DC

AAP Headquarters 141 Northwest Point Blvd Elk Grove Village, IL 60007-1098 Phone: 847/434-4000 Fax: 847/434-8000 E-mail: kidsdocs@aap.org www.aap.org Reply to Department of Federal Affairs Homer Building, Suite 400 N 601 13th St NW Washington, DC 20005 Phone: 202/347-8600 Fax: 202/393-6137 E-mail: kids1st@aap.org Executive Committee President Ren?e R. Jenkins, MD, FAAP President-Elect David T. Tayloe, Jr, MD, FAAP Immediate Past President Jay E. Berkelhamer, MD, FAAP Executive Director/CEO Errol R. Alden, MD, FAAP Board of Directors District I Edward N. Bailey, MD, FAAP Salem, MA District II Henry A. Schaeffer, MD, FAAP Brooklyn, NY District III Sandra Gibson Hassink, MD, FAAP Wilmington, DE District IV Francis E. Rushton, Jr, MD, FAAP Beaufort, SC District V Ellen Buerk, MD, MEd, FAAP Oxford, OH District VI Michael V. Severson, MD, FAAP Brainerd, MN District VII Kenneth E. Matthews, MD, FAAP College Station, TX District VIII Mary P. Brown, MD, FAAP Bend, OR District IX Myles B. Abbott, MD, FAAP Berkeley, CA District X John S. Curran, MD, FAAP Tampa, FL March 18, 2008 Centers for Medicare and Medicaid Services Department of Health and Human Services P.O. Box 8016 Baltimore, MD 21244-8016 Attention: CMS-2232-P and CMS-2244-P Dear Sir or Madam: On behalf of the 60,000 primary care pediatricians, pediatric medical subspecialists, and pediatric surgical specialists of the American Academy of Pediatrics, thank you for the opportunity to comment on the two above-referenced Notices of Proposed Rulemaking, which implement changes to benefit packages and premiums and cost sharing available to children under the Medicaid program. The Academy is dedicated to the health of all children, and as such, objected strongly to the underlying legislation that required the Centers for Medicare and Medicaid Services to promulgate these regulations. Children need the opportunity to receive appropriate preventive care, but these regulations will make that more difficult for children enrolled in Medicaid. Benefit Packages - CMS-2232-P The comments of the Academy focus on three areas: Transportation, the EPSDT ?Wrap-Around,? and Cost Sharing as a Benefit Limitation. Transportation ? Proposed 42 CFR sec. 440.390 and the Preamble In the Preamble, the Proposed Rule states that its thrust is to maximize state flexibility. See 73 Fed. Reg. 9715. Thus, CMS argues, the clause ?notwithstanding any other provision of this title,? relieves states from their responsibility to assure transportation for Medicaid services when they receive approval to implement benchmark or benchmark equivalent plans. Id. The Preamble further argues, ?It would be a strong disincentive for States to offer benchmark coverage through private health insurance plans if States had to supplement benchmark plans with additional transportation benefits.? Id. This interpretation will hurt children and has little to do with state flexibility. The interpretation provides an inducement that is not justified in statute for states to favor benchmark and benchmark equivalent plans over more expansive traditional Medicaid benefits. Under this analysis, benchmark plans are clearly inferior (and therefore likely less expensive) in comparison to the Medicaid benefit package in that they do not provide transportation benefits to children who may need them. Having no basis in the statute, CMS?s interpretation encourages states to use state and federal tax dollars to move children into plans that will significantly decrease their access to care. This ?apples to oranges? comparison will encourage states to compare a benefit package with a transportation benefit to a benefit package with no transportation benefit. As it is reasonable to assume that transportation is not without expense, and that these benefits are used by those who receive Medicaid, CMS has set up a competition between benefit packages that will waste state and federal tax dollars because children will become sicker when they are unable to find transportation to visit their pediatrician. This cascade in sickness will then cost the entire system more as children present in Emergency Departments with illnesses that could have been prevented with timely sick visits to pediatricians? offices. The important and fundamental reason to provide transportation services for children under the Medicaid program is that transportation benefits improve health outcomes. This has been well-documented in the scientific literature. One study examining the use of Medicaid transportation brokerage services found: The shift to transportation brokerage services decreased the probability of any inpatient expenditures by 1.9 percentage points (from a mean of 2 percent) and the probability of outpatient expenditures by 7.4 percentage points (mean of 28 percent). The monthly expenditures per person per month also decreased by $77.28 for inpatient and by $34.35 for outpatient services. Separate analysis for children age 1-2 and age 3-18 revealed that the bulk of savings are from younger children. See Kim, J., Norton, E. and Stearns, S. C. (2006, Jun), ?Do transportation brokerage services decrease expenditures and improve health outcomes of Medicaid children?" Paper presented at the annual meeting of the Economics of Population Health: Inaugural Conference of the American Society of Health Economists, TBA, Madison, WI, USA Without transportation services under Medicaid, fewer children will come to appointments as scheduled. If this uneven ?leg up? to private sector plans becomes widespread and states take up the option through State Plan Amendment applications, practicing pediatricians will be required to juggle schedules as patients with families in crisis are unable to find or provide transportation to pediatricians? offices. With Medicaid payment rates lower than 70% of Medicare on average across the country, CMS is encouraging fewer pediatricians to accept Medicaid patients as a whole and to decrease the proportion of Medicaid patients in their case mix. Encouraging states to slash transportation services because of the belief that private health insurance is automatically more appropriate for children is shortsighted, and at its core, likely a waste of taxpayer funds. If CMS is of the opinion that private sector coverage is more efficient in comparison to public Medicaid benefits, it should not handicap the public programs with a requirement to provide transportation benefits while exempting private benchmark packages from the requirement. CMS should rescind proposed sec. 440.390 and references to it in other parts of any Final Rule in order to