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.”

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:

Steven Kossor


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