| January 2001 Final Rule
66 Fed. Reg. 6228 (Jan. 19, 2001), 42 C.F.R. §§ xx.
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August 2001 Proposed Rule
66 Fed. Reg. 43614 (Aug. 20, 2001), 42 C.F.R. §§ xx.
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| Information: Enrollees and Potential enrollees be provided information on how to access benefits available under the state plan, but not covered under the contract.
January §§ 438.10(d)(2)(ii)(E), (e)(2)(xii).
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Maintains requirement, except that health plans do not have to provide any information on where and how to obtain information about services which the plans do not provide due to moral or religious objections. State must provide information.
Proposed §§ 438.10(e)(2)(ii)(E), (f)(6)(xii).
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| Information: Certain required information (i.e. scope of benefits available under the state plan, but not covered under the contract and where and how to obtain carved-out services) to be provided to potential enrollees. Information provided when beneficiary first becomes eligible for Medicaid.
January §§ 438.10(d)(1)(ii), (d)(2)(ii).
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Need only provide summary with more detail upon request.
Provision of information when beneficiary becomes eligible for or required to enroll in a managed care plan, thus delaying when beneficiaries obtain information.
Proposed §§ 438.10(e)(1)(i), (e)(2)(ii).
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Information: Enrollees to obtain information upon enrollment and annually thereafter.
Health plans responsible for providing information.
January § 438.10(e)(1)(i).
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Provision of information upon enrollment. Notice on right to request information annually, instead of automatic provision of information.
Deletes reference of responsible party for providing information. Thus, presumably, State must decide.
Proposed § 438.10(f)(2).
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| Information: Enrollees to get information on the extent to which and how enrollees may obtain benefits, including family planning, from out-of-plan network providers, but health plans don't have to provide information about services with respect to services to which they object due to moral or religious objections, only about where to get information about these services. |
Same, except deletes requirement that health plans provide information about how to get information about services that they do not provide. |
| Information: Information specifically on pharmaceuticals, on how to obtain continued services during transition from fee-for-service to managed care or from one managed care plan to another, and on fact that individual entitled to represented by counsel during an appeal.
January §§ 438.10(e)(2)(i), (e)(2)(x), (e)(2)(xiii); 438.414(b)(5).
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Requirements deleted.
Proposed §§ 438.10(f)(6)(iv), (f)(6)(v), (g).
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| Information: Health plans to give enrollees written notice 30 days prior to the effective date of any significant change and within 90 days of a change in policy, with the 30 day time line having precedence.
January §§ 438.10(e)(ii); 438.102(c)(1)(ii).
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Same.
Proposed §§ 438.10(f)(4); § 438.102(c)(1)(ii).
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Information: Enrollees must be told of any limits on freedom of choice among network providers.
January § 438.10(e)(2)(v).
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Same. Includes explanation that this includes limits by choosing subnetworks under contract with the plan and an explanation on how to request a referral from an affiliate provider not included in the subnetwork.
Proposed § 438.10(f)(6)(ii); 66 Fed. Reg. at 43624
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| Information: Right to disenroll - no provision. |
Adds provision requiring to require States to notify enrollees of their disenrollment rights at least annually and at least 60 days prior to each open enrollment period.
Proposed § 438.10(f)(1).
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| Marketing: Marketing protections apply to potential enrollees and current enrollees.
January § 438.104.
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Marketing protections for potential enrollees only.
Proposed § 438.104
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| Marketing: State option to impose sanctions on plans that falsify or misrepresent information to an enrollee, potential enrollee, or provider.
January § 438.700(b)(5).
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Same.
Proposed § 438.700(b)(5)
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| Enrollee-Provider Communication: Health plans prohibited from limiting communication regarding enrollee's health status, medical care, treatment options and information needed to decide among treatment options; the right to participate in decisions about his or her health care; and the risks, benefits and consequences of treatment and non-treatment.
January § 438.102(b)(1).
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Same.
Proposed § 438.10(b)(1).
