Additionally, they must either: (1) Have 
at least one or more chronic conditions that cumulatively affect three 
or more organ systems and that severely reduce cognitive or physical 
functioning (such as the ability to eat, drink, or breathe 
independently) and that also require the use of medication, durable 
medical equipment, therapy, surgery, or other treatments; or (2) have 
at least one life-limiting illness or rare pediatric disease as defined 
in section 529(a)(3) of the Federal Food, Drug, and Cosmetic Act (21 
U.S.C. 360ff(a)(3)).
    Section 1945A(i)(2) of the Act defines a chronic condition as a 
serious, long-term physical, mental, or developmental disability or 
disease. Qualifying chronic conditions listed in the statute include 
cerebral palsy, cystic fibrosis, HIV/AIDS, blood diseases (such as 
anemia or sickle cell disease), muscular dystrophy, spina bifida, 
epilepsy, severe autism spectrum disorder, and serious emotional 
disturbance or serious mental health illness. The Secretary may 
establish higher levels as to the number or severity of chronic, life 
threatening illnesses, disabilities, rare diseases or mental health 
conditions for purposes of determining eligibility for health home 
services under section 1945A of the Act.
    Under section 1945A(i)(4) of the Act, health home services for 
children with medically complex conditions must include the following 
list of comprehensive and timely high-quality services:
     Comprehensive care management;
     Care coordination, health promotion, and providing access 
to the full range of pediatric specialty and subspecialty medical 
services, including services from out-of-state providers, as medically 
necessary;
     Comprehensive transitional care, including appropriate 
follow-up, from inpatient to other settings; \2\
---------------------------------------------------------------------------

    \2\ Many children with medically complex conditions have a 
disability under federal disability rights laws, including the 
Americans with Disabilities Act. Children covered by these laws have 
a right to receive services in the most integrated setting 
appropriate to their needs. See Olmstead v. L.C., 527 U.S. 581 
(1999).
---------------------------------------------------------------------------

     Patient and family support, including authorized 
representatives;
     Referrals to community and social support services, if 
relevant; and
     Use of health information technology (HIT) to link 
services, as feasible and appropriate.
    These services are very similar to the health home services 
described in section 1945 of the Act, with some variations to reflect 
the targeted population for section 1945A health homes.
    Health home services must be provided by a health home, which is a 
designated provider (including a provider that operates in coordination 
with a team of health care professionals) or a health team that is 
selected by a Medicaid-eligible child with medically complex 
conditions, or by his or her family. Subject to the provider 
qualification standards established by the Secretary as described in 
section 1945A(b) of the Act, states determine which providers or 
entities are qualified to serve as health homes. However, section 1945A 
of the Act does not limit the ability of a child (or a child's family) 
to select any qualified health home provider as the child's health 
home. Per section 1945A(i)(5) of the Act, designated providers may be:
     A physician (including a pediatrician or a pediatric 
specialty or subspecialty provider), children's hospital, clinical 
practice or clinical group practice, prepaid inpatient health plan 
(PIHP) or prepaid ambulatory health plan (PAHP) (as those terms are 
defined in 42 CFR 438.2);
     A rural clinic;
     A community health center;
     A community mental health center;
     A home health agency; or
     Any other entity or provider that is determined by the 
state and approved by the Secretary to be qualified to be a health home 
for children with medically complex conditions on the basis of 
documentation that the entity has the systems, expertise, and 
infrastructure in place to provide health home services.\3\
---------------------------------------------------------------------------

    \3\ For example, a managed care organization (MCO) as the term 
is defined in 42 CFR 438.2.
---------------------------------------------------------------------------

    Designated providers may include providers who are employed by, or 
affiliated with, a children's hospital.
    Per section 1945A(i)(6) of the Act, a team of health care 
professionals may include:
     Physicians and other professionals, such as pediatricians 
or pediatric specialty or subspecialty providers, nurse care 
coordinators, dietitians, nutritionists, social workers, behavioral 
health professionals, physical therapists, occupational therapists, 
speech pathologists, nurses, individuals with experience in medical 
supportive technologies, or any professionals determined to be 
appropriate by the state and approved by the Secretary;
     An entity or individual who is designated to coordinate 
such a team; and
     Community health workers, translators, and other 
individuals with culturally-appropriate expertise.
    A team of health care professionals may be freestanding, virtual, 
or based at a children's hospital, hospital, community health center, 
community mental health center, rural clinic, clinical practice or 
clinical group practice, academic health center, or any entity 
determined to be appropriate by the State and approved by the 
Secretary. At section 1945A(i)(7) of the Act, a health team is defined 
as having the meaning given such term for purposes of section 3502 of 
the ACA.
    Under section 1945A(b) of the Act, section 1945A health home 
providers must demonstrate to the state the ability to:
     Coordinate prompt care for children with medically complex 
conditions, including access to pediatric emergency services at all 
times;
     Develop an individualized comprehensive pediatric family-
centered care plan for children with medically complex conditions that 
accommodates patient preferences;
     Work in a culturally and linguistically appropriate manner 
with the family of a child with medically complex conditions to develop 
and incorporate into the child's care plan, in a manner consistent with 
the needs of the child and the choices of the child's

