New Mexico Register /
Volume XXIX, Issue 18 / September 25, 2018
NOTICE
OF RULEMAKING
The Human Services Department
(the Department), through the Medical Assistance Division (MAD), is proposing
to amend the following New Mexico Administrative Code (NMAC) rules: 8.200.400 - General Recipient Rules-General
Medicaid Eligibility; 8.201.600 - Medicaid Extension-Benefit Determination;
8.215.600 - SSI Methodology-Benefit Description; 8.231.600 - Infants Of Mothers
Who Are Medicaid Eligible-Benefit Description; 8.242.600 - Qualified Disabled
Individuals Whose Income Exceeds QMB And SLIMB-Benefit Description; 8.243.400 -
Working Disabled Individuals-Recipient Policies; 8.243.600 - Working Disabled
Individuals-Benefit Description; 8.245.600 - Specified Low Income Medicare
Beneficiaries-Benefit Description; 8.249.600 - Refugee Medical
Assistance-Benefit Description; 8.250.600 - Qualified Individuals-Benefit
Description; 8.252.600 - Breast And Cervical Cancer-Benefit Description;
8.280.400 - PACE-Recipient Policies; 8.280.600 - PACE-Benefit Description;
8.281.600 - Institutional Care-Benefit Description; 8.290.400 - Home And
Community-Based Services Waiver-Recipient Policies; 8.290.600 - Home And
Community-Based Services Waiver-Benefit Description; 8.292.600 - Parent
Caretaker-Benefit Description; 8.293.600 - Pregnant Women-Benefit Description;
8.294.600 - Pregnancy-Related Services-Benefit Description; 8.295.600 -
Children Under 19-Benefit Description; 8.296.400 - Other Adults-Recipient
Requirements; 8.296.600 - Other Adults-Benefit Description; 8.297.400 - Loss Of
Parent Caretaker Medicaid Due To Spousal Support-Recipient Requirements; 8.297.600 - Loss Of Parent Caretaker Medicaid
Due To Spousal Support-Benefit Description; 8.298.400 - Loss Of Parent Caretaker
Medicaid Due To Earnings From Employment-Recipient Requirements; 8.298.600 -
Loss Of Parent Caretaker Medicaid Due To Earnings From Employment-Benefit
Description; 8.299.400 - Family Planning Services-Recipient Requirements;
8.299.600 - Family Planning Services-Benefit Description; 8.302.2 - Medicaid
General Provider Policies-Billing for Medicaid Services; and 8.308.14 - Managed
Care Programs-Co-Payments.
Section 9-8-6 NMSA 1978, authorizes the Department Secretary to promulgate
rules and regulations that may be necessary to carry out the duties of the
Department and its divisions.
Notice
Date: September 25, 2018
Hearing
Date: October 24, 2018
Adoption
Date: Proposed as January 1, 2019
Technical Citations: Centennial
Care 2.0 1115 Waiver, Federal Register/Vol. 81, No. 230, 42 CFR 435.119(b)(2).
The Department is proposing to
revise these rules to align with the Department’s Centennial Care 1115
Demonstration Waiver renewal effective January 1, 2019, or as otherwise
approved by the Centers for Medicare and Medicaid Services (CMS).
As
part of the rule promulgation, the following NMAC rules are being repealed and
replaced to comply with formatting requirements: 8.201.600, 8.215.600,
8.242.600, 8.243.400, 8.243.600, 8.245.600, 8.249.600, 8.250.600, 8.280.400,
and 8.280.600 NMAC.
A. Proposed Revisions to Retroactive Medicaid
Policy
8.200.400
NMAC
Section
14
The Department proposes language
describing the policy for retroactive Medicaid in one location. Policies for specific categories of
eligibility will reference Section 14 regarding retroactive Medicaid. The Department proposes to revise the policy
for retroactive Medicaid to limit Centennial Care managed care members to one
month of retroactive Medicaid prior to the application month. This is a change from the three months of
retroactive Medicaid allowed under current rule.
