CMS-2390-P requires comments from parents, professionals and advocates

In response to my 6/25/2015 appeal for comments to CMS-2390-P (especially the section that explains how the parents of disabled children can be held financially responsible for the repayment of the cost of treatment delivered to their disabled child if they lose the final appeal of a Managed Care Organization’s denial of funding), I received the following e-mail message from an advocate.


The federal regulations have long allowed states to recoup the cost of services provided pending appeal if the family loses the appeal.  See 42 CFR 431.230.  Thankfully, Pennsylvania has never, to my knowledge, taken advantage of this provision.  The proposed regulations and commentary say that if states choose to take advantage of this long-standing provision, they should say so in the MCO contracts and be consistent between FFS and managed care. 

The proposed regulations you refer to are very lengthy (with the commentary, several hundred pages), and cover many, many, important topics.  If [our organization] submits comments on them and urges others to comment, I will let you know.

My reply

Thanks for the clarification but the CMS requested comments on 438.420 (which affirms the appropriateness of making the recipients of services financially liable if they lose the final appeal).  That’s wrong, no matter how long it’s been “on the books.”  CMS could fix 431.230 if they felt compelled to, and that’s why the comment process is so important.

Slavery was “on the books” for 87 years before it was challenged and finally repealed.  Some people still think that was a mistake.

It is wrong to hold the parents of a child who is a Medicaid recipient financially liable for the cost of the treatment services provided to their child while an appropriate, conscientious appeal of an adverse funding decision is underway.  Perhaps that’s why Pennsylvania has never done it.  They know it’s wrong.  I know it’s wrong.  The comment period is the place to express outrage over it, no matter how long it’s been “on the books.”  Evil doesn’t improve, or stay the same, with age – it gets more dangerous as time passes because it can spread.

This comment period is the time and place to put an end to the evil threat of making parents of Medicaid recipients financially liable while they are fighting for the lives of their children.  It should have been stopped, no matter which section(s) it appeared in, many years ago.  Don’t you agree?


Here is a link to the CMS-2390-P proposed rule changes.  You can see the 8 comments I’ve uploaded there so far, and the 23 comments received thus far (more than 600 comments were received the last time CMS proposed major changes to the Medicaid Act).  The present set of changes is lengthy, but it is at least as important as the set of changes that received over 400 comments by this point in the two-month comment period (which expires on July 27th).  This set of changes is flying way, WAY under the radar:!docketBrowser;rpp=25;po=0;D=CMS-2015-0068


URGENT! Comments needed on proposed Medicaid policy changes that will hurt Millions of people

The rate of comment submissions regarding proposed Medicaid changes (2390-P) has increased 75% but there are still just 23 comments posted. By this point in the comment period for a previous CMS proposed rule change, there had been over 500.  This new set of rule changes is flying way, WAY below the radar, unfortunately, and millions of people are going to suffer because of it. Millions.

One esteemed Pennsylvania advocacy organization representative lamented to me “Steve, the thing is just too big — it’s over 200 pages in the Federal Register”). How could 200 pages be considered “too heavy to lift” by an advocacy organization? Here’s just one example of what is at stake; this is an excellent example of the kinds of comments that will expose awful changes that will go into effect Nationwide unless they are reformed – via the Comment process:

“This is absolutely unacceptable. I can’t believe this revision calls for “making recipients pay if they lose an appeal”. You are talking about poor people, most of whom are disabled and you want THEM to pay if they lose an appeal? This is how the rich get richer and the poor get poorer. I almost thought it was a joke when I heard this. Is this an attempt to stop all grievance filings? There is a point where the people need to realize that the government is no longer working for the people. This “revision” will hinder access to quality medical care for the disabled. How low can we go here? I am absolutely stunned by this and I hope that our system is not this far gone. We are a wealthy nation, how does it look when corporate subsidies are given out like candy and the disabled are left to beg for medical care. Just remember how this great nation was founded. The American people are growing weary of your antics.” (thanks, Sarah)

Here is a link to the CMS-2390-P proposed rule changes.  You can see the 8 comments I’ve uploaded there so far:!docketBrowser;rpp=25;po=0;D=CMS-2015-0068

CMS affirms that parents can be held financially liable during appeals of MCO funding denials

The Centers for Medicare and Medicaid Services issued a Proposed Rule (#2390) a few days ago.  The comment period ends on July 27th.  You can read the 8 comments I’ve sent them so far by clicking here:!docketBrowser;rpp=25;po=0;D=CMS-2015-0068

When you read my comments, you will see that there are some very good things planned in Washington for the States to comply with, and some absolutely dreadful things that the CMS wants to do to Medicaid recipients.  Please read these comments and distribute them to others if you think it would be helpful.

