State Options for Medicaid Coverage of Inpatient Behavioral Health Services

Executive Summary
  1. Nonelderly adults are ages 21-64. “Mental disease” is an antiquated term used in the statute. It comprises “diseases listed as mental disorders in the International Classification of Diseases with the exception of mental retardation [sic], senility, and organic brain syndrome,” including the Diagnostic and Statistical Manual of Mental Disorders, and encompasses alcoholism and other chemical dependency syndromes. CMS State Medicaid Manual § 4309 (D), (E), https://www.cms.gov/Regulations-and-Guidance/guidance/Manuals/Paper-Based-Manuals-Items/CMS021927.html.

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  2. David G. Smith and Judith D. Moore, Medicaid Politics and Policy, at 188-89 (2008); see also CMS State Medicaid Manual § 4309 (A)(2), https://www.cms.gov/Regulations-and-Guidance/guidance/Manuals/Paper-Based-Manuals-Items/CMS021927.html.

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Report
  1. See Kaiser Family Foundation, Status of State Medicaid Expansion Decisions:  Interactive Map (Sept. 20, 2019), https://www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/.

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  2. 42 U.S.C. § 1396d (a)(29)(B).

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  3. 42 U.S.C. § 1396d (i). “Whether an institution is an [IMD] is determined by its overall character as that of a facility established and maintained primarily for the care and treatment of individuals with mental diseases [sic], whether or not it is licensed as such.” 42 C.F.R. § 435.1010. IMDs do not include institutions for people with intellectual disabilities. Id. Whether a particular facility is considered an IMD is based on an assessment of various factors, such as licensure or accreditation as a psychiatric facility; falling under the state’s mental health authority jurisdiction if the facility serves people with mental illness; specializing in providing psychiatric or psychological care and treatment (based on “thorough review” of patient records, an “unusually large” proportion of staff with specialized psychiatric/psychological training, or a large proportion of patients receiving psychopharmacological drugs); and the need for institutionalization resulting from “mental diseases [sic]” for more than 50% of the facility’s patients. CMS State Medicaid Manual § 4309 (C), https://www.cms.gov/Regulations-and-Guidance/guidance/Manuals/Paper-Based-Manuals-Items/CMS021927.html. Other relevant factors also may be considered, such as whether the average age of patients in a nursing facility is significantly lower than a typical nursing facility. Id. Components of entities that are certified as different provider types, such as nursing facilities and hospitals, are considered independent from each other and assessed separately. Id. § 4309 (B).

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  4. 42 U.S.C. § 1396d (a)(1); 42 C.F.R. § 440.10.

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  5. 42 U.S.C. § 1396d (a)(16)(A).

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  6. 42 U.S.C. § 1396d (a)(14).

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  7. Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities (SUPPORT) Act, H.R. 6, 115th Congress (2018); see also Kaiser Family Foundation, Federal Legislation to Address the Opioid Crisis:  Medicaid Provisions in the SUPPORT Act (Oct. 2018), https://www.kff.org/medicaid/issue-brief/federal-legislation-to-address-the-opioid-crisis-medicaid-provisions-in-the-support-act/.

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  8. Kaiser Family Foundation, Olmstead’s Role in Community Integration for People with Disabilities Under Medicaid:  15 Years After the Supreme Court’s Olmstead Decision (June, 2014), https://www.kff.org/medicaid/issue-brief/olmsteads-role-in-community-integration-for-people-with-disabilities-under-medicaid-15-years-after-the-supreme-courts-olmstead-decision/. Although the ADA’s anti-discrimination provisions do not apply to individuals who are currently using illegal drugs, the ADA does protect people who previously used illegal drugs and people with mental health disabilities.  ADA Title II Technical Assistance Manual, § II-2.3000, https://www.ada.gov/taman2.html.

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  9. Kaiser Family Foundation, Medicaid Home and Community-Based Services Enrollment and Spending (April 2019), https://www.kff.org/report-section/medicaid-home-and-community-based-services-enrollment-and-spending-issue-brief/.

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  10. Kaiser Family Foundation, Medicaid’s Role in Financing Behavioral Health Services for Low-Income Individuals (June 2017), https://www.kff.org/medicaid/issue-brief/medicaids-role-in-financing-behavioral-health-services-for-low-income-individuals/.

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  11. Section 1115 of the Social Security Act allows the Health and Human Services Secretary to waive certain provisions of federal Medicaid law for an “experimental, pilot, or demonstration project” that “is likely to assist in promoting the objectives of” the program. 42 U.S.C. § 1315 (a). Section 1115 waiver authority is limited to provisions contained in 42 U.S.C. § 1396a, while the IMD payment exclusion is contained in 42 U.S.C. § 1396d. However, the Secretary has approved IMD payment waivers under Section 1115 expenditure authority, which has been interpreted to independently permit the “costs of such [demonstration] project[s] which would not otherwise be included as [federal Medicaid] expenditures. . . [to] be regarded as expenditures under the State [Medicaid] plan. . . .”  42 U.S.C. § 1315 (a)(2).