Under the proposed rule, the
following Centennial Care managed care members are limited to one month of
retroactive Medicaid: Other Adults, Parent/Caretaker, Supplemental Security
Income (SSI), SSI extensions, Working Disabled Individuals (WDI), and Breast
and Cervical Cancer (BCC). Medicaid fee-for-service (FFS) individuals in these
categories who are not enrolled in managed care during the month of application
are allowed up to three months of retroactive Medicaid prior to the application
month.
Beginning July 1, 2019,
individuals covered under the Other Adults category who have household income
above 100% of the federal poverty level (FPL) will have a premium
requirement. The proposed rule explains
that individuals covered under the Other Adults category who have a premium
requirement will not be eligible for retroactive Medicaid. Premium requirements
cited in this register will be addressed separately in a different proposed register.
The following categories of
Medicaid are allowed up to three months of retroactive Medicaid regardless of
Centennial Care managed care enrollment:
Children under Age 19 (including Newborn and the Children’s Health
Insurance Program (CHIP)), Pregnant Women, Pregnancy-Related Services, Family
Planning, Specified Low-Income Medicare Beneficiary (SLIMB), Medicare Savings
Program Qualifying Individuals (QI1), Qualified Disabled Individuals, Refugee,
Children, Youth and Families Department (CYFD) Medicaid categories, and
Institutional Care Medicaid, excluding the Program of All-Inclusive Care for
the Elderly (PACE).
The following categories will not
be eligible for retroactive Medicaid, in accordance with current policy: Emergency Medical Services for Aliens (EMSA),
Home and Community-Based Services Waivers, PACE, Qualified Medicare Beneficiary
(QMB), and Transitional Medical Assistance (TMA). EMSA will continue to provide
coverage for services that may have been provided prior to the application
month, but is not considered retroactive Medicaid.
For newborns, the retroactive
Medicaid policy that was at 8.231.600.12 NMAC remains the same but has been
moved to 8.200.410.14 NMAC.
8.201.600
NMAC
Section
13
The Department proposes to amend
the SSI extension categories of Medicaid to delete the three-month retroactive
language and refer to 8.200.410.14 NMAC.
8.215.600
NMAC
Section
10
The Department proposes to amend
the SSI categories of Medicaid to delete the three-month retroactive language
and refer to 8.200.410.14 NMAC.
8.231.600
NMAC
Section
12
The Department proposes to amend
the newborn category section to refer to 8.200.410.14 NMAC.
8.242.600
NMAC
Section
13
The Department proposes to amend
the Qualified Disabled Working Individuals category to delete the three-month
retroactive language and refer to 8.200.410.14 NMAC.
8.243.600
NMAC
Section
13
The Department proposes to amend
the WDI category to delete the three-month retroactive language and refer to
8.200.410.14 NMAC.
8.245.600
NMAC
Section
13
The Department proposes to amend
the SLIMB category to delete the three-month retroactive language and refer to
8.200.410.14 NMAC.
8.249.600
NMAC
Section
13
The Department proposes to amend
the Refugee category to delete the three-month retroactive language and refer
to 8.200.410.14 NMAC.
8.250.600
NMAC
Section
13
The Department proposes to amend
the QI1 category to delete the three-month retroactive language and refer to
8.200.410.14 NMAC.
8.252.600
NMAC
Section
13
The Department proposes to amend
the BCC category to delete the three-month retroactive language and refer to
8.200.410.14 NMAC.
8.292.600
NMAC
Section
10
The Department proposes to amend
the Parent Caretaker to delete the three-month retroactive language and refer
to 8.200.410.14 NMAC.
8.293.600
NMAC
Section
10
The Department proposes to amend
the Pregnant Women category to remove the retroactive language and refer to
8.200.410.14 NMAC.
8.294.600
NMAC
Section
10
The Department proposes to amend
the Pregnancy-Related Services category to remove the retroactive language and
refer to 8.200.410.14 NMAC.
8.295.600
NMAC
Section
10
The Department proposes to amend
the Children Under Age 19 to remove the retroactive
language and refer to 8.200.410.14 NMAC.