[[Page 3332]]

family, ongoing home care, community-based pediatric primary care, 
pediatric inpatient care, social support services, and local hospital 
pediatric emergency care;
     Coordinate access to subspecialized pediatric services and 
programs for children with medically complex conditions, including the 
most intensive diagnostic, treatment, and critical care levels as 
medically necessary;
     Coordinate access to palliative services if the state 
provides Medicaid coverage for palliative services;
     Coordinate care for children with medically complex 
conditions with out-of-state providers furnishing care to these 
children to the maximum extent practicable for the children's families 
and where medically necessary, in accordance with 42 CFR 431.52 and the 
guidance that CMS will provide on this topic under section 1945A(e)(1) 
of the Act; and
     Collect and report information described in section 
1945A(g)(1) of the Act, which includes provider identifying 
information, specific health care services to be provided to children 
with medically complex conditions, and information on applicable 
quality measures.

A. Medicaid Services and Out-of-State Providers

    Medicaid generally provides broad coverage to eligible children, 
both through required benefits packages for eligible children, and 
through the Early and Periodic Screening, Diagnostic, and Treatment 
(EPSDT) benefit. Through the EPSDT benefit, states must provide any 
service listed in section 1905(a) of the Act to eligible beneficiaries 
under age 21, when the service is determined to be necessary to correct 
or ameliorate an identified condition, and in any amount that is 
medically necessary, regardless of whether the service is covered in 
the state plan. In some cases, children with medically complex 
conditions may require specialized diagnostic or treatment services 
that are not available from providers in their state. Federal 
regulations at Sec.  431.52(b)(3) require that, if a state Medicaid 
agency, on the basis of medical advice, determines that needed medical 
services or necessary supplementary resources for a beneficiary 
resident in the state are ``more readily available'' in another state, 
the state must pay for services furnished in the other state to the 
same extent that it would pay for services furnished within its 
boundaries. Under Medicaid managed care, Sec.  438.206(b)(4) provides 
that if a managed care organization (MCO), PIHP, or PAHP (``managed 
care plan'') provider network is unable to provide necessary services 
covered under the contract to an enrollee, the managed care plan must 
adequately and timely cover the services out of network for the 
enrollee. Furthermore, Sec. Sec.  435.930(c) and 438.114(c), require, 
respectively, that state Medicaid agencies and Medicaid managed care 
plans cover needed emergency services as defined in regulations. In the 
case of an individual with an ``emergency medical condition,'' managed 
care plans must cover and pay for emergency services, and in some 
instances post-stabilization care services, ``regardless of whether the 
provider that furnishes the services has a contract'' with the managed 
care plan, whether in-state or out-of-state.
    Per section 1902(a)(27) of the Act and Sec.  431.107(b), providers 
or organizations furnishing services under the state plan must have a 
provider agreement. In the February 2, 2011 Federal Register, we 
published a final rule where we established Medicaid provider screening 
requirements at 42 CFR part 455, subpart E (76 FR 5862). In addition, 
section 5005(b)(1) of the 21st Century Cures Act (Pub. L. 114-255, 
enacted December 13, 2016) amended section 1902(a) of the Act to 
require that states require enrollment by all providers furnishing, 
ordering, prescribing, referring, or certifying eligibility for 
Medicaid services and collect identifying information from enrolled 
providers, not later than January 1, 2017. In the case of a state that 
under its state plan or waiver of the plan for medical assistance pays 
for medical assistance on a fee-for-service basis, the state shall 
require each provider furnishing items or services to, or ordering, 
prescribing, referring, or certifying eligibility for, services for 
individuals eligible to receive medical assistance under such plan to 
enroll with the state agency and provide to the state agency the 
provider's identifying information, including the name, specialty, date 
of birth, Social Security number, national provider identifier (if 
applicable), federal taxpayer identification number, and the state 
license or certification number of the provider (if applicable).\4\ 
Section 5005(b)(2) of the 21st Century Cures Act amended section 
1932(d) of the Act to include similar enrollment and information 
reporting requirements for providers participating in the network of a 
Medicaid managed care entity, effective no later than January 1, 2018. 
Only under very limited circumstances may a provider or organization 
bill and receive payment without being enrolled as a Medicaid provider 
in the reimbursing state. Specifically, a state may pay a claim to a 
furnishing provider that is not enrolled in the reimbursing state's 
Medicaid plan to the extent that the claim is otherwise payable and 
meets the following criteria:
---------------------------------------------------------------------------

