Ambulance services have a reason to breathe a little easier today because CMS has backed off on a Final Rule that would have allowed states to amend their “benchmark” and “benchmark equivalent” Medicaid plans to exclude coverage of non-emergency transportation. A revised Final Rule, issued April 30, 2010, now expressly requires states to assure necessary transportation to and from providers for all beneficiaries enrolled in benchmark or benchmark-equivalent Medicaid plans.   Essentially this means that every state Medicaid plan (standard Medicaid plans, benchmark plans, and benchmark-equivalent plans) must provide for non-emergency transportation. Additionally, the new Rule, effective July 1, 2010, goes a step further in stating that even if a state Medicaid plan does not expressly include a transportation benefit, the state is still obligated to cover necessary ambulance transportation to providers.  

Read the Rule from the Federal Register in its entirety - (PDF Format)
CMS published the original Final Rule in November of 2008, and that Rule would have allowed for the exclusion of non-emergency transportation benefits from benchmark and benchmark-equivalent plans. Since that time, CMS   issued several delays in the effective date of the 2008 Final Rule and made additional requests for comments on the Rule. CMS specifically solicited comments regarding the potential effect that provisions of the Children’s Health Insurance Program Reauthorization Act of 2009 (“CHIPRA”) might have on the 2008 Final Rule.  CHIPRA clarified that the ability of states to deviate from standard Medicaid benefit requirements was more limited than originally thought. Hence, CMS changed its stance regarding the 2008 Rule since Medicaid regulations do require states to assure “necessary transportation” to and from providers when access to Medicaid covered services is needed. 

The regulation now reads as follows:

§ 440.390 Assurance of transportation.
If a benchmark or benchmark equivalent plan does not include transportation to and from medically necessary covered Medicaid services, the State must nevertheless assure that emergency and non-emergency transportation is covered for beneficiaries enrolled in the benchmark or benchmark-equivalent plan, as required under § 431.53 of this chapter. 

Page, Wolfberg & Wirth would like to thank all of those who joined us in submitting comments to CMS regarding this Final Rule. As a testament to efforts of the ambulance industry, CMS specifically mentions that “the majority of comments received on the proposed rule represented transportation providers . . .” The revision of this Rule will ensure coverage of necessary transportation services for Medicaid populations across the United States and is a welcomed sign in the current economic times. 

Background about Benchmark and Benchmark-Equivalent Plans

Before the Deficit Reduction Act of 2005 (“DRA”), states were required to offer a minimum standard benefit package to eligible Medicaid populations. The package had to include specific benefits listed under the definition of “medical assistance,” in the Social Security Act.  The DRA allowed states to amend their Medicaid plans to provide for benefit packages other than the standard benefit package for certain populations -  “benchmark benefit packages” or “benchmark equivalent packages”.  Specifically, the DRA added section 1937 to the Social Security Act stating that “notwithstanding any other provision,” states have the ability to amend their state plans to provide packages other than the standard benefit package.

States may require individuals who are “full benefit eligibles” to obtain benefits by enrolling in benchmark or benchmark-equivalent coverage.  A full benefit eligible is an individual who would otherwise be eligible to receive the standard full Medicaid benefit package under the approved state Medicaid plan.  Benchmark coverage is basically health benefits coverage that is equal to the coverage that Federal Employees or State Employees receive, or that is equal to the coverage offered by the largest HMO plan in the State.  Benchmark-equivalent coverage is health coverage that has an “aggregate actuarial value that is at least actuarially equivalent to the coverage under one of the benchmark benefits packages.”

However, certain populations are exempt from being required to enroll in benchmark or benchmark-equivalent coverages, i.e., they are entitled to all benefits provided in standard full Medicaid plans. This includes Medicaid recipients who are:

• Pregnant
• Blind
• Dual elibigle
• Terminally ill receiving hospice care
• An inpatient in a hospital, nursing facility, intermediate care facility for the mentally retarded, or other medical institution
• Medically frail
• Receiving long-term care services
• Children in foster care

While states can not require that the above-listed individuals enroll in benchmark or benchmark-equivalent plans, they may offer them the option to enroll into a benchmark or benchmark-equivalent plan.  The state must inform the individual that the enrollment is voluntary and that the individual may opt out of the coverage at any time and regain immediate access to standard full Medicaid coverage under the state plan.  The state must also inform the individual how the benchmark or benchmark-equivalent plan differs from the benefits offered under the standard full Medicaid program.