8.296.600
NMAC
Section
10
The Department proposes to amend
the Other Adults category to delete the three-month retroactive language and
refer to 8.200.410.14 NMAC.
8.299.600
NMAC
Section
10
The Department proposes to amend
the Family Planning category to delete the three-month retroactive language and
refer to 8.200.410.14 NMAC.
B.
Proposed Revisions to Medicaid Family Planning Policy
8.299.400
NMAC
Section
9
The Department proposes to amend
rules for the Medicaid Family Planning category to state that an individual
must be under the age of 51 and not have other health insurance to be
eligible. Individuals who are under the
age of 65 who have only Medicare and no other health insurance are also
eligible for Medicaid Family Planning.
8.299.600
NMAC
Section
11
The Department proposes to amend
rules for the Medicaid Family Planning category to remove the continuous
eligibility language and refer to change reporting policy. The Code of Federal
Regulations (CFR) and Medicaid State Plan do not permit continuous eligibility
for Medicaid Family Planning, so this change is being proposed to comply with
federal regulations.
C.
Proposed Ongoing Nursing Facility Level of Care (NF LOC) for Certain Community
Benefit Participants in Centennial Care
Individuals covered under the
Centennial Care managed care program may receive the Community Benefit when
they meet NF LOC. Community Benefit
requirements are located in program policy at 8.308.12 NMAC. Through the Centennial Care 1115
Demonstration Waiver renewal effective January 1, 2019, an ongoing NF LOC is
allowed for managed care Community Benefit participants who meet certain
criteria. The Department proposes to
update 8.290.600 NMAC to allow for an ongoing NF LOC for these individuals.
NF LOC determinations are made by
the utilization review contractor or a member’s selected or assigned managed
care organization (MCO), as applicable to the Centennial Care Community Benefit
program. LOC reviews are required to be
completed at least annually except for certain Community Benefit members whose
chronic condition is not expected to improve.
These individuals may be eligible for an ongoing NF LOC. To qualify for an ongoing NF LOC, the
Community Benefit member must have met a NF LOC for the previous three
years. The ongoing NF LOC status must be
reviewed and approved annually by the MCO’s medical director and must be
supported in documentation by the member’s physician. The complete criteria for an ongoing NF LOC
can be found in the New Mexico Medicaid NF LOC criteria and instructions
document.
Meeting NF LOC is a requirement
for Institutional Care (IC) and some Home and Community-Based Services (HCBS)
categories. IC Medicaid clients are not eligible for an ongoing NF LOC because
these individuals are not eligible for the Community Benefit. PACE clients are
not eligible for an ongoing NF LOC because their services are provided under
fee-for-service and not managed care, so the Community Benefit is not available
to these individuals.
8.290.600
NMAC
Section
12
The Department proposes to amend
language for the HCBS waiver categories to add language that LOC reviews are
required at least annually, except for certain Community Benefit members whose
chronic conditions are not expected to improve.
These individuals may be eligible for an ongoing NF LOC. Outdated language was deleted and additional
language was inserted to clarify that LOC determinations are made by the
utilization review contractor or a member’s selected or assigned MCO.
D.
Proposed Elimination of Existing Co-Payments for CHIP and WDI
As part of the Centennial Care
1115 Demonstration Waiver, the Department proposes to sunset existing
co-payments specific to CHIP and WDI clients.
8.243.400
NMAC
Section
18
The Department proposes to
eliminate language referencing specific co-payments for WDI individuals
effective January 1, 2019.
8.243.600
NMAC
Section
12
The Department proposes to
eliminate references to co-payments in this Section.
8.295.600
NMAC
Section
9
The Department proposes to
eliminate language referencing specific co-payments for CHIP individuals
effective January 1, 2019. Language was
also updated to clarify that eligibility extends through age 18.
E.
Proposed Revisions to Other Adults Category
8.296.400
NMAC
Section
9
The Department proposed
additional language to exclude individuals who are pregnant per 42 CFR
435.119(b)(2).