live up to its responsibility as a good steward of taxpayer funds, to encourage pediatricians to provide care to Medicaid enrollees, and because of its shared societal obligation to help keep children healthy. The EPSDT Wrap-Around Benefit Much has been made of the assault on EPSDT contained in the Deficit Reduction Act. To clarify Congressional intent regarding this section of the new statute, Chairmen Grassley and Barton jointly wrote: It is our expectation that, in providing guidance to States regarding the DRA generally and section 1937 in particular, the Department of Health and Human Services and the Centers for Medicare and Medicaid services will explain the EPSDT requirements that states electing benchmark coverage or benchmark equivalent coverage must meet. ? In enacting section 1937(a)(1)(A), Congress intended to make no changes to EPSDT coverage. Consistent with section 1902(a)(43)(A) of the Social Security Act, EPSDT remains a required benefit to all individuals under the age of 19 who have been determined eligible for Medicaid and, if the state elects to provide coverage, up to the age of 21. ? States are permitted, however, to provide EPSDT benefits directly to Medicaid beneficiaries or they may also provide these benefits in whole or in part by the benchmark provider. Letter from The Honorable Charles Grassley and the Honorable Joe Barton to Secretary Michael Leavitt, March 29, 2006. (Emphasis added) The Proposed Rule ignores the clear instructions of the Chairmen. In direct contravention of legislative instruction, the Proposed Rule states that ?individuals must first seek coverage of EPSDT services through the benchmark or benchmark equivalent plan before seeking coverage of such through wrap-around benefits.? See 73 Fed. Reg. 9720. CMS provides no justification as to why children, and almost certainly, pediatricians, must first wrestle with the administrators of the benchmark benefit package before accessing EPSDT services, whether covered by the benchmark or available under the EPSDT wrap. This must be changed. Additionally, the Proposed Rule states in the paragraph immediately before this statement that, ?the State may provide wrap-around or additional coverage for medically necessary services not covered under such plan.? Id. To avoid confusion, the word ?may? should be changed to the word ?must? in the Preamble. By inaccurately intimating that states are not required to provide these services, CMS creates unnecessary confusion as to whose responsibility it is to wrap EPSDT benefits around non-traditional benefit packages. In other areas of the Proposed Rule, CMS correctly states that EPSDT services must wrap around benchmark plans. States are correctly required to provide them. Cost-Sharing as a Benefit Limitation At 73 Fed. Reg. 9717, CMS states, ??we do not consider cost sharing to be a limitation on the coverage (even when the benchmark plan itself does so). Thus, for example, if the selected benchmark plan document indicates that it provides for only half the cost of mental health services, we view that as a coinsurance requirement rather than as a limitation on coverage.? This analysis is highly problematic and will induce states to increase cost sharing to the point of decreasing the benefit under the plan. For instance, if CMS and the Secretary adopt this analysis when evaluating benchmark benefit options, what is to stop a state from proposing an increased cost sharing requirement on the enrollee? While the actuarial report must include this information, it is troubling that the the decreased value in the benefit due to cost sharing must be addressed elsewhere in the analysis. Clearly, cost sharing can easily turn into a benefit limitation and this analysis must be removed from the Preamble to any Final Rule. Premiums and Cost Sharing - CMS-2244-P In general, the Academy objects to the focus of the Premium and Cost Sharing regulations and their impact on the health of children in states that choose to utilize their new flexibility under the Deficit Reduction Act (DRA). In its analysis of the cost sharing provisions of the DRA, the Congressional Budget Office projected that more than 4 million children would face new or increased cost sharing over the first ten years that this provision of the DRA is in effect. Eighty percent of the savings expected to result from the new cost sharing would be due to decreased use of services. This is because even moderate levels of cost sharing have been proven to effectively deter children from receiving services. The comments of the Academy focus on one area: the lack of definition of what qualifies as a preventive service under section 447.70. The Academy believes that this section lacks specificity. It bars States from forcing enrollees to share costs for ?Preventive services such as well baby and well child care and immunizations? See 73 Fed. Reg. 9730. This section fails to define ?preventive services? let alone ?well child care and immunizations? and provides no other reference to such services found in statute or regulation. The Academy believes that the new Bright Futures guidelines, which provide an explanation of the AAP-recommended periodicity schedule for preventive visits and appropriate immunizations, should be the appropriate reference and should be included in the Regulation as the standard by which preventive services should be judged. In conclusion, the DRA made some of the most far-reaching and harmful changes to the Medicaid program. The AAP feels strongly that state and federal cost-containment strategies targeting children are not likely to yield significant savings and, in fact, may result in far greater state expenditures. Costs do not disappear when children are cut from or drop out of the Medicaid program as a result of cost-containment strategies. States may experience higher expenditures in areas such as primary clinics in public health departments, increased utilization of emergency departments, and an increase in the number of preventable hospitalizations. Other costs, which are more difficult to quantify, such as school absences for children and missed work for parents when children are sick as well as the adverse consequences of delayed treatment, are also likely. Beyond the increased costs that these changes represent are the children who are harmed. The AAP maintains its strong support for the Medicaid program, but will continue to work to repeal the sections of the Deficit Reduction Act that will cause excessive pain and suffering for eligible children and their families. Sincerely, Ren?e R. Jenkins, MD, FAAP President