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| Enrollee-Provider Communication: Lists medical professionals to whom anti-gag rule applies.
January § 438.102(a).
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Includes same list.
Proposed § 438.102(a).
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| Enrollee-Provider Communication/Moral Religious Provision: Health plans do not have to provide, reimburse for, or provide coverage of a counseling or referral service to which the health plan objects on moral or religious grounds.
Proposed § 438.102(b)(3).
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Same.
January § 438.102(b)(2)
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| Enrollee-Provider Communication/Moral Religious Provision: Health plans using opt out must provide individuals with information on how to get information about carved-out services.
January § 438.102(c)(2).
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Deleted.
Proposed § 438.102(c)(2).
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| Enrollee-Provider Communication/Moral Religious Provision: State made responsible for making state plan services which are not included in the contract from other sources and to provide enrollees with information on how and where to obtain these services, including how transportation is provided. Preamble directed states to make services available through direct fee-for-service payment or through contracting with another organization.
January § 438.206(c).
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Deleted. State's responsibility to ensure continued access discussed in preamble only.
Proposed § 438.206; 66 Fed. Reg. at 43629.
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| Enrollee-Provider Communication/Moral Religious Provision: Preamble discussion did not clarify that health professionals should not be penalized if, during the course of routine or preventive visit, morally or religiously "objectionable" counseling or referral for services are provided. Health plan does not have "the right to prevent a physician from giving counseling if the physician is willing to forego any payment that may be associated."
January, 66 Fed. Reg. at 6271.
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Not addressed. |
| Enrollee-Provider Communication/Moral Religious Provision: Preamble discussion regarding public entities perhaps having a "moral" (as opposed to religious) objection.
January, 66 Fed. Reg. at 6272.
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Not addressed. |
| Enrollee-Provider Communication/Moral Religious Provision: Health plan must inform state of any policy to exclude counseling or referral services due to moral or religious grounds at the time of plan's application for Medicaid contract; whenever plan adopts policy during term of contract.
January § 438.102(c)(1)(i).
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Same.
Proposed § 438.102(c)(1)(i).
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| Enrollee-Provider Communication/Moral Religious Provision: Plan to provide notice to enrollees and potential enrollees within specific time frames about such policy. State to retain responsibility of informing enrollees about how and where to obtain services.
January § 438.102(c)(1)(ii).
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Same.
Proposed § 438.102(c)(1)(ii).
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| Default Enrollment: HCFA refused to include requirement that states give precedence to health plans that provide full scope reproductive health services in default or automatic enrollment formula, but indicated that State has flexibility to do so.
January, 66 Fed. Reg. at 6255.
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Not addressed. |
| Enrollment: HCFA refused to require that one choice of health plan offer full scope reproductive health services.
January 66 fed. Reg. at 6257.
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Not addressed |
| Disenrollment: Cause to disenroll at any time includes plan does not provide service due to moral or religious objections; enrollee needs related services (e.g. cesarean section and tubal ligation) to be performed at the same time, not all related services are available within the plan network, and the enrollee's primary care provider or another provider determines that receiving the services separately would subject the enrollee to unnecessary risk; other reasons, such as poor quality, lack of access to contract services, or lack of access to providers experienced in enrollee's health care needs.
January § 438.56(d)(2).
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Same.
Proposed § 438.56(d)(2).
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| Free-Choice of Provider: Enrollees have right to a free choice of provider for family planning services.
January § 431.51(a)(4), (5), (6).
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Same.
Proposed §§ 431.51(a)(4), (5), (6).
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| Out-of-Network Access: If health plan cannot provide necessary contract services, services must be adequately and timely covered out-of-network for as long as health plan is unable to provide them. Preamble explained that this pertains to "related services" as well.
January § 438.206(d)(5), 66 Fed. Reg. at 6262.
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Same, except related services not addressed. Also, where January rules required States to directly ensure compliance, proposed rules require only that States ensure through their contracts with health plans.
Proposed § 438.206(b)(4).