New language was added to explain that individuals with household income
above 100% FPL will be subject to a premium and are enrolled into the Other
Adults category prospectively starting July 1, 2019. Native Americans are exempt from premium
requirements. Premium requirements cited
in this register will be addressed separately in a different proposed register.
F. Other Proposed Revisions to Medicaid
Eligibility Rules
8.200.400.10
NMAC
Section
10
The Department proposes to remove
outdated language regarding waiver programs.
The Emergency Medical Services for Aliens (EMSA) section was updated to
replace the outdated term “alien” with “non-citizen” and to remove the
statement that EMSA individuals do not receive the full Medicaid benefit
package, since the service limitation is already cited in the next sentence in
the rules.
8.290.400
NMAC
Section
7
The Department proposes to add
definitions for Comprehensive Care Plan (CCP), Primary Freedom of Choice
(PFOC), and Medically Fragile; and to update the definition of Waiver. Acronyms for the Disability Determination
Unit (DDU) and HCBS were also added.
Section
9
The Department proposes to add
language to clarify that the LOC requirements for Medically Fragile and
Developmentally Disabled categories are an Intermediate Care Facility for
Individuals with Intellectual Disabilities (ICF/IID) LOC. Language was added regarding the Community
Benefit for elderly, blind, and disabled Medicaid categories who meet NF LOC.
Section
10
Outdated language was deleted
regarding the Coordination of Long-Term Services (CoLTS)
waiver, which has not existed for several years. Language was added to clarify
that a disability or blindness determination can be determined by the Social
Security Administration (SSA). Section
10 was further amended to expand who is characterized as a Medically Fragile
individual.
Language was also amended to
clarify that the AIDS and AIDS-related condition waiver ceased covering new
individuals effective January 1, 2014, since the waiver was sunset and not
renewed. Individuals already on the AIDS
and AIDS-related condition waiver are grandfathered in and remain covered as
long as eligibility requirements are met.
Language was added to clarify that the Brain Injury (BI) category also
stopped covering new individuals effective January 1, 2014. Those already on the BI waiver were
grandfathered in and remain covered as long as eligibility requirements are
met.
Section
11
The Department proposes to delete
language requiring the Individual Service Plan (ISP) to be in effect for 30
days for an application to be approved.
New proposed language regarding approval of waiver applications is
contained at 8.290.600 NMAC and included in this register.
Proposed language was also added
regarding the requirement to meet all non-financial eligibility criteria, which
includes any mandatory income or resources deemed to a minor child. This Section was also amended with respect to
enumeration to reference 8.200.410.10 NMAC.
The reference to citizenship was updated to be more precise. Outdated
acronyms were updated.
This Section was also amended to
increase the number of consecutive days in which a waiver recipient can be out
of waiver services before eligibility is closed. The increase from 60 consecutive days to 90
consecutive days will allow for equity among all waiver recipients,
specifically for recipients receiving services under New Mexico’s 1115
Centennial Care Medicaid Demonstration Waiver.
Section
12
The Department proposes to update
acronyms that are outdated. Language is
also proposed to clarify that LOC reviews are also completed by the MCO.
8.290.600
NMAC
Section
10
The Department amended this
Section to add acronyms for ISD and the DDU.
Section
11
The Department proposes to delete
outdated language requiring the ISP to be in effect 30 days for an application
to be approved. New language was also
added to clarify when Medicaid and Waiver services eligibility begins.
Section
13
The Department proposes to add
language to clarify that since eligibility for waiver programs is prospective,
retroactive coverage is not available.
Section
14
This section was amended to
correct a typo. Language is also
proposed in this Section to allow for 90 consecutive days as opposed to the
current 60 days for non-provision of waiver services before a waiver case is
closed.
8.280.400
NMAC
Section
11
The Department proposes to add a
new sentence to clarify that interviews are required for PACE individuals at
initial application in accordance with Institutional Care rules found at
8.281.400 NMAC. Outdated language was
also updated.