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  12. CMS, New Service Delivery Opportunities for Individuals with a Substance Use Disorder, SMD #15-003, (July 27, 2015), https://www.medicaid.gov/federal-policy-guidance/downloads/smd15003.pdf.

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  13. CMS, Strategies to Address the Opioid Epidemic, SMD #17-003 (Nov. 1, 2017), https://www.medicaid.gov/federal-policy-guidance/downloads/smd17003.pdf.

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  14. Waivers issued under the 2015 guidance included specific day limits on IMD stays eligible for federal Medicaid funds:  Maryland’s waiver allows two 30-day stays, while California has approval for two 90-day stays for adults and two 30-day stays for adolescents. California allows a one-time 30-day extension if medically necessary, and peri-natal patients may stay for the duration of pregnancy and 60 days post-partum. California’s waiver notes that the average length of stay is 30 days.

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  15. Some waivers approved under the 2017 guidance (e.g., KY, LA, UT) do not have an explicit day limit. More recent waivers approved or renewed under the 2017 guidance (e.g. NH, NJ, IL, VT, WA) note that the state “will aim for a statewide average length of stay of 30 days. . . to ensure short-term residential treatment stays.” See, e.g., CMS Special Terms and Conditions, Illinois Behavioral Health Transformation Demonstration, at p.8, section V., ¶ 20 (July 1, 2018-June 30, 2023), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/il/il-behave-health-transform-ca.pdf; CMS Special Terms and Conditions, Vermont Global Commitment to Health Demonstration at p. 53-54, section XV., ¶ 92 (Jan. 1, 2017-Dec. 31, 2021, amended June 6, 2017), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/vt/vt-global-commitment-to-health-ca.pdf. Virginia and West Virginia’s waivers note that the average length of stay is 30 days.

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  16. Medicaid community-based behavioral health services can be covered under state plan or waiver authority. The 2015 guidance required states to cover community-based services along with short-term institutional services that “supplement and coordinate with, but do not supplant, community-based services. CMS, New Service Delivery Opportunities for Individuals with a Substance Use Disorder, SMD #15-003, (July 27, 2015), https://www.medicaid.gov/federal-policy-guidance/downloads/smd15003.pdf.

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  17. CMS, Strategies to Address the Opioid Epidemic, SMD #17-003 (Nov. 1, 2017), https://www.medicaid.gov/federal-policy-guidance/downloads/smd17003.pdf. The 2017 milestones specify that states must cover outpatient, intensive outpatient, MAT, intensive residential/inpatient, and medically supervised withdrawal management within 12-24 months of waiver approval. Section 1115 SUD Demonstration Guide for Developing Implementation Plan Protocols, https://www.medicaid.gov/medicaid/section-1115-demo/downloads/evaluation-reports/sud-implementation-plan-template.pdf. The 2017 guidance notes that “states should indicate how inpatient and residential care will supplement and coordinate with community-based care in a robust continuum of care in the state” and directs states to “demonstrate how they are implementing evidence-based treatment guidelines.” CMS, Strategies to Address the Opioid Epidemic, SMD #17-003 (Nov. 1, 2017), https://www.medicaid.gov/federal-policy-guidance/downloads/smd17003.pdf.

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  18. See also Section 1115 SUD Demonstration Guide for Developing Implementation Plan Protocols, https://www.medicaid.gov/medicaid/section-1115-demo/downloads/evaluation-reports/sud-implementation-plan-template.pdf.

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  19. CMS also released a set of 24 required and 12 recommended monitoring metrics for IMD SUD waivers based on Medicaid administrative data that align with the waiver milestones. Monitoring Metrics for Section 1115 Demonstrations with SUD Policies, https://www.medicaid.gov/medicaid/section-1115-demo/downloads/evaluation-reports/sud-monitoring-metrics.pdf; see also Medicaid Section 1115 SUD Demonstration Monitoring Report Template, https://www.medicaid.gov/medicaid/section-1115-demo/downloads/evaluation-reports/sud-monitoring-report-template.pdf; Medicaid Section 1115 SUD Demonstration Monitoring Protocol Template, https://www.medicaid.gov/medicaid/section-1115-demo/evaluation-reports/evaluation-designs-and-reports/index.html. Additionally, states may report on state-identified metrics.

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  20. These include increased referrals to and engagement in treatment, increased adherence to treatment, and reduced preventable or medically inappropriate emergency department and inpatient treatment.

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  21. These include improved access to care for physical health conditions and fewer preventable or medically inappropriate SUD readmissions.

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  22. SUD Section 1115 Demonstration Evaluation Design Technical Assistance (March 6, 2019), https://www.medicaid.gov/medicaid/section-1115-demo/downloads/evaluation-reports/sud-evaluation-design-tech-assistance.pdf.

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  23. CMS, SMD #18-011, Opportunities to Design Innovate Service Delivery Systems for Adults with a Serious Mental Illness or Children with a Serious Emotional Disturbance (Nov. 13, 2018), https://www.medicaid.gov/federal-policy-guidance/downloads/smd18011.pdf; see also CMS SMI and SED Demonstration Opportunity Technical Assistance Questions and Answers (May 17, 2019), https://www.medicaid.gov/federal-policy-guidance/downloads/faq051719.pdf.