    \4\ Section 1902(a)(78) of the Act.
---------------------------------------------------------------------------

     The item or service is furnished by an institutional 
provider, individual practitioner, or pharmacy at an out-of-state 
practice location- that is, located outside the geographical boundaries 
of the reimbursing state's Medicaid plan;
     The National Provider Identifier of the furnishing 
provider is represented on the claim;
     The furnishing provider is enrolled and in an ``approved'' 
status in Medicare or in another state's Medicaid plan;
     The claim represents services furnished, and
     The claim represents either:
    ++ A single instance of care furnished over a 180-day period; or
    ++ Multiple instances of care furnished to a single participant, 
over a 180-day period.\5\ The payment to the out-of-state provider is 
subject to the same federal matching rate as the state receives when it 
pays an in-state provider, which means that the state pays the same 
share in either case.
---------------------------------------------------------------------------

    \5\ The Medicaid Provider Enrollment Compendium (7/24/18), pg. 
42, https://www.medicaid.gov/affordable-care-act/downloads/program-integrity/mpec-7242018.pdf.
---------------------------------------------------------------------------

B. Guidance on Coordinating Care From Out-of-State Providers

    Under section 1945A(e) of the Act, the Secretary must issue 
guidance to state Medicaid directors by October 1, 2020 on:
     Best practices for using out-of-state providers to provide 
care to children with medically complex conditions;
     Coordinating care provided by out-of-state providers to 
children with medically complex conditions, including when provided in 
emergency and non-emergency situations;
     Reducing barriers that prevent children with medically 
complex conditions from receiving care from out-of-state providers in a 
timely fashion; and
     Processes for screening and enrolling out-of-state 
providers, including efforts to streamline these processes or reduce 
the burden of these processes on out-of-state providers. Under section 
1945A(g)(2)(B) of the Act, states with an approved section 1945A SPA 
must submit to the Secretary, and make publicly available on the 
appropriate state website, a report on

[[Page 3333]]

how the state is implementing the guidance issued under section 
1945A(e) of the Act, including through any best practices adopted by 
the state. The required report must be submitted no later than 90 days 
after the state's section 1945A SPA is approved.
    Section 1945A(e)(2) of the Act directs the Secretary to issue this 
request for information (RFI) as part of the process of developing the 
required guidance, to seek input from children with medically complex 
conditions and their families, states, providers (including children's 
hospitals, hospitals, pediatricians, and other providers), managed care 
plans, children's health groups, family and beneficiary advocates, and 
other stakeholders with respect to coordinating the care provided by 
out-of-state providers to children with medically complex conditions.

II. Solicitation of Comments

    This is an RFI only. Respondents are encouraged to provide complete 
but concise responses to the questions listed in the sections outlined 
below. Response to this RFI is completely voluntary. This RFI is issued 
solely for information and planning purposes; it does not constitute a 
Request for Proposal, for applications, for proposal abstracts, or for 
quotations. This RFI does not commit the Government to contract for any 
supplies or services or make a grant award. Further, we are not seeking 
proposals through this RFI and will not accept unsolicited proposals. 
Responders are advised that the United States Government will not pay 
for any information or administrative costs incurred in response to 
this RFI; all costs associated with responding to this RFI will be 
solely at the interested party's expense. Not responding to this RFI 
does not preclude participation in any future procurement, if 
conducted. It is the responsibility of the potential responders to 
monitor this RFI announcement for additional information pertaining to 
this request. Also, we note that we will not respond to questions from 
individual responders about the policy issues raised in this RFI. We 
may or may not choose to contact individual responders. Such 
communications would only serve to further clarify written responses. 
Contractor support personnel may be used to review RFI responses. 
Responses to this RFI are not offers and cannot be accepted by the 
Government to form a binding contract or issue a grant. Information 
obtained as a result of this RFI may be used by the Government for 
program planning on a non-attribution basis. Respondents should not 
include any information that might be considered proprietary or 
confidential. This RFI should not be construed as a commitment or 
authorization to incur cost for which reimbursement would be required 
or sought. All submissions become Government property and will not be 
returned. We may publicly post the comments received, or a summary 
thereof.