Section
13
This section was updated to
delete outdated language and add the applicable change reporting reference.
8.280.600
NMAC
Section
10
This section was updated to
remove outdated language and reference the HSD 100 application.
Section
12
This section was amended to
delete outdated language and clarify that LOC determinations
for PACE are made by the utilization review contractor.
Section
14
This section was amended to add
that an exception to closure of PACE for services not being provided can be
prior authorized by MAD. Outdated language was updated.
8.281.600
NMAC
Section
10
This section was updated to
remove outdated language and reference the HSD 100 application.
Section
12
This section was amended to
delete outdated language and clarify that LOC determinations are made by the
utilization review contractor or a member’s selected or assigned MCO.
8.293.600.10
and 8.294.600.10 NMAC
Section
10
The Department proposes
amendments in both the Pregnant Women and Pregnancy-Related services categories
to add language from 42 CFR 435.4 that allows for a 60-day postpartum period of
Medicaid coverage. Current policy allows
for a postpartum coverage period of two months following the birth month. This change is being made to comply with the
CFR language.
8.297.400
NMAC
Section
9
The Department proposes to amend
language regarding Transitional Medical Assistance (TMA) due to Loss of Parent
Caretaker Medicaid due to Spousal Support.
TMA is the full Medicaid coverage of last resort. A parent or caretaker is evaluated for other
full Medicaid coverage, including Other Adults Medicaid, before being placed on
the TMA category of eligibility per Federal Register Vol. 81, No. 230. A parent or caretaker losing full Medicaid
coverage during any month(s) of his or her four-month TMA period is
automatically placed on the TMA category. The Medicaid eligibility certification
period of dependent children living in the home is extended to at least match
the TMA period of parent(s) and guardian(s).
This section was further amended to state that new TMA periods beginning
on or after July 1, 2019, are subject to a premium for eligibility months
during which an individual is on the TMA category 027. Native Americans are exempt from the premium
requirement. Premium requirements cited in this register
will be addressed separately in a different proposed register.
8.297.600
NMAC
Section
11
The Department proposes to amend
language regarding TMA due to Loss of Parent Caretaker Medicaid due to Spousal
Support. This section was amended to
delete language stating that a new application must be submitted after the
four-month TMA period expires. A
redetermination of eligibility is conducted in accordance with 8.291.410.19
NMAC, which allows for an administrative renewal, pre-populated renewal form,
and a 90-day reconsideration period.
8.298.400
NMAC
Section
9
The Department proposes to amend
language regarding TMA due to Loss of Parent Caretaker Medicaid due to Earnings
from Employment. TMA is the full
Medicaid coverage of last resort. A parent or caretaker is evaluated for other
full Medicaid coverage, including Other Adults Medicaid, before being placed on
the TMA category of eligibility per Federal Register Vol. 81, No. 230. A parent or caretaker losing full Medicaid
coverage during any month(s) of his or her 12-month TMA period is automatically
placed on the TMA category. The Medicaid
eligibility certification period of dependent children living in the home is
extended to at least match the TMA period of parent(s) and guardian(s). This section was further amended to state
that new TMA periods beginning on or after July 1, 2019 are subject to a
premium for eligibility months an individual is on the TMA category 028. Native Americans are exempt from the premium
requirement. Premium requirements cited
in this register will be addressed separately in a different proposed register.
8.298.600
NMAC
Section
11
The Department proposes to amend
language regarding TMA due to Loss of Parent Caretaker Medicaid due to Earnings
from Employment. This section was
amended to delete language stating that a new application must be submitted after
the 12-month TMA period expires. A
redetermination of eligibility is conducted in accordance with 8.291.410.19
NMAC, which allows for an administrative renewal, pre-populated renewal form,
and a 90-day reconsideration period.
8.302.2
NMAC
Section
10
The Department proposes to remove
detailed language in this section regarding co-payment requirements. The Department clarifies that co-payment
requirements are required under the Medicaid managed care program only, and
proposes removing details from this section and instead citing to the managed
care section of rule at 8.308.14 NMAC.