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  24. Letter from CMS Administrator Seema Verma to Illinois Healthcare and Family Services Director Felicia Norwood at 1 (May 7, 2018), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/il/il-behave-health-transform-ca.pdf.

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  25. Letter from CMS CMCS Acting Director Tim Hill to MassHealth Assistance [sic] Secretary Daniel Tsai at 3 (June 27, 2018), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ma/ma-masshealth-ca.pdf. Massachusetts’ approved waiver includes IMD payments as part of the safety net care pool (authorizing payments according to the waiver’s uncompensated cost limit protocol for otherwise covered services for IMD patients at inpatient psychiatric hospitals and community-based detoxification centers as part of the DSH-like Pool) (¶ ¶ 21, 54(a)(i)(3); see also Attachment E, Charts A and B and Attachment H Safety Net Care Pool Uncompensated Care Cost Limit Protocol); for diversionary behavioral health services including those provided by IMDs as part of the managed care benefit package (including acute substance abuse treatment services and substance abuse clinical support services in 24-hour facilities for nonelderly adults) (¶ 40, Table C); and for additional IMD SUD services (clinically managed population-specific high-intensity residential services (specialized treatment services to meet more complex needs) and clinically managed low-intensity residential services (24-hour transitional support services and 24-hour residential rehabilitation services and community-based family SUD treatment services) in 24-hour facilities) (¶ 41, Table D). CMS, MassHealth Medicaid Section 1115 Demonstration Special Terms and Conditions, No. 11-W-00030/1 (approved July 1, 2017-June 30, 2022, amended June 27, 2018), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ma/ma-masshealth-ca.pdf. In September, 2017, Massachusetts sought an amendment that would have waived all federal payment restrictions on IMD mental health and SUD services for nonelderly adults, including the 15-day managed care limit and the safety net care pool expenditure caps. Commonwealth of Mass. Exec. Office of Health and Human Servs., Office of Medicaid.  MassHealth Section 1115 Demonstration Amendment Request (Sept. 8, 2017), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ma/ma-masshealth-pa3.pdf. In June, 2018, CMS denied the state’s request to expand the IMD payment waiver beyond the terms already approved.

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  26. Letter from CMS Administrator Seema Verma to NC Dep’t of Health & Human Servs. Deputy Sec’y for Med’l Assistance Dave Richard at 5 (Oct. 19, 2018), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/nc/nc-medicaid-reform-ca.pdf.

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  27. Another state (Maryland) indicated that CMS denied its request for IMD mental health payment waiver authority, while approving its request for IMD SUD payment authority. GAO, States Fund Services for Adults in Institutions for Mental Disease Using a Variety of Strategies, GAO-17-652 at 34 (Aug. 2017), https://www.gao.gov/assets/690/686456.pdf.

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  28. States can effectively receive federal matching funds for capitation payments made for enrollees with IMD stays up to 30 days if the stay does not exceed 15 days in a single month. Kaiser Family Foundation, CMS’s Final Rule on Medicaid Managed Care:  A Summary of Major Provisions (June 2016), https://www.kff.org/medicaid/issue-brief/cmss-final-rule-on-medicaid-managed-care-a-summary-of-major-provisions/.

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  29. Id.

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  30. The SUPPORT Act incorporates the regulatory provisions into the statute. H.R. 6, § 1013; see also Kaiser Family Foundation, Federal Legislation to Address the Opioid Crisis:  Medicaid Provisions in the SUPPORT Act (Oct. 2018), https://www.kff.org/medicaid/issue-brief/federal-legislation-to-address-the-opioid-crisis-medicaid-provisions-in-the-support-act/.

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  31. NC did not have managed care in FY 2019.

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  32. NM and WV may have discontinued use of managed care in lieu of authority in FY 2020 due to approval/implementation of Section 1115 IMD SUD waivers. Four states (CA, MD, ND, and PA) reported that they do not use this authority, and two states (GA and KS) did not respond to this question. Kaiser Family Foundation, A View from the States:  Key Medicaid Policy Changes, Results from a 50-State Medicaid Budget Survey for State Fiscal Years 2019 and 2020 at 55 (Oct. 2019), https://www.kff.org/medicaid/report/a-view-from-the-states-key-medicaid-policy-changes-results-from-a-50-state-medicaid-budget-survey-for-state-fiscal-years-2019-and-2020/.

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  33. DSH payments to IMDs are limited to the lesser of the state’s FY 1995 DSH payment to IMDs and other mental health facilities or one-third of the state’s FY 1995 DSH allotment. 42 U.S.C. § 1396r-4 (h); GAO, States Fund Services for Adults in Institutions for Mental Disease Using a Variety of Strategies, GAO-17-652 at 34 (Aug. 2017), https://www.gao.gov/assets/690/686456.pdf.

