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Federal Legislative Proposals Related to Medicaid and Opioids: What to Watch

Legislation to address the opioid epidemic is advancing in both the House and Senate. The House has passed several bills related to Medicaid and opioids, culminating in the Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act. The Senate Finance Committee has advanced the Helping to End Addiction and Lessen (HEAL) Substance Use Disorders Act, which is expected to be considered by the full Senate later this year. Both the SUPPORT Act and the HEAL Act contain a number of provisions related to Medicaid’s role in helping states provide coverage and services to people who need substance use disorder (SUD) treatment, in addition to Medicare and other health-related provisions. This issue brief summarizes current federal legislative proposals related to Medicaid’s role in the opioid epidemic and identifies issues to watch as final legislation takes shape. Appendix tables detail the House SUPPORT Act, the Senate HEAL Act, and other bills pending at the Senate and House committee level as of late June, 2018. Table 1 below summarizes key provisions related to Medicaid and opioids in the SUPPORT Act and HEAL Act.

Table 1:  Comparison of Provisions Related to Medicaid and Opioids in the House SUPPORT Act and
the Senate HEAL Act, as of June, 2018
Topic SUPPORT Act, passed by House, 6/22/18 HEAL Act, passed by Senate Finance Committee, 6/12/18
IMD Services
  • Amends IMD payment exclusion for enrollees with opioid or cocaine use disorder.
  • Authorizes Medicaid payments for services provided outside IMDs for pregnant and postpartum women receiving IMD SUD services.
  • Codifies managed care regulation that allows Medicaid funds for managed care capitation payments that include IMD services up to 15 days per month.
Other Services
  • Requires states to cover all FDA-approved medication-assisted treatment.
  • Expands enhanced federal match for health home services focused on enrollees with SUD.
  • Creates a state plan option to enter into provider agreements with residential pediatric recovery centers to provide services to infants with neonatal abstinence syndrome. Similar provision in H.R. 2501.
Eligibility and Enrollment
  • Prohibits states from terminating eligibility for criminal justice involved youth and requires restoration of coverage without new application upon release. Similar provision in S. 874. 
  • Requires states to cover former foster care youth up to age 26 from any state.
  • No HEAL Act provision.
Demonstrations
  • Authorizes new Section 1115 demonstrations to increase Medicaid SUD provider capacity.
  • Directs HHS Secretary to issue guidance on Section 1115 demonstrations to assist with Medicaid enrollment and cover services 30 days prior to release from prison/jail.
  • No HEAL Act provision.
Prescription Drug Oversight
  • Requires states to establish provider and pharmacy lock-in programs for enrollees at risk of prescription drug abuse or diversion.
  • Requires states to have drug utilization review safety edits for opioid refills, monitor concurrent prescribing of opioids and other drugs, and monitor antipsychotic prescribing for children.
  • Requires states to have Medicaid providers check prescription drug monitoring programs and offers enhanced federal funds for implementation if states have provider access agreements with contiguous states.
  • Directs states to facilitate access to prescription drug monitoring programs for Medicaid providers and health plans, to the extent permitted by state law.
Quality Measures -Requires states to report on adult behavioral health measures in CMS core set. -Same provision as House SUPPORT Act.
Guidance and Studies
  • Directs HHS Secretary to issue guidance on Medicaid-covered services and payment models for infants with neonatal abstinence syndrome; and to make recommendations to improve Medicaid coverage and payment for MAT, non-opioid pain management, and SUD treatment services. Similar provision in S. 2769. 
  • Requires GAO to study Medicaid coverage gaps for pregnant and post-partum women with SUD.
  • Directs MACPAC to study IMDs that receive Medicaid payments.
  • Directs HHS Secretary to issue guidance on state options for SUD telehealth services and Medicaid services for non-opioid pain management, report to Congress on best practices for reducing children’s barriers to Medicaid SUD telehealth services, report data on Medicaid SUD prevalence and treatment services, and report and provide technical assistance to states on Medicaid housing-related services and supports for enrollees with SUD.
  • Requires GAO to report on Medicaid peer support services, children’s access to SUD services including telehealth, Medicaid SUD payment rates, and barriers to providing SUD treatment medication under various distribution models.
  • Directs MACPAC to report on state Medicaid MAT utilization control policies.
  • Directs HHS Secretary to issue guidance on state options to use Medicaid funds for family-focused residential treatment programs.

House SUPPORT Act

Medicaid-related provisions in the SUPPORT Act, passed in the House by a vote of 396 to 14 on June 22, 2018, are summarized in Table 2. These include:

Services. The most controversial measure in the House bill amends the long-standing prohibition against the use of federal Medicaid funds for services in “institutions for mental disease” (IMDs) for nonelderly adults by creating a state option from CY 2019 through CY 2023 to cover those services up to 30 days in a year but only for individuals with opioid use disorder or cocaine use disorder. This provision passed the House as a stand-alone measure by a vote of 261 to 55 and then was added to the SUPPORT Act. Proponents of the House IMD bill argued that the measure is necessary to enable Medicaid to provide services across the full care continuum, while opponents maintained that states already are covering Medicaid IMD SUD services through waivers and objected to restricting services only to those with certain SUD diagnoses. The bill originally was limited to those with opioid use disorder but was amended to add cocaine use disorder to address concerns about disparate racial impact. CBO estimated a cost of $991 million for this provision when it was limited to opioid use disorder.