A. Public/Stakeholder Feedback

    We are soliciting general comments on the coordination of care 
provided by out-of-state providers including but not limited to primary 
care providers, pediatricians, hospitals, specialists, and other health 
care providers or entities who may provide care for Medicaid-eligible 
children with medically complex conditions. We are specifically seeking 
input on these topics as they relate to urban, rural, Tribal, and 
medically underserved populations, as barriers and successful 
strategies may vary by geography. We also seek input on these topics 
with respect to both Medicaid fee-for-service and Medicaid managed care 
arrangements. Therefore, in responding to these comments, please 
differentiate between Medicaid fee-for-service and Medicaid managed 
care arrangements, as appropriate.
     We are seeking public comment on any best practices for 
using out-of-state providers to provide care to children with medically 
complex conditions, including specific examples of what has and has not 
worked in the commenter's experience.
     We are seeking public comment about coordinating care from 
out-of-state providers for children with medically complex conditions, 
including when care is provided in emergency and non-emergency 
situations. Discussion of specific examples of what has and has not 
worked, in the commenter's experience, is especially welcome.
     We are seeking information about any state initiatives 
that have promoted and/or improved the coordination of services and 
supports provided by out-of-state providers to children with medically 
complex conditions.
     We are seeking public comment related to administrative, 
fiscal, and regulatory barriers that states, providers, beneficiaries, 
and their families experience that prevent children with medically 
complex conditions from receiving care, including community and social 
support services, from out-of-state providers in a timely fashion, as 
well as examples of successful approaches to reducing those barriers.
     We are seeking public comment related to barriers that 
prevent caregivers from accessing or navigating care from out-of-state 
providers in a timely fashion, as well as examples of successful 
approaches to reducing those barriers.
     We are seeking public comment related to individual 
financial barriers (for example, costs of travel, lodging, and work 
hours lost) that prevent children with medically complex conditions 
from receiving care from out-of-state providers in a timely fashion, as 
well as examples of successful approaches to reducing those barriers.
     We are seeking public comment on successful methods to 
inform caregivers of children with medically complex conditions about 
ways to access care from out-of-state providers.
     We are seeking public comment on any measures that have 
been, or could be employed by states, providers, health systems and 
hospitals to reduce barriers to coordinating care for children with 
medically complex conditions when receiving care from out-of-state 
providers.
     We are seeking public comment related to processes that 
states could employ for screening and enrolling out-of-state Medicaid 
providers, in both emergent and non-emergent situations, including 
efforts to streamline these processes or reduce the administrative and 
fiscal burden of these processes on out-of-state providers and states.
     We are seeking public comment on challenges with referrals 
to out-of-state providers for specialty services, including community 
and social supports, for children with medically complex conditions and 
the impact of these challenges on access to qualified providers.
     We are seeking public comment on best practices for 
developing appropriate and reasonable terms of contracts and payment 
rates for out-of-state providers, for both Medicaid fee-for-service and 
Medicaid managed care.

III. Collection of Information Requirements

    This document does not impose information collection requirements, 
that is, reporting, recordkeeping, or third-party disclosure 
requirements. However, section II. of this document does contain a 
general solicitation of comments in the form of a request for 
information. In accordance with the implementing regulations of the 
Paperwork Reduction Act of 1995 (PRA), specifically 5 CFR 1320.3(h)(4), 
facts or opinions submitted in response to general solicitations of 
comments from the public, published in the Federal Register or other 
publications, regardless of the form or format thereof,

[[Page 3334]]

provided that no person is required to supply specific information 
pertaining to the commenter, other than that necessary for self-
identification, as a condition of the agency's full consideration, are 
not generally considered information collections and therefore not 
subject to the PRA. Consequently, there is no need for review by the 
Office of Management and Budget under the authority of the PRA (44 
U.S.C. Chapter 35).

IV. Response to Comments

    Because of the large number of public comments we normally receive 
on Federal Register documents, we are not able to acknowledge or 
respond to them individually. We will consider all comments we receive 
by the date and time specified in the DATES section of this preamble. 
The comments provided in response to the RFI will assist CMS in 
developing guidance for state Medicaid directors on the coordination of 
care from out-of-state providers for children with medically complex 
conditions.

    Dated: November 4, 2019.
Seema Verma,
Administrator, Centers for Medicare & Medicaid Services.

    Dated: January 10, 2020.
Alex M. Azar II,
Secretary, Department of Health and Human Services.
[FR Doc. 2020-00796 Filed 1-16-20; 11:15 am]
BILLING CODE 4120-01-P