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  34. The 30 days do not need to be consecutive.  H.R. 6, § 5052 (a)(2) (creating new Social Security Act § 1915 (l)(2)).

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  35. H.R. 6, § § 5051-5052; see also Kaiser Family Foundation, Federal Legislation to Address the Opioid Crisis:  Medicaid Provisions in the SUPPORT Act (Oct. 2018), https://www.kff.org/medicaid/issue-brief/federal-legislation-to-address-the-opioid-crisis-medicaid-provisions-in-the-support-act/. The new state plan option authorizes Medicaid funding for 30 days of services provided in IMDs as well as for other medically necessary services provided outside IMDs to IMD patients. H.R. 6, § 5052 (a)(2) (creating new Social Security Act § 1915 (l)(6)).

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  36. H.R. 6, § 5052 (a)(2) (creating new Social Security Act § 1915 (l)(5)).

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  37. H.R. 6, § 5052 (b) (noting that the new state plan option is not be to be construed as preventing states from conducting Section 1115 demonstration waivers to improve access to and quality of SUD treatment for nonelderly adults).

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  38. H.R. 6, § 5052 (a)(2) (creating new Social Security Act § 1915 (l)(7)(C)). MAT must include at least one antagonist (e.g., naltrexone) and one partial agonist (e.g., buprenorphine). Methadone is a full agonist. SAMHSA, Medications for Opioid Use Disorder for Healthcare and Addiction Professionals, Policymakers, Patients, and Families Treatment Improvement Protocol 63  at Exhibit 1-1 (2018), https://store.samhsa.gov/shin/content/SMA18-5063FULLDOC/SMA18-5063FULLDOC.pdf.

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  39. H.R. 6, § 1012; see also CMCS Informational Bulletin, State Guidance for the New Limited Exception to the IMD Exclusion for Certain Pregnant and Postpartum Women included in Section 1012 of the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act (Pub. L. 115-271), entitled Help for Moms and Babies (July 26, 2019), https://www.medicaid.gov/federal-policy-guidance/downloads/cib072619-1012.pdf.

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  40. State and local funding must remain at the level for the most recent fiscal year prior to SUPPORT Act enactment or the most recently ended fiscal year as of the date the state submits a state plan amendment to elect the new option, if higher. H.R. 6, § 5052 (a)(2) (creating new Social Security Act § 1915 (l)(3)(A)). States must verify compliance with the maintenance of effort requirement before a SUPPORT Act SPA can be approved. Id. The Secretary is to establish a process for state reporting within 8 months of enactment.  Id.

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  41. The maintenance of effort provision applies to outpatient and community-based SUD treatment services; evidence-based recovery and support services; clinically directed therapeutic treatment to facilitate recovery skills, relapse prevention, and emotional coping strategies; outpatient MAT, related therapies, and pharmacology; counseling and clinical monitoring; outpatient withdrawal management and related treatment designed to alleviate acute emotional, behavioral, cognitive, or biomedical distress resulting from or occurring with alcohol or drug use; routine monitoring of medication adherence; and other outpatient and community-based SUD treatment services designated by the HHS Secretary. Id.

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  42. The screening must include “initial and periodic assessment to determine the appropriate level of care, length of stay, and setting of care for each individual.” H.R. 6, § 5052 (a)(2) (creating new Social Security Act § 1915 (l)(4)(B)). Additionally, the SUPPORT Act IMD option shall not be construed as encouraging states to place individuals in inpatient or residential settings when home or community-based services would be more appropriate. H.R. 6, § 5052 (b).

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  43. H.R. 6, § 5052 (a)(2) (creating new Social Security Act § 1915 (l)(4)(D)(ii)). The state must consider the proximity to an individual’s support network, such as family members, employment, counseling, and other services near an individual’s residence. H.R. 6, § 5052 (a)(2) (creating new Social Security Act § 1915 (l)(4)(D)(i)).

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  44. These include (1) early intervention for those who are at known risk of developing substance-related problems and those for whom there is not yet sufficient information to document a diagnosable SUD; (2) outpatient recovery or motivational enhancement therapies and strategies at less than 9 hours per week for adults and less than 6 hours per week for adolescents; (3) intensive outpatient to treat multidimensional instability at 9 hours or more per week for adults and 6 hours or more per week for adolescents; and (4) partial hospitalization to treat multidimensional instability that does not require 24-hour care at 20 hours or more per week for adults and adolescents. H.R. 6, § 5052 (a)(2) (creating new Social Security Act § 1915 (l)(4)(C)).

