# Medicaid Program; Low-Income Eligibility Groups and Coverage of Services; Legislative Changes

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## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** March 23, 1994

## Text

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Health Care Financing Administration

42 CFR Parts 431, 435, 436, 440, and 447

[MB-13-P]
RIN 0938-AD17

Medicaid Program; Low-Income Eligibility Groups and Coverage of
Services; Legislative Changes

AGENCY: Health Care Financing Administration (HCFA), HHS.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend the Medicaid regulations to:
incorporate categorically needy eligibility groups of pregnant women,
infants, and children and aged and disabled individuals with incomes
related to the Federal poverty income guidelines; expand the deemed
eligibility group of newborn children; expand the eligibility group of
qualified children; clarify eligibility of homeless individuals;
provide for the continuous eligibility of pregnant women without regard
to changes in income; provide for ambulatory prenatal care for certain
pregnant women during a limited period of presumptive eligibility,
based on income eligibility only; and tie the medical assistance
program to the Aid to Families with Dependent Children (AFDC) payment
levels in the State.
The amendments would conform the regulations to provisions of the
Omnibus Budget Reconciliation Acts of 1990 and 1989, the Medicare
Catastrophic Coverage Act of 1988, the Family Support Act of 1988, the
Omnibus Budget Reconciliation Acts of 1987 and 1986, and the Homeless
Eligibility Clarification Act of 1986.

DATES: Written comments will be considered if we receive them at the
appropriate address, as provided below, no later than 5 p.m. on May 23,
1994.

ADDRESSES: Mail written comments (original and 3 copies) to the
following address: Health Care Financing Administration, Department of
Health and Human Services, Attention: MB-13-P, P.O. Box 7518,
Baltimore, Maryland 21207-0518.
Please address a copy of comments on information collection
requirements to: Office of Information and Regulatory Affairs, Attn.:
Laura Oliven, Office of Management and Budget, Room 3002, New Executive
Office Building, Washington, DC 20503.
If you prefer, you may deliver your written comments (original and
3 copies) to one of the following locations:

Room 309-G, Hubert H. Humphrey Building, 200 Independence Avenue,
SW., Washington, DC 20201, or Room 132, East High Rise Building, 6325
Security Boulevard, Baltimore, Maryland 21207.

Due to staffing and resource limitations, we cannot accept comments
by facsimile (FAX) transmission. In commenting, please refer to file
code MB-13-P. Comments received timely will be available for public
inspection as they are received, beginning approximately 3 weeks after
publication, in Room 309-G of the Departmental offices at 200
Independence Ave., SW., Washington, DC, on Monday through Friday of
each week from 8:30 a.m. to 5 p.m. (202-690-7890).

FOR FURTHER INFORMATION CONTACT: Marinos Svolos, (410) 966-4452
(Eligibility) Robert Wardwell, (410) 966-5659 (Coverage of services).

SUPPLEMENTARY INFORMATION:

I. Background

Under title XIX of the Social Security Act (the Act), generally
States with Medicaid programs are required to provide Medicaid
eligibility to individuals, children, and families who are receiving,
or are deemed to be receiving, cash assistance under the aid to
families with dependent children (AFDC) program, the supplemental
security income (SSI) program, and the mandatory State supplement
program; and to certain other needy pregnant women and children
(referred to as the mandatory categorically needy eligibility groups).
At State option, States may provide Medicaid to individuals who meet
the categorical and financial requirements for the cash assistance
programs but, for various reasons, are not receiving such assistance--
for example, individuals who are in institutions or have not applied
for cash assistance benefits--and to certain other specified needy
groups (referred to as the optional categorically needy eligibility
groups).
In addition to categorically needy groups, States, at their option,
may provide Medicaid to individuals who would be eligible for the cash
assistance programs except that they have income or resources above
allowable levels (referred to as the medically needy eligibility
group). The medically needy are permitted to reduce their income to the
allowed level by deducting (spending down) incurred medical expenses to
become eligible for Medicaid.
In recent years, a number of statutes have been enacted that
established new eligibility groups, revised existing eligibility
groups, or expanded services to certain low-income individuals. On
October 21, 1986, Congress passed provisions of the Omnibus Budget
Reconciliation Act of 1986 (OBRA '86), Public Law 99-509, that amended
the Social Security Act to expand the Medicaid eligibility groups.
States were given the option of providing Medicaid to certain needy
individuals who had incomes up to a certain specified percentage of
Federal poverty income guidelines and who previously were not eligible
for Medicaid as categorically needy. These individuals included
pregnant women, infants, and children (section 9401) and aged and
disabled individuals (section 9402). In addition, section 9407 allowed
States to provide ambulatory prenatal care to pregnant women during a
presumptive eligibility period on the basis of income eligibility only.
OBRA '86 also clarified Medicaid eligibility of homeless
individuals who are residents of a State, regardless of whether or not
they maintain a home at a fixed address or maintain it permanently
(section 9405). In addition, section 11005 of the Homeless Eligibility
Clarification Act (title XI of the Anti-Drug Abuse Act of 1986, Public
Law 99-570), enacted on October 27, 1986, requires that a State
Medicaid plan provide for a method of making medical services
eligibility cards available to Medicaid-eligible individuals who do not
reside in a permanent dwelling or at a fixed address.
The Omnibus Budget Reconciliation Act of 1987 (OBRA '87), Public
Law 100-203, enacted on December 22, 1987, made further changes in the
Social Security Act to expand the optional eligibility groups of low-
income pregnant women, infants, and children and the mandatory
eligibility group of qualified children under a certain age. OBRA '87
also allowed a State to impose a monthly premium on optional
categorically needy pregnant women and infants with incomes between 150
and 185 percent of the Federal poverty level. In addition, section 4105
of OBRA '87 clarified Medicaid coverage of clinic services furnished
outside of clinic facilities to homeless individuals.
The Medicare Catastrophic Coverage Act of 1988 (MCCA), Public Law
100-360, enacted on July 1, 1988, also further amended provisions
relating to the eligibility groups of individuals with incomes related
to the Federal poverty income level. MCCA made some of the low-income
pregnant women and infants mandatory Medicaid