The SUPPORT Act also requires state Medicaid programs to cover all FDA-approved drugs for medication-assisted treatment (MAT) from October, 2020 through September, 2025, unless a state certifies to the Secretary’s satisfaction that statewide implementation is infeasible due to provider shortages. Most states cover buprenorphine and naltrexone, while fewer cover methadone. In addition, the SUPPORT Act extends the 90% enhanced federal match for Medicaid health home services focused on care coordination for beneficiaries with SUD from 8 to 10 quarters for states that elect that option.

Eligibility and Enrollment. The SUPPORT Act prohibits states from terminating Medicaid eligibility for an individual under age 21 or former foster care youth up to age 26 while incarcerated and requires states to redetermine eligibility prior to release without requiring a new application and restore coverage upon release. While Medicaid does not pay for health care services during incarceration, this measure is intended to facilitate access to coverage and care after release from prison or jail. The SUPPORT Act also requires states to cover former foster care youth up to age 26 from any state. This eliminates the need for states to get a Section 1115 waiver to cover former foster care youth from other states.

Demonstrations. The SUPPORT Act authorizes new Section 1115 demonstrations to help states increase Medicaid SUD provider capacity. The HHS Secretary would award 18-month planning grants, totaling $50 million, to 10 states, giving preference to those with average or higher SUD prevalence, particularly opioid use disorder. The Secretary would then select up to 5 states to receive enhanced federal matching funds for Medicaid SUD treatment services during the 36 month waiver implementation. The bill also requires the Secretary to issue guidance on how states can use Section 1115 demonstrations to improve health care transitions for individuals being released from prison or jail, including assistance with Medicaid enrollment and coverage of services 30 days prior to release.

Prescription Drug Oversight.  The SUPPORT Act requires states to establish prescription drug management programs that limit Medicaid beneficiaries identified as at risk of prescription drug abuse or diversion to one to three providers and pharmacies for obtaining controlled substances. States also would have to have drug utilization review safety edits in place for opioid refills, monitor concurrent prescribing of opioids and other drugs, and monitor antipsychotic prescribing for children. The bill also requires states to have Medicaid providers check prescription drug monitoring programs before prescribing controlled substances and offers enhanced federal matching funds for implementation activities if states have agreements with contiguous states for providers to access these programs.

Quality Measures. The SUPPORT Act requires state Medicaid programs to report annually on behavioral health quality measures in CMS’s adult core set beginning with 2024. These measures currently are voluntary.

Guidance and Studies.  The SUPPORT Act directs the HHS Secretary to issue guidance on Medicaid-covered services and payment models for infants with neonatal abstinence syndrome and their families as well as to make recommendations to improve Medicaid coverage and payment for MAT, non-opioid pain management, and SUD treatment services. It also requires GAO to study gaps in Medicaid coverage for pregnant and postpartum women with SUD and directs MACPAC to study IMDs that receive Medicaid payments.

The SUPPORT Act includes one Medicaid offset and 2 Medicare offsets.  The Medicaid offset allows states to retain medical loss ratio (MLR) remittances from managed care plans for the ACA expansion group at their regular FMAP, instead of the enhanced FMAP, if they establish an 85% MLR.

Senate HEAL Act

Medicaid-related provisions in the HEAL Act, approved by the Senate Finance Committee on June 12, 2018 are summarized in Table 3.  They include:

Services.  The HEAL Act authorizes Medicaid payments for services provided outside IMDs for pregnant and postpartum women receiving IMD SUD services. It also codifies the Medicaid managed care regulation that allows Medicaid funds for managed care capitation payments that include IMD services up to 15 days per month. In addition, it creates a state plan option to enter into provider agreements with residential pediatric recovery centers to provide services to infants with neonatal abstinence syndrome.

Prescription Drug Oversight.  The HEAL Act directs states to facilitate access to prescription drug monitoring programs for Medicaid providers and health plans, to the extent permitted by state law.

Quality Measures. Like the SUPPORT Act, the HEAL Act requires state Medicaid programs to report annually on behavioral health quality measures in CMS’s adult core set beginning with 2024.

Guidance and Studies. The HEAL Act directs the HHS Secretary to issue guidance on state options for SUD telehealth services and Medicaid services for non-opioid pain management, report to Congress on best practices for reducing children’s barriers to Medicaid SUD telehealth services, report data on Medicaid SUD prevalence and treatment services, report and provide technical assistance to states on Medicaid housing-related services and supports for enrollees with SUD, and issue guidance on state options to use Medicaid funds for family-focused residential treatment programs.  It also requires GAO to report on Medicaid peer support services, children’s access to SUD services including telehealth, Medicaid SUD payment rates, and barriers to providing SUD treatment medication under various distribution models.  Additionally, it directs MACPAC to report on state Medicaid MAT utilization control policies.

Looking Ahead

There are other bills related to Medicaid and opioids pending at the committee level in the Senate (Table 4) and the House (Table 5). It is unclear whether any will advance or whether the HEAL Act will be amended before passage in the Senate. There are few provisions that directly overlap in the SUPPORT Act and HEAL Act, making it likely that final legislation will go to a conference committee if the two chambers do not pass identical packages. A proposal to waive the IMD payment exclusion for all SUD services was offered as an amendment but not voted on by the Senate Finance Committee. Most of the HEAL Act provisions do not have a cost associated with them, and it remains to be seen how the two chambers will come to agreement on offsets for the SUPPORT provisions. As final legislation emerges, state Medicaid programs, SUD treatment providers, health plans, beneficiaries and other stakeholders will be watching to see what new authorities and funding will be available to address the opioid epidemic.

Appendix

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