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  45. These include: (1) clinically managed low-intensity residential services for adults and adolescents, including 24-hour living support with trained personnel and at least 5 hours of clinical services per week per individual; (2) clinically managed population-specific high intensity residential services to stabilize multidimensional imminent danger and provide less intense milieu and group treatment for those with cognitive or other impairments unable to use full active milieu or therapeutic community for adults, including 24-hour care with trained counselors and less intensive treatment for those with cognitive or other impairments; (3) clinically managed high intensity residential services intended to stabilize multi-dimensional imminent danger and prepare for outpatient treatment for adults and clinically managed medium-intensity residential services for adolescents, including 24-hour care with trained counselors; (4) medically monitored intensive inpatient withdrawal management for adults and medically monitored high-intensity inpatient services for adolescents, including 24-hour nursing care, physician availability for significant problems, and 16 hours per day of counseling services; and (5) medically managed intensive inpatient services targeted to individuals with severe unstable problems in acute intoxication and/or withdrawal potential, biomedical conditions and complications, and emotional, behavioral or cognitive conditions and complications for adults and adolescents, including 24-hour nursing care and daily physician care. H.R. 6, § 5052 (a)(2) (creating new Social Security Act § 1915 (l)(4)(C)(ii) and (7)(A)). The SUPPORT Act requires physician availability for significant problems in ASAM Dimensions 1, 2, and 3. Id. These include significant problems in acute intoxication and/or withdrawal potential, biomedical conditions and complications, and emotional, behavioral or cognitive conditions and complications. Amer. Soc’y of Addiction Med., At A Glance:  The Six Dimensions of Multidimensional Assessment, last accessed Oct. 24, 2019, https://www.asam.org/resources/the-asam-criteria/about.

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  46. Kaiser Family Foundation, A View from the States:  Key Medicaid Policy Changes, Results from a 50-State Medicaid Budget Survey for State Fiscal Years 2019 and 2020 at 55 (Oct. 2019), https://www.kff.org/medicaid/report/a-view-from-the-states-key-medicaid-policy-changes-results-from-a-50-state-medicaid-budget-survey-for-state-fiscal-years-2019-and-2020/.

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  47. Id. at Table 9.

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  48. These states include AL, AK, AZ, AR, FL, GA, HI, KS, KY, MA, MN, MT, NV, NM, NY, OK, UT, VT, WV, WI, and WY. Id.

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  49. These states include CA, CO, CT, DE, DC, IL, IA, LA, ME, MI, MS, MO, NE, NJ, NC, ND, OH, OR, PA, RI, SC, TX, UT, and WA. In addition, MD did not respond to this survey question. Id.

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  50. Id. at 55.

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  51. Id.

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  52. Kaiser Family Foundation, Medicaid Waiver Tracker: Approved and Pending Section 1115 Waivers by State (Oct. 9, 2019), https://www.kff.org/medicaid/issue-brief/medicaid-waiver-tracker-approved-and-pending-section-1115-waivers-by-state/.

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  53. Vermont had sought expanded waiver authority for IMD mental health services along with new SUD authority, but CMS approved only the SUD authority. Letter from CMS, CMCS Acting Director Timothy B. Hill to Vermont Agency of Human Services Secretary Al Gobeille, at 1 (June 6, 2018), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/vt/vt-global-commitment-to-health-ca.pdf.

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  54. Other states’ plans were undetermined at the time of this survey, with the exception of MD, which did not respond to this question. Kaiser Family Foundation, A View from the States:  Key Medicaid Policy Changes, Results from a 50-State Medicaid Budget Survey for State Fiscal Years 2019 and 2020 at 55 and Table 9 (Oct. 2019), https://www.kff.org/medicaid/report/a-view-from-the-states-key-medicaid-policy-changes-results-from-a-50-state-medicaid-budget-survey-for-state-fiscal-years-2019-and-2020/.

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  55. Additionally, the SUPPORT Act directs MACPAC to study Medicaid payments to IMDs in a representative sample of at least two states by January 2020. The study must include the number of IMDs, facility type, and any coverage limits; services provided and clinical assessment, reassessment, and discharge processes; any federal waivers and other Medicaid funding sources such as supplemental payments; state certification, licensure, and accreditation requirements; state quality, clinical, and facility standards; and recommendations for Congress and CMS to improve care, standards, and data collection. H.R. 6, § 5011-5012.

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  56. “As part of its original 1115 Demonstration for the Vermont Health Access Plan (VHAP) Medicaid Expansion, Vermont received a waiver of the IMD exclusion. This waiver, effective January 1, 1996, permitted Vermont to reimburse IMDs for individuals enrolled under the 1115 Demonstration. At that time, the rationale behind this waiver was to permit the use of IMDs as alternatives to potentially more costly, general acute hospital services. . . The IMD waiver was completely phased out January 1, 2006. . . Since 2005 Vermont has used its “in lieu of” authority under [the] Global Commitment [to Health Section 1115 Demonstration to fund IMD services.]” The Pacific Health Policy Group, Vermont Global Commitment to Health Section 1115 (a) Medicaid Demonstration 11-W-00194/1, Interim Evaluation Report #1, including Evaluation of IMD Expenditures at 39-40 (March 30, 2018), https://dvha.vermont.gov/administration/vt-gc-1115-demo-interim-eval-report-final-apr2-18.pdf.

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  57. See id.

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  58. Vermont Agency of Human Servs., Global Commitment to Health Section 1115 Medicaid Demonstration, 11-W-00194/1, Final Evaluation Design Extension Period Jan. 1, 2017-Dec. 31, 2018, Amended June 6, 2018, Effective July 1, 2018, at 11 (approved by CMS June 19, 2019), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/vt/Global-Commitment-to-Health/vt-global-commitment-to-health-eval-dsgn-appvl-20190609.pdf.

