By Deborah Steinberg, Senior Health Policy Attorney, Legal Action Center
A few weeks ago, CCF explained how the Centers for Medicare & Medicaid Services (CMS) issued a new interim final rule with comment period (IFR) that went far beyond its authority to implement the new work reporting requirements. H.R. 1 – the budget reconciliation law approved last year that established work reporting requirements – created an exclusion for people with certain health conditions (“medically frail”), including people with substance use disorders.
However, CMS decided to add several additional hurdles: First, it is not enough just to have the disorder, but they must prove that the condition significantly impairs the individual’s ability to meet the work reporting requirement. Second, the definition excluded people who are in “stable recovery,” which CMS defined as five or more years. And third, use of self-attestation is strikingly limited, and documentation will be needed on a regular basis to keep someone in this exclusion.
Demonstrating that an individual has a condition that counts as medically frail – particularly for conditions for which rates of treatment access are low, like substance use disorders and mental health conditions – was already going to be a significant paperwork burden. The additional standards in CMS’s new rule are going to create a paperwork nightmare.
As the largest payer of substance use disorder treatment and mental health care, Medicaid plays a vital role in addressing our country’s ongoing opioid public health emergency and mental health crisis. Nearly 30% of adults enrolled in Medicaid through the expansion pathway have a substance use disorder or mental health condition. Medicaid covers almost half of nonelderly adults with an opioid use disorder, and ensures that these individuals have access to the full range of high quality treatment that they need including medications, services, and recovery supports. Yet, CMS imposed these stricter standards that will cut off access to affordable coverage and care for a significant segment of this population, jeopardizing our country’s ability to respond to the ongoing opioid public health emergency.
CMS did not adopt a reasonable interpretation of “medically frail” given the plain language in the law and Congress’ intent. . The plain language in H.R. 1 provided a list of populations (“specified excluded individuals”) who were explicitly exempt from the work reporting requirements. The statutory text has no language to suggest that the individuals who fit into the “medically frail” category be unable to work or participate in the other qualifying activities. More broadly, there is no indication that Congress intended to limit specified excluded individuals to those who are unable to meet the work reporting requirements except where explicitly specified (for example, veterans with a total disability rating), particularly when other populations are excluded for reasons unrelated to work (for example, American Indians).
Instead, Congress clearly intended to protect vulnerable populations for whom access to affordable health care should not be contingent upon one’s ability to work or meet the requirements, including those who are deemed medically frail. That is why these individuals are in the “specified excluded” category: their status must be determined prior to a consideration of whether they are meeting or able to meet the work reporting requirements. CMS claims that basing medical frailty “solely on diagnosis or condition would risk sweeping in individuals whose conditions do not significantly impair their functional capacity,” when that is exactly what Congress wrote into the law: individuals with conditions like substance use disorders and serious or complex medical conditions should be excluded. Full stop.
The IFR also limits substance use disorders based on length in recovery, despite, again, no language in the statute permitting such an interpretation. It’s important to note that recovery is unique for every individual, and it is not linear. CMS asserts that “the risk of SUD recurrence for an individual in stable recovery [5 or more years] is approximately the same as the general population.” Should one follow the citation provided, and the chain of citations to get to where this was first posited, it appears that this claim is drawn from a series of studies ranging from 1989-2007 that only focused on alcohol use disorder and defined recovery as abstinence-only. A number of the studies were limited to men, and several that did include women found notable gender differences in the results. This suggests that this five-year mark may not in fact be generalizable. Some people who are in recovery for more than five years may still be unable to meet the work reporting requirements, especially since outcomes vary based on substance, sub-population, and access to treatment. Though of course, it shouldn’t matter, because CMS should not be limiting this group to people who are unable to meet the work reporting requirements.