Of particular importance is the plan to make Medicaid recipients “assume financial risk” for filing appeals of “adverse decisions.”  In other words, if a parent appeals an awful decision by a MCO reviewer, and the Administrative Law Judge rules against the parent in a Fair Hearing, the parent would then be obligated to repay the funds spent on delivering treatment to their child during the grievance period.  Seriously.  What parent would consider filing a grievance if they were told that they’d have to pay back the money billed by their service provider for treatment during the appeal process?  Nobody in their right mind, right?  Especially with the incredibly random draw that happens with Administrative Law Judges and how they misread, misinterpret or ignore the law they’re supposed to be upholding.  I have three recent Fair Hearing transcripts that document how perfectly documented evaluations, prescriptions and treatment plans are dismissed by the highest authorities in Pennsylvania’s Medicaid program using the code “failed to meet medical necessary criteria” when that claim is patently and demonstrably false.  I’m writing a screenplay using those hearings as the foundation; the production will be “based on true events.”  Think of “Judgment at Nuremberg” and you’ll get the gist of what I’m working on.

This business of “making the recipients pay if they lose an appeal” will not just have a “chilling” effect on grievance filings, it will freeze them out entirely.

There’s more.  Please have a look at the comments and you’ll see.

Here is a link to the CMS-2390-P proposed rule changes and comments submitted so far.!docketDetail;D=CMS-2015-0068

Will a Medicaid MCO violate Federal laws & State Regs to gag providers?

Here are the rules.  The question now is, will the Pennsylvania Medicaid Managed Care Organization that proposes to prevent its treatment providers from being advocates for their clients actually put their proposal into effect?  They claim that advocacy “is not the provider’s responsibility” but that flies in the face of the law.  Will they violate two Federal laws and State Regulations to gag providers who want to be (and could be) effective advocates for their clients, especially in Grievance hearings (when the MMCO denies necessary funding and the parent of a disabled child needs all the help they can get to thwart those misguided intentions).  Here are the laws; judge for yourself if providers of treatment can be punished, sanctioned, or thrown out of a Medicaid Managed Care Organization’s provider network for providing advocacy for their clients.


42 CFR 438.102(a)(1) states an MCO, PIHP, or PAHP may not prohibit, or otherwise restrict, a health care professional acting within the lawful scope of practice, from advising or advocating on behalf of an enrollee who is his or her patient [emphasis added], for the following:

  • The enrollee’s health status, medical care, or treatment options, including any alternative treatment that may be self-administered.
  • Any information the enrollee needs in order to decide among all relevant treatment options.
  • The risks, benefits, and consequences of treatment or nontreatment.
  • The enrollee’s right to participate in decisions regarding his or her health care, including the right to refuse treatment, and to express preferences about future treatment decisions.

Further, 42 CFR 438.402(b)(ii) states a provider, acting on behalf of the enrollee and with the enrollee’s written consent, may file an appeal. A provider may file a grievance or request a State fair hearing on behalf of an enrollee, if the State permits the provider to act as the enrollee’s authorized representative in doing so.  Please note:  The State does permit it.

PA’s Program Standards and Requirements states, in order for the provider to represent the member in the filing of a grievance, the provider must obtain the written consent of the member.   A provider may obtain the member’s written permission at the time of treatment.  A provider may NOT require a member to sign a document authorizing the provider to file a grievance as a condition of treatment.  The written consent must include:

  • The name and address of the member, the member’s date of birth and identification number,
  • If the member is a minor, or is legally incompetent, the name, address and relationship to the member of the person who signed the consent,
  • The name, address and plan identification number of the provider to whom the member is providing consent,
  • The name and address of the plan to which the grievance will be submitted,
  • An explanation of the specific service for which coverage was provided or denied to the enrollee to which the consent will apply, and
  • The following statement: “The member or the member’s representative may not submit a grievance concerning the services listed in this consent form unless the member or the member’s representative rescinds consent in writing.  The member or member’s representative has the right to rescind consent at any time during the grievance process.”

CMS: Mental Health Parity Proposed Rule for Medicaid and CHIP

I just discovered this.  Only 3 days left to comment on it.  Very important information about funding for mental health treatment for children (and adults) enrolled in Medicaid! 
Date: 2015-04-06
Title: Mental Health Parity Proposed Rule for Medicaid and CHIP

CMS proposes mental health parity rule for Medicaid and CHIP

Proposed rule will strengthen access to mental health and substance use disorder benefits for low-income Americans

The Centers for Medicare & Medicaid Services (CMS) today announced a proposed rule to align mental health and substance use disorder benefits for low-income Americans with benefits required of private health plans and insurance. The proposal applies certain provisions of the Mental Health Parity and Addiction Equity Act of 2008 to Medicaid and Children’s Health Insurance Program (CHIP). The Act ensures that mental health and substance use disorder benefits are no more restrictive than medical and surgical services.

