United States: Medicaid And Non-Emergency Medical Transportation

Last Updated: July 10 2019
Article by Thomas Barker

On June 19, the House of Representatives passed the funding bill for the Department of Health and Human Services for fiscal year 2020. CMS is funded in this annual legislation and this funding bill is often a vehicle for Congress to express its support or displeasure for some of CMS's activities during the year.

This year's bill is no different. Section 239 of the legislation (H.R. 2740) prohibits CMS from publishing a proposed regulation "relating to the Medicaid Non-Emergency Medical Transportation benefit." A statement by the House Appropriations Committee, which reported the bill, that said the Committee was concerned that CMS might permit states to "drop the Non-Emergency Medical Transportation (NEMT) benefit" in their Medicaid programs. The Appropriations Committee directs CMS to commission a study by the National Academy of Medicine to study the impact of the potential elimination of the benefit on vulnerable populations before moving forward with the proposed regulation.

We thought that the passage of this legislation might be a good time to give a bit of a history on the NEMT benefit in Medicaid. Specifically: What is it? Where did it come from? Who benefits from it? Is it true that CMS is really going to permit states to drop the benefit? Those are the topics we want to address in today's post.

One thing that's interesting about the NEMT benefit is that it is not mandated anywhere in the Medicaid law. It's not listed as a type of "medical assistance" in the statute, and the statute does not list provision of the benefit as a requirement of state Medicaid plans.1 Emergency or non-emergency, one would think that, at the very least, states would have to provide coverage of ambulance services to Medicaid beneficiaries. But in fact, the Medicaid law has never required this.

What the law has required – from the very beginning of the Medicaid program – is to provide "proper and efficient operation of the [state Medicaid] plan." Social Security Act § 1902(a)(4)(A). And CMS regulations have long interpreted this requirement to mean that a state Medicaid plan must, among other things, "ensure necessary transportation to and from providers" and also describe the methods by which it will meet this requirement. 42 C.F.R. § 431.53(a). As far back as 1969, CMS has maintained some version of this requirement and explained then that it included transportation by "ambulance, taxicab, common carrier, or other appropriate means."2 CMS regulations have also imposed an NEMT requirement for the ACA expansion population (42 C.F.R. § 440.390) and for children under the Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) beneficiaries (42 C.F.R. § 441.62).

It is not unheard of for states to seek, and CMS to grant, a waiver of this requirement, especially for the ACA expansion population.3 As we have written before, CMS has broad authority to waive most of the requirements of the Medicaid program, and the NEMT benefit is no exception. A state may decide that, given a limited availability of public funds, it might be wiser to expand access to services for a particular population rather than to make NEMT available to all beneficiaries in the state. That said, NEMT waivers are not as common as other provisions of the Medicaid statute that states seek to waive when implementing demonstration programs.

NEMT is a benefit that is widely used. According to the Kaiser Family Foundation in a 2015 study, there were 59.1 million total trips that year for such purposes as dialysis, preventive services, specialist visits, adult day health and physical therapy. By far, the largest number of trips were for behavioral health services.4

So why did the House of Representatives act? Presumably, they were concerned about a notice published by the Office of Management and Budget that stated that the agency was anticipating review of a proposed rule to be issued by CMS that would "provide States with greater flexibility [in administering the NEMT benefit] as part of the administration's reform initiatives." The Trump Administration's budget proposals for fiscal years 2019 and 2020 would have made NEMT an optional benefit; current CMS regulations make it a mandatory benefit. In theory, the OMB notice referred to a rule that would implement the budget proposal.

The Appropriations Committee noted that it was concerned that such a rule – even though it has not yet been released and has not yet been put on public display – might impact Medicaid beneficiaries. As discussed above, the legislation blocks CMS from using appropriated funds to implement the regulation. The House action is far from the end of the matter. The Senate must consider the legislation and will make its own judgment about whether to include the ban on funding.

In the interim period, CMS could still publish the proposal; after all, it is only a proposed regulation and cannot go into effect until the appropriate notice and comment period has expired. That being said, earlier this week, CMS moved the proposed rule to a "long-term action" with a target date of release of December, 2021. As a result, we won't be seeing the rule anytime soon. Of course, CMS may also continue to grant waivers of the NEMT requirement, even if in the absence of the rule. It is clear, however, that at least one House of Congress is paying close attention to CMS actions on the NEMT benefit.

Footnote

1 States may operate a NEMT brokerage program (Social Security Act § 1902(a)(70)), but the statute it is not required and is silent on a requirement to operate the benefit itself.

2 See 34 Fed. Reg. 9739, 9785-87 (June 24, 1969)

3 See Kaiser Family Foundation, "Medicaid Non-Emergency Medical Transportation: Overview and Key Issues in Medicaid Expansion Waivers" (Feb. 2016). Study available here.

4 Pie chart available here.

To view Foley Hoag's Medicaid and the Law blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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