Moreover, CMS has created a contradiction here that will be very difficult for states and enrollees to implement. On the one hand, CMS clearly states in the preamble that this category applies to individuals regardless of whether they are in an active treatment program. This is the only logical interpretation, because there are no qualifiers in the statute and because there is a separate exclusion for people who are participating in a substance use disorder treatment program (though only in certain settings, which as we noted last year, will not cover many of them). However, CMS is also requiring claims and encounter data on an ongoing basis, or at least some documentation, to demonstrate that an individual is considered “medically frail.” By requiring claims data or ongoing access to qualified providers, the IFR contradicts the terms of the statute, including its own interpretation of the statute in the preamble. This is not only internally self-contradictory, but also clearly beyond what Congress intended.
Moreover, less than 1 in 5 individuals who need substance use disorder treatment receive it. The top three most common reasons for not receiving treatment among those who perceived an unmet need for treatment are: thinking they should have been able to handle their alcohol or drug use on their own (75.5%), not being ready to start treatment (65%), and not being ready to stop or cut back on using alcohol or drugs (59.5%). Other common reasons include concerns about stigma and what would happen if others found out they were in treatment, as well as issues related to access and finding treatment. Many of the individuals who report these barriers are therefore not going to be willing or able to find a provider who can document their medically frail status, in contrast to CMS’s unsubstantiated claim that a documentation requirement “will motivate individuals to access care.” CMS failed to account for this significant percentage of people with substance use disorders whom Congress intended to exclude from the work reporting requirements.
Although rates of treatment are higher in Medicaid than other payers, there are still far too many enrollees who lack access to evidence-based care but nonetheless have a substance use disorder or disabling mental health condition that should qualify them as a specified excluded individual. A part of this problem is the lack of active behavioral health providers who accept Medicaid, which, as the U.S. Department of Health & Human Services Office of Inspector General reports, “impedes enrollees’ access to care.” Thus, the very reason many Medicaid enrollees cannot access the treatment they need is often the same one that may prevent them from having claims and encounter data, let alone other documentation, that would demonstrate their medically frail status.
Not only are there significant provider shortages of those who can treat Medicaid enrollees with a substance use disorder or mental health condition, but it is not within their scope of practice or licensure/certification to determine whether someone’s condition significantly impairs their ability to meet the work reporting requirements. This is not what providers are trained to do, they do not know how to do it, and many would be uncomfortable making these types of determinations. Even if this were within a provider’s scope of practice, it would not be something that would be self-evident or readily apparent in claims or encounter data, as this is rarely relevant to treating these conditions. Furthermore, as MACPAC has reported, adoption of electronic health records is low among mental health and substance use disorder providers. And, if providers are unable to make this determination when they are the medical professionals actively interacting with these individuals, it stands to reason that Medicaid agency staff or algorithms would also be unable or unqualified to do so. That is, despite CMS’s assertion that identifying specified excluded individuals will be automated, and that there will be sufficient “ex parte” data to make these determinations, the reality is that it will not and often cannot be so.
The answer should have been to allow people to self-attest to having these conditions as part of their application and renewal, as the statute provides, rather than what CMS has done by requiring documentation starting in 2028. Existing Medicaid regulations expressly provide that state Medicaid agencies may accept self-attestation, unless otherwise required by law. 42 C.F.R. § 435.945(a). The statutory language authorizing the new work reporting requirements contains no such requirement. Contrast this with the citizenship and immigration status information referenced in that regulation, implementing an explicit requirement in the statute for “satisfactory documentary evidence of citizenship or nationality.” 42 U.S.C. § 1396b(x). Instead, the statute governing the work reporting requirements contains language in multiple places that mirrors the regulation authorizing states to accept self-attestation, and never requires documentation or documentary evidence. In this IFR, CMS fails to identify any reasonable statutory authority for requiring documentation for these individuals, let alone why they cannot self-attest this aspect of their eligibility on an ongoing basis as they are entitled to do for other requirements.
Overall, CMS’s approach not only goes beyond the scope of the law, but it is clearly unworkable for people with substance use disorders or mental health conditions, their providers, and states. It jeopardizes the progress this country has made in reducing overdose deaths, and will lead to eligible individuals losing their Medicaid coverage.