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  59. CMS Special Terms and Conditions, California Medi-Cal 2020 Demonstration, #11-W-00193/9 (approved Dec. 30, 2015-Dec. 31, 2020, amended June 7, 2018), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ca/ca-medi-cal-2020-ca.pdf . The counties serve as managed care plans, overseeing provider qualifications and training, network adequacy, quality assurance and performance improvement, beneficiary rights and protections, program integrity, and service delivery. California Health Care Foundation, Medi-Cal Moves Addiction Treatment into the Mainstream:  Early Lessons from the Drug Medi-Cal Organized Delivery System Pilots at 4, 5 (Aug. 2018), https://www.chcf.org/wp-content/uploads/2018/08/MediCalMovesAddictionTreatmentToMainstream.pdf.

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  60. CMS Special Terms and Conditions, Virginia Governor’s Access Plan for the Seriously Mentally Ill (GAP) and Addiction and Recovery Treatment Services (ARTS) Delivery System Transformation Demonstration, #11-W-00297/3 (approved Jan. 12, 2015-Dec. 31, 2019, amended Sept. 22, 2017), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/va/va-gov-access-plan-gap-ca.pdf.

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  61. WV added methadone and peer recovery supports. CMS Special Terms and Conditions, West Virginia Continuum of Care for Medicaid Enrollees with Substance Use Disorders, #11-W-00307/3 (approved Jan. 1, 2018-Dec. 31, 2022), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/wv/wv-creating-continuum-care-medicaid-enrollees-substance-ca.pdf.

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  62. Kansas’ waiver added SUD rehabilitation services intended to avoid preventable inpatient hospitalizations and also includes a pilot program to provide supported employment services to 500 enrollees with a behavioral health diagnosis, including those with co-occurring SUD, who receive SSI or SSDI benefits. CMS Special Terms and Conditions, KanCare, No. 11-W-00238/7 (Jan. 1, 2019-Dec. 31, 2023), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ks/ks-kancare-ca.pdf.

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  63. Illinois is piloting case management, peer recovery supports, and supported employment services. CMS Special Terms and Conditions, Illinois Behavioral Health Transformation Section 1115 (a) Demonstration, #11W00316/5 (approved July 1, 2018-June 30, 2023), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/il/il-behave-health-transform-ca.pdf.

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  64. Alaska expanded some HCBS under state plan authority and is using the waiver to pilot case management, peer recovery supports, and supported employment services. CMS Special Terms and Conditions, Alaska Substance Use Disorder and Behavioral Health Program, No. 11-W-00318/0 (Jan. 1, 2019-Dec. 31, 2023), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ak/ak-behavioral-health-demo-ca.pdf.

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  65. IN expanded HCBS using state plan authority. CMS Special Terms and Conditions, Healthy Indiana Plan (HIP), #11-W-00296/5 (approved Feb. 1, 2018-Dec. 31, 2020), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/in/in-healthy-indiana-plan-support-20-ca.pdf.

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  66. WI expanded HCBS using state plan authority. CMS Special Terms and Conditions, Wisconsin BadgerCare Reform, #11-W-00293/5 (approved Oct. 31, 2018-Dec. 31, 2023), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/wi/wi-badgercare-reform-ca.pdf.

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  67. KY added methadone using state plan authority contingent on waiver authority that eliminates the requirement for the state to provide non-emergency medical transportation for enrollees to access those services. CMS Special Terms and Conditions, KY HEALTH 1115 Demonstration, #11-W-00306/4 and 21-W-00067/4 (approved Jan. 12, 2018-Sept. 30, 2018, amended Nov. 20, 2018), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ky/ky-health-ca.pdf.

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  68. UCLA Integrated Substance Abuse Programs, California’s Drug Medi-Cal Organized Delivery System 2018 Evaluation Report at 4 (revised Oct. 19, 2018), http://www.uclaisap.org/dmc-ods-eval/assets/documents/2017-2018%20UCLA%20DMC-ODS%20Evaluation%20Report%2011192018.pdf; VCU Health Behavior and Pol’y School of Medicine, An Evaluation Report Prepared for the Va. Dep’t of Med’l Assist. Servs., Addiction and Recovery Treatment Servs. Access and Utilization during the First Year (April 2017-March 2018) at 15, 24 (Aug. 2018), https://hbp.vcu.edu/media/hbp/policybriefs/pdfs/ARTSone-yearreport_8.9.18_Final.pdf.

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  69. Behavioral Health Concepts, Drug Medi-Cal Organized Delivery System External Quality Review Report FY 2017-2018 (Nov. 19, 2018), https://www.caleqro.com/data/DMC/County%20&%20Annual%20DMC%20Reports/FY%202017-2018%20Reports/Annual%20Report/CalEQRO%20DMC-ODS%20Statewide%20Annual%20Report%20FY17-18%20.pdf; UCLA Integrated Substance Abuse Programs, California’s Drug Medi-Cal Organized Delivery System 2018 Evaluation Report (revised Oct. 19, 2018), http://www.uclaisap.org/dmc-ods-eval/assets/documents/2017-2018%20UCLA%20DMC-ODS%20Evaluation%20Report%2011192018.pdf.