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| Out-of-Network Access: Out-of-Network access is not to result in additional costs to the enrollee.
January § 438.206(d)(8).
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Same.
Proposed § 438.206(b)(5).
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Out-of-Network Access/Rural: Out-of-network access permitted where service or type of provider not available within the health plan.
January 438.52(b)(2)(ii)(A).
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Same, except "type of provider" limited to mean "in terms of training, experience, and specialization" with no consideration of other access issues such as geographic access or waiting times for appointments.
Proposed § 438.52(b)(2)(ii)(A).
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| Out-of-Network Access/Rural: Out-of-network access for individuals with pre-existing relationships with a provider that is the primary source of care for as long as the provider continued to be the main source of the service. This would have included pregnant women who would have started prenatal care with an out-of-network provider.
January § 438.52(b)(2)(ii)(B).
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Out-of-network access for pre-existing providers limited to 60days, then enrollee must choose (or be assigned) a network provider, unless the out-of-network provider joins the health plan.
Proposed § 438.52(b)(2)(ii)(B).
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| Out-of-Network Access/Rural: Right to access out-of-network providers when (1) the only plan or provider available does not, because of moral or religious objections, provide the service the enrollee seeks; (2) where the recipient's primary care provider or other provider determines that the recipient needs related services that would subject the recipient to unnecessary risk if received separately (e.g., tubal ligation and c-section) and not all of the related services are available within the network; or (3) the State determines that other circumstances warrant out-of-network treatment.
January §§ 438.52(b)(2)(ii)(C), (b)(2)(ii)(D), (b)(2)(ii)(E).
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Same, except preamble says that, except for (1), the state need not have a fee-for-service system and that enrollees can just choose another provider within the health plan. This, in effect, would undermine the out-of-network access and the right to disenroll for cause.
Proposed §§ 438.52(b)(2)(ii)(C), (b)(2)(ii)(D), (b)(2)(ii)(E);
66 Fed. Reg. at 43627.
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| Availability of Services: Each health plan is to pay particular attention to pregnant women and other individuals with special needs in maintaining and monitoring their provider network and to demonstrate that they have the sufficient numbers and types of providers to meet the anticipated volume and types of services enrollees will require when expanding its service area.
January § 438.206(d).
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Deleted.
Proposed § 438.206(b).
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| Direct Access to Women's Health Specialists: Female enrollees must have direct access to women's health specialists for routine and preventive care. Preamble also discusses (1) the rule applies to minors access; (2) this means that women should have access to any women's health specialist in the network, unless the specialists are not taking new patients; (3) the term "women's health specialists" includes providers that, due to education or clinical experience, are women's health specialists, including Obs, GYNs, nurse midwives, and nurse practitioners; (4) the scope of services that can be accessed includes initial follow-up visits for services unique to women such as prenatal care, mammograms, pap smears, and for services to treat genito-urinary conditions.
January § 438.206(d)(2); 66 Fed. Reg. at 6305-06.
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Same, except there is no mention of the issues discussed in the January rules' Preamble.
Proposed § 438.206(b)(2).
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| Identification of Persons with Special Needs: Requires that pregnant women be identified among persons with special needs by the State and to identify these individuals to the health plans upon enrollment.
January, § 438.208(b)(3); 66 Fed. Reg. at 6308.
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Deleted.
Proposed § 438.208(b).
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| Screenings and Assessments: Differentiates "initial screening" and "comprehensive health assessment" (the latter done by appropriate medical personnel), and explains in preamble the expectation of health plans to use "best efforts" to screen each identified individual.
January § 438.208(b)(3), (d); 66 Fed. Reg. at 6309.
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Deletes distinction and deletes pregnant women from list of individuals who must be screened and requires "screens" only, which can be done by enrollment broker.
Proposed § 438.208(c), 66 Fed. Reg. at 43635.
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| Screenings and Assessments: Contains specific time frames in which screens and assessments must be done.
January, § 438.208(d), (e).
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Deleted.
January § 438.208(d), (e).