“Improving quality and access to care impacts the health of our nation. Whether private insurance, Medicaid, or CHIP, all Americans deserve access to quality mental health services and substance use disorder services,” said Vikki Wachino, acting director, Center for Medicaid and CHIP Services.

The proposed rule ensures that all beneficiaries who receive services through managed care organizations or under alternative benefit plans have access to mental health and substance use disorder benefits regardless of whether services are provided through the managed care organization or another service delivery system. The full scope of the proposed rule applies to CHIP, regardless of whether care is provided through fee-for-service or managed care.

Currently, states have flexibility to provide services through a managed care delivery mechanism using entities other than Medicaid managed care organizations, such as prepaid inpatient health plans or prepaid ambulatory health plans. The proposed rule would continue this States flexibility in identifying varying delivery systems for Medicaid services provided to beneficiaries, while ensuring that enrollees of a Medicaid managed care organization receive the benefit of parity in services provided to them through these various means. States will be required to include contract provisions requiring compliance with parity requirements in all applicable contracts for these Medicaid managed care arrangements.

Under the proposed rule, plans must make available upon request to beneficiaries and contracting providers the criteria for medical necessity determinations with respect to mental health and substance use disorder benefits.  The proposed rule also would require the state to make available to the enrollee the reason for any denial of reimbursement or payment for services with respect to mental health and substance use disorder benefits.

“The proposed rule is a way to advance equity in the delivery of mental health and substance use disorder services. The proposal will support federal and state efforts to promote access to mental health and substance use services as part of broader delivery system reform through the Affordable Care Act,” said Wachino.

The proposed rule is available here.  The deadline to submit comments is June 9, 2015.

For more information, go to

CMS proposes New Rule to curb denial powers of Managed Care!

The Centers for Medicare and Medicaid Services (CMS) has issued a Proposed Rule (CMS-2390-P) that states on pages 148 to 149 of the Public Inspection version of the document: “While we recognize that MCOs, PIHPs, and PAHPs have flexibility in applying utilization management controls for covered services, exercising that flexibility could result in the inappropriate curtailment of necessary services, particularly for those requiring on-going and chronic care services, including LTSS.” 

LTSS refers to “Long-Term Services and Supports” such as those required by children with Autism Spectrum Disorders (ASD).  The persistently ghastly failure of Medicaid Managed Care Organizations (MMCOs) to recognize the absolute necessity for the continued delivery of LTSS to children with Autism Spectrum Disorders has been documented for decades.  This has been occurring despite the ardent appeals of advocates like myself, who have utilized every available resource to thwart the unconscionable denials of EPSDT funding for children with ASD.  Thankfully, the CMS is “clearing the fog” that has allowed MMCOs to continue their cruel and abusive denial practices (alleging that the medical necessity of prescribed treatment no longer exists “because the child has been receiving treatment for too long” or because “the child needs to have the treatment titrated to prevent dependency on the treatment providers” and other such blatant, anti-scientific luddite nonsense).

CMS deserves high praise for this explanation for CMS-2390-P):  “We acknowledge that our current standards reflect an acute care model of health care delivery and do not speak to the appropriate medical management of individuals with ongoing or chronic conditions, or the authorization of non-clinical services that maximize opportunities for individuals to have access to the benefits of community living and the opportunity to receive services in the most integrated setting. Therefore, we propose to modernize the language in §438.210 governing the coverage and authorization of services and establish standards for states through the managed care contract to ensure that MCOs, PIHPs, and PAHPs employ utilization management strategies that adequately support individuals with ongoing or chronic conditions or who require long-term services and supports.”

It is with the greatest hope imaginable that CMS will definitively state that it is the PRESCRIBER of treatment (a licensed practitioner of the healing arts under scope of state law) who determines “the purpose” for which a treatment or service is prescribed — NOT THE MMCO functionary who reads his/her report!  With that clarification in §438.210 of the Medicaid Act, the CMS will definitively deprive the MMCOs of the power to corrupt the civil right to treatment funding that was intended by the EPSDT mandate.

If the following phrase was added via CMS-2390-P, it could accomplish that noble goal definitively: “identified by the prescriber of treatment” — like this:  “As background, the foundation of coverage and authorization of services is that services in Medicaid must be sufficient in amount, duration, or scope to achieve the purpose IDENTIFIED BY THE PRESCRIBER OF TREATMENT for which the services are furnished, and services must not be arbitrarily denied or reduced because of the diagnosis or condition of the enrollee.”

Steven Kossor

Here is the link to the CMS-2390-P document itself

Here is a link to my analysis of it (so far).

Here is a link to the comments submitted regarding CMS-2390-P so far:!docketBrowser;rpp=25;po=0;D=CMS-2015-0068