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  70. Behavioral Health Concepts, Drug Medi-Cal Organized Delivery System External Quality Review Report FY 2017-2018 at xii (Nov. 19, 2018), https://www.caleqro.com/data/DMC/County%20&%20Annual%20DMC%20Reports/FY%202017-2018%20Reports/Annual%20Report/CalEQRO%20DMC-ODS%20Statewide%20Annual%20Report%20FY17-18%20.pdf.

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  71. See also California Health Care Foundation, How Medi-Cal is Improving Treatment for Substance Use Disorder in California at 2 Dec. 2018), https://www.chcf.org/wp-content/uploads/2018/11/HowMediCalImprovingTreatmentSUD.pdf; California Health Care Foundation, Medi-Cal Moves Addiction Treatment into the Mainstream:  Early Lessons from the Drug Medi-Cal Organized Delivery System Pilots at 8-9 (Aug. 2018), https://www.chcf.org/wp-content/uploads/2018/08/MediCalMovesAddictionTreatmentToMainstream.pdf; UCLA Integrated Substance Abuse Programs, California’s Drug Medi-Cal Organized Delivery System 2018 Evaluation Report at 4 (revised Oct. 19, 2018), http://www.uclaisap.org/dmc-ods-eval/assets/documents/2017-2018%20UCLA%20DMC-ODS%20Evaluation%20Report%2011192018.pdf.

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  72. California Health Care Foundation, Medi-Cal Moves Addiction Treatment into the Mainstream:  Early Lessons from the Drug Medi-Cal Organized Delivery System Pilots at 4, 5, 6 (Aug. 2018), https://www.chcf.org/wp-content/uploads/2018/08/MediCalMovesAddictionTreatmentToMainstream.pdf.

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  73. VCU Health Behavior and Pol’y School of Medicine, An Evaluation Report Prepared for the Va. Dep’t of Med’l Assist. Servs., Addiction and Recovery Treatment Servs. Access and Utilization during the First Year (April 2017-March 2018) at 7 (Aug. 2018), https://hbp.vcu.edu/media/hbp/policybriefs/pdfs/ARTSone-yearreport_8.9.18_Final.pdf.

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  74. Id. at 10.

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  75. Id. at 11.

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  76. UCLA Integrated Substance Abuse Programs, California’s Drug Medi-Cal Organized Delivery System 2018 Evaluation Report at 2 (revised Oct. 19, 2018), http://www.uclaisap.org/dmc-ods-eval/assets/documents/2017-2018%20UCLA%20DMC-ODS%20Evaluation%20Report%2011192018.pdf.

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  77. Behavioral Health Concepts, Drug Medi-Cal Organized Delivery System External Quality Review Report FY 2017-2018 at 48 (Nov. 19, 2018), https://www.caleqro.com/data/DMC/County%20&%20Annual%20DMC%20Reports/FY%202017-2018%20Reports/Annual%20Report/CalEQRO%20DMC-ODS%20Statewide%20Annual%20Report%20FY17-18%20.pdf.

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  78. Vermont uses HEDIS measures. The Pacific Health Policy Group, Vermont Global Commitment to Health Section 1115 (a) Medicaid Demonstration 11-W-00194/1, Interim Evaluation Report #1, including Evaluation of IMD Expenditures at 82-83 (March 30, 2018), https://dvha.vermont.gov/administration/vt-gc-1115-demo-interim-eval-report-final-apr2-18.pdf.

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  79. UCLA Integrated Substance Abuse Programs, California’s Drug Medi-Cal Organized Delivery System 2018 Evaluation Report at 2 (revised Oct. 19, 2018), http://www.uclaisap.org/dmc-ods-eval/assets/documents/2017-2018%20UCLA%20DMC-ODS%20Evaluation%20Report%2011192018.pdf.

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  80. Behavioral Health Concepts, Drug Medi-Cal Organized Delivery System External Quality Review Report FY 2017-2018 at v (Nov. 19, 2018), LINK.

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  81. Dr. Luke Bergmann, Director Behavioral Health Services and Christian Jones, Public Consulting Group, Update on Advancing the Behavioral Health Continuum of Care Through Regional Collaboration and Innovation, Board Conference First Quarterly Update at 9 (March 26, 2019), on file with authors.

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  82. The Pacific Health Policy Group, Vermont Global Commitment to Health Section 1115 (a) Medicaid Demonstration 11-W-00194/1, Interim Evaluation Report #1, including Evaluation of IMD Expenditures at 50, 81 (March 30, 2018), https://dvha.vermont.gov/administration/vt-gc-1115-demo-interim-eval-report-final-apr2-18.pdf

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  83. Id. at 67, 81.

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  84. Id. at 83.