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| Treatment planning: Sets forth rules for health plans to develop and implement treatment plans for pregnant women and other enrollees with special needs. Treatment plan must be appropriate for the conditions identified; for a specific period of time and updated periodically; and specify a standing referral for an adequate number of direct access visits to specialists. Other requirements as well.
January §§ 438.208(f), 66 Fed. Reg. at 6312
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Deleted. Requires States only to ensure that health plans have a mechanism in place for individuals determined to have ongoing special conditions to have direct access to specialists, either through a standing referral or an approved number of visits. In addition, only if the health plan requires it, will a treatment plan be developed.
Proposed § 438.208(d).
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| Liability and Cost Sharing: Enrollees may not be held liable for covered services including family planning. In preamble, discussion on how protections apply to out-of-network family planning, emergency and post-stabilization services, and out-of-network services obtained due to health plan's inability to meet enrollee's needs, for rural out-of-network access as permitted under the rules.
January § 438.106; 66 Fed. Reg. at 6281-82.
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Same, but no preamble discussion.
Proposed § 438.106.
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| Liability and Cost Sharing: Any cost sharing must comply with fee-for-service cost sharing requirements, i.e. nominal cost sharing and no cost sharing for children and pregnant women, family planning, and emergency services. Preamble makes clear that there is no cost sharing for accessing emergency room services, even if it turns out not to be an emergency, under certain circumstances (e.g., sudden onset of a medical condition...).
January § 438.108, 66 Fed. Reg. at 6282-83, citing 42 C.F.R. § 447.53.
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Same, except that there is no discussion clarifying cost sharing for non-emergency services access in the emergency room.
Proposed § 438.108, 66 Fed. Reg. at 43630.
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| Liability and Cost Sharing: Providers may not deny care due to an eligible individuals inability to pay for the cost sharing.
January § 447.53(e).
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Same.
Proposed § 447.53(e).
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| Liability and Cost Sharing: Services accessed out-of-network due to health plan's inability to provide needed services may not result in greater cost to enrollee. Preamble makes clear that this applies to "related services" (i.e. c-section and tubal ligation).
January, § 438.206(d)(8), 66 Fed. Reg. at 6303.
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Same, except no discussion on related services.
Proposed § 438.206(b)(5).
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| Specification of Contract Benefits: State contracts with MCOs, PHPs, and PCCMs must clearly specify those services for which the health plan is responsible for providing.
January § 438.210(a).
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Same, except exempts PCCM and PAHP contracts.
Proposed, § 438.210(a).
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| Prior Authorization Requests: Health plans and subcontractors must have in place and follow written policies and procedures for processing prior authorization requests which reflect current standards of medical practice.
January § 438.210(b)(1).
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Same, except policies and procedures do not have to reflect current standards of medical practice.
Proposed, § 438.210(b)(1).
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| Limitations on Payments to Providers: In order for State to pay out-of-network providers for services included in the plan contracts, the State must make a reconciliation or adjustment to the capitation payments made to the health plan.
January § 438.60; 66 Fed. Reg. at 6267.
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Same.
Proposed § 438.60.
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Confidentiality: In addition to following state and federal confidentiality and disclosure laws, the State must ensure health plan procedures to:
- maintain medical records and information in a timely and accurate manner;
- specify for what purposes the health plan uses the information and to what entities outside of the health plan, and for what purposes, it discloses the information;
- permit each enrollee to request and receive a copy of records and information pertaining to the enrollee and request that they be amended or corrected;
- permit each enrollee to request and receive information on how the health plan uses and discloses information that identifies the enrollee.
January § 438.224.
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Deleted. Now requires that States, through their contracts, ensure that health plans have procedures in place to meet HIPAA rules for medical records and other health and enrollment information identifying a particular enrollee.
Proposed § 438.224.
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| Public Participation: States must specify in the state plan the process used to involve the public both in design and initial implementation of the program and the methods used to ensure ongoing public involvement.
January § 438.50(b)(4).
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Same.
Proposed § 438.50(b)(4).
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