By Jeffrey H. Brochin, J.D.
New rule necessary due to concerns that although section 1902(a)(32) of the Social Security Act provides for a number of exceptions to the direct payment requirement, it does not authorize the agency to create new exceptions.
Effective July 5, 2019, CMS will remove regulatory text allowing a state to make Medicaid payments to third parties on behalf of an individual provider. Under the final rule, the payments at issue were for benefits such as health insurance, skills training, and other benefits customary for employees. CMS concluded that the disputed provision was neither explicitly nor implicitly authorized by the Social Security Act, which identified the only permissible exceptions to the rule that “only a provider may receive Medicaid payments” (Final rule, 84 FR 19718, May 6, 2019).
40-year history of problematic rule. Soc. Sec. Act §1902(a)(32) was codified as 42 C.F.R. §447.10 in the “Payment for Services” final rule published September 29, 1978. The final rule incorporated several specific statutory exceptions to the general principle requiring that direct payment be made to the individual provider. The regulations implementing Soc. Sec. Act §1902(a)(32) generally tracked the plain statutory language and required direct payments absent a statutory exception.
However, in 2012, CMS proposed a new regulatory exception in the “State Plan Home and Community-Based Services, 5-Year Period for Waivers Provider Payment Reassignment, and Setting Requirements for Community First Choice” proposed rule published May 3, 2012, pertaining to a class of practitioners for which the Medicaid program was the primary source of service revenue. The regulatory exception was finalized in the provider payment reassignment requirements known as “Home and Community-Based Setting Requirements for Community First Choice and Home and Community-Based Services (HCBS) Waivers” published January 16, 2014. The rule authorized a state to make payments to third parties on behalf of certain individual providers for benefits such as health insurance, skills training, and other benefits customary for employees.
Recognizing the problem. More recently, CMS became concerned that 42 C.F.R. §447.10(g)(4) was neither explicitly nor implicitly authorized by the SSA. Section 1902(a)(32) of the SSA provides for a number of exceptions to the direct payment requirement that CMS believes constitutes an exclusive list of exceptions and does not authorize the agency to create new exceptions. The regulatory provision at §447.10(g)(4) granted permissions that Congress did not expressly authorize, and, in the opinion of CMS, foreclosed.
2018 proposed rule. Accordingly, CMS published the “Reassignment of Medicaid Provider Claims” proposed rule in July 12, 2018, proposing that the exception at 42 C.F.R. §447.10(g)(4) be removed, but that the other provisions in the regulations, including the exceptions at §§447.10(e), (f) and (g)(1) through (3) be left in place. CMS sought comments regarding how they might provide further clarification as to the types of payment arrangements that would be permissible assignments of Medicaid payments, such as arrangements where a state government withholds payments under a valid assignment. In response, CMS received over 7,000 comments, mostly from concerned citizens, parents of disabled individuals, health care providers, unions, state agencies, and advocacy groups. The comments ranged from general support to opposition to the proposed removal of 42 C.F.R. §447.10(g)(4) and included very specific questions or comments regarding the proposed change.
FMS not affected. Regarding the authorities under §§1915(c), 1915(i), 1915(j), 1915(k), and 1115 of the SSA, CMS explained that the final rule would not impact a state’s ability to perform Financial Management Services (FMS) or secure FMS through a vendor arrangement. FMS are services and functions that assist the Medicaid beneficiary or his/her family to: (1) Manage and direct the disbursement of funds contained in the participant directed budget; (2) facilitate the employment of staff by the family or participant, by performing as the participant’s agent such employer responsibilities as processing payroll and making tax payments to appropriate tax authorities; and (3) performing fiscal accounting and making expenditure reports to the Medicaid beneficiary or family and state authorities.
Arrangements under FMS will not be affected by the final rule because that model involves the FMS vendor receiving monies from the state to administer the participant-directed budget and make payment to providers on behalf of the beneficiary. The budget furnished to the FMS vendor is not a “payment under the plan for any care or service provided to an individual,” and therefore is not subject to the restrictions imposed by Soc. Sec. Act. §1902(a)(32) and 42 C.F.R. §447.10.
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