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  85. VCU Health Behavior and Pol’y School of Medicine, An Evaluation Report Prepared for the Va. Dep’t of Med’l Assist. Servs., Addiction and Recovery Treatment Servs. Access and Utilization during the First Year (April 2017-March 2018) at 19-21 (Aug. 2018), https://hbp.vcu.edu/media/hbp/policybriefs/pdfs/ARTSone-yearreport_8.9.18_Final.pdf. The evaluation notes “[a]lthough the report did not specifically identify ARTS as the casual mechanism for the decrease in emergency department visits and inpatient admissions, it is consistent with the expectation that increased access to treatment should result in fewer overdoses and other addiction-related health emergencies and hospitalization.” Id. at 24.

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  86. The Pacific Health Policy Group, Vermont Global Commitment to Health Section 1115 (a) Medicaid Demonstration 11-W-00194/1, Interim Evaluation Report #1, including Evaluation of IMD Expenditures at 71 (March 30, 2018), https://dvha.vermont.gov/administration/vt-gc-1115-demo-interim-eval-report-final-apr2-18.pdf. Vermont may be able to achieve an average statewide 30-day length of state looking across all IMD SUD and mental health facilities, but CMS policy requires that length of stay be determined separately for SUD vs. mental health services.

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  87. See also California Health Care Foundation, How Medi-Cal is Improving Treatment for Substance Use Disorder in California at 2 Dec. 2018), https://www.chcf.org/wp-content/uploads/2018/11/HowMediCalImprovingTreatmentSUD.pdf; California Health Care Foundation, Medi-Cal Moves Addiction Treatment into the Mainstream:  Early Lessons from the Drug Medi-Cal Organized Delivery System Pilots at 8 (Aug. 2018), https://www.chcf.org/wp-content/uploads/2018/08/MediCalMovesAddictionTreatmentToMainstream.pdf; Behavioral Health Concepts, Drug Medi-Cal Organized Delivery System External Quality Review Report FY 2017-2018 at x (Nov. 19, 2018), https://www.caleqro.com/data/DMC/County%20&%20Annual%20DMC%20Reports/FY%202017-2018%20Reports/Annual%20Report/CalEQRO%20DMC-ODS%20Statewide%20Annual%20Report%20FY17-18%20.pdf.

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  88. Behavioral Health Concepts, Drug Medi-Cal Organized Delivery System External Quality Review Report FY 2017-2018 at xiii (Nov. 19, 2018), https://www.caleqro.com/data/DMC/County%20&%20Annual%20DMC%20Reports/FY%202017-2018%20Reports/Annual%20Report/CalEQRO%20DMC-ODS%20Statewide%20Annual%20Report%20FY17-18%20.pdf.

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  89. The Pacific Health Policy Group, Vermont Global Commitment to Health Section 1115 (a) Medicaid Demonstration 11-W-00194/1, Interim Evaluation Report #1, including Evaluation of IMD Expenditures at 40 (March 30, 2018), https://dvha.vermont.gov/administration/vt-gc-1115-demo-interim-eval-report-final-apr2-18.pdf.

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  90. Vermont’s existing inpatient mental health capacity may be inadequate to meet patient needs, given reports of psychiatric boarding in emergency rooms due to high occupancy rates and based on nationally recognized level of care placement criteria. Id. at 84.

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Appendices
  1. Connie J. Evashwick, “Creating the continuum of care.” Health matrix (1989), https://www.ncbi.nlm.nih.gov/pubmed/10293297.

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  2. Kaiser Family Foundation, Key State Policy Choices About Medicaid Home and Community-Based Services (April 2019), https://www.kff.org/medicaid/issue-brief/key-state-policy-choices-about-medicaid-home-and-community-based-services/.

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  3. CMS, Medicaid Disproportionate Share Hospital (DSH) Payments, https://www.medicaid.gov/medicaid/finance/dsh/index.html.

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  4. 42 U.S.C. § 1396d (a)(29)(B).

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  5. CMS, Managed Care, https://www.medicaid.gov/medicaid/managed-care/index.html.

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  6. Kaiser Family Foundation, Olmstead’s Role in Community Integration for People with Disabilities Under Medicaid:  15 Years After the Supreme Court’s Olmstead Decision (June, 2014), https://www.kff.org/medicaid/issue-brief/olmsteads-role-in-community-integration-for-people-with-disabilities-under-medicaid-15-years-after-the-supreme-courts-olmstead-decision/.

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  7. Kaiser Family Foundation, Section 1115 Medicaid Demonstration Waivers: The Current Landscape of Approved and Pending Waivers (February 2019), https://www.kff.org/medicaid/issue-brief/section-1115-medicaid-demonstration-waivers-the-current-landscape-of-approved-and-pending-waivers/.

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  8. SAMHSA, Mental Health and Substance Use Disorders (April 13, 2019) https://www.samhsa.gov/find-help/disorders.

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  9. Id.

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  10. Id.

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  11. H.R. 6, § 5052 (a)(2) (creating new Social Security Act § 1915 (l)(6)).

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