CMS Issues Final Rule on the ACA and Foster Care

On July 5th, the Centers for Medicare & Medicaid Services (CMS) issued a final rule implementing provisions of the Affordable Care Act (ACA) including Medicaid and Children’s Health Insurance Program (CHIP) eligibility, benefits, and enrollment rules. While the final rule does not cover all of the topics in the proposed rule issued in February, it does focus on the changes that are most needed to implement the changes made by ACA starting in 2014. Additionally, it addresses key provisions deemed critical to former foster youth and children and youth currently in care.

The final rule clarifies that former foster children are already a population that is eligible to be determined presumptively eligible (the rule does not extend to current foster youth as they are already Medicaid eligible and don’t need to be determined presumptively eligible). The rule also clarifies that individuals under age 21 will continue to receive Early, Periodic, Screening, Diagnosis, and Treatment (EPSDT) services either through the Alternative Benefit Plan (ABP) or as additional coverage that supplements the ABP. The final rule makes clear that CMS does not have statutory authority to require states to provide EPSDT services beyond age 21, but acknowledges that states have the flexibility to design and offer voluntary enrollment in an ABP targeted to former foster care children that provides a more comprehensive array of health coverage than is provided through the regular state plan.

Despite recommendations that former foster youth be exempt from premiums and cost sharing, the final rule explains that while there are populations upon which states may not wish to impose cost sharing, there was no clear basis to support a federally-mandated exemption. The rule does state that agencies may not impose premiums or cost sharing on children receiving child welfare services under title IV-B as well as children in foster care and individuals receiving benefits under title IV-E, regardless of age.

One key issue not addressed in this rule that remains of concern to child welfare advocates has to do with state of residency of former foster youth. The ACA requires that in order for an individual to be eligible under this category, the individual would have to have been in foster care under the responsibility of “the state” and be enrolled in Medicaid under “the state plan” or an 1115 demonstration. Under the proposed rule, CMS interprets the requirement as meaning that the individual was in foster care and enrolled in Medicaid in the same state in which coverage under this eligibility group is sought. CMS does propose giving states the option to cover individuals under this group who were in foster care and Medicaid in any state at the age of 18 or at the point of aging out. However the proposed rule does not require states to cover former foster youth who were in care and enrolled in Medicaid in any state at the time the individual reached age 18 (19, 20, or 21), as advocates had hoped.

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