The Department also proposes to
sunset existing co-payments for the CHIP and WDI programs effective January 1,
2019. Language regarding CHIP and WDI co-payments has been removed.
8.308.14
NMAC
New wording in the proposed rule
at 8.308.14 NMAC specifies new co-payment requirements as part of the 1115
Demonstration Waiver renewal for Centennial Care. The proposed effective date of new co-payment
requirements is March 1, 2019, contingent upon approval by CMS. This section of the rule specifies the amount
of each co-payment; to whom the co-payment applies; the categories of
eligibility and services that are exempt from co-payments; the responsibilities
of Medicaid providers for charging, collecting and reporting co-payments; the
responsibilities of contracted MCOs for tracking co-payments; the rights and
responsibilities of MCO members; and other specific information regarding the
application of co-payments.
Section
9
The Department proposes new
co-payment amounts for non-emergency care furnished in the hospital Emergency
Department (ED) and non-preferred prescription drugs. Both co-payments amounts
are proposed to be set at $8.
The proposed rule defines the
co-payment types and describes the conditions under which each type of
co-payment may be charged to a member.
This section further describes the members who are exempt from
co-payments, including: Native American
members who are active or previous users of the Indian Health Service (IHS),
tribal 638 programs, or urban Indian health programs, and who are coded as
Native American in the Department’s eligibility and enrollment system; members
who are enrolled in the 1915(c) Developmentally Disabled (DD) waiver program;
members who are enrolled in an Institutional Care (IC) category of eligibility;
members with verified household income of zero percent of the federal poverty
level (FPL); members for whom the
Department does not have income information because of a pass-through
eligibility determination made by another agency; and members who are receiving
hospice care.
The proposed rule further defines
requirements of the MCOs regarding co-payments, including the requirement to
track the accumulation of co-payments toward an aggregate limit of five percent
of the member’s household income, and to notify member households of both their
aggregate maximum amount and their co-payment accumulations on a quarterly
basis.
The proposed rule also sets forth
the responsibilities of MCO contracted providers in applying and administering
co-payments; and the rights and responsibilities of MCO members who are charged
co-payments.
This
register and the proposed rules are available on the HSD website at: http://www.hsd.state.nm.us/2017-comment-period-open.aspx and http://www.hsd.state.nm.us/LookingForInformation/registers.aspx. If
you do not have internet access, a copy of the proposed register and rules may
be requested by contacting MAD at (505) 827-6252.
The Department proposes to
implement these rules effective January 1, 2019, or as otherwise approved by
CMS. A public hearing to receive
testimony on these proposed rules will be held in the Rio Grande Conference
room, Toney Anaya Building, 2550 Cerrillos Road,
Santa Fe, New Mexico on October 24, 2018 from 9 a.m. to 12 p.m., Mountain
Daylight Time (MDT).
Interested parties may submit written
comments directly to: Human Services
Department, Office of the Secretary, ATT: Medical Assistance Division Public
Comments, P.O. Box 2348, Santa Fe, New Mexico 87504-2348.
Recorded
comments may be left at (505) 827-1337. Interested persons may also address comments
via electronic mail to: madrules@state.nm.us. Written mail, electronic mail and recorded
comments must be received no later than 5 p.m. MDT on October 25, 2018. Written and recorded comments will be given the
same consideration as oral testimony made at the public hearing. All written comments received will be posted
as they are received on the HSD website at http://www.hsd.state.nm.us/2017-comment-period-open.aspx along with the applicable register and
rules. The public posting will include
the name and any contact information provided by the commenter.
If you are a person with a disability
and you require this information in an alternative format or require a special
accommodation to participate in the public hearing, please contact MAD in Santa
Fe at 505-827-6252. The Department
requests at least ten (10) days advance notice to provide requested alternative
formats and special accommodations.
Copies of all comments will be made
available by the MAD upon request by providing copies directly to a requestor
or by making them available on the MAD website or at a location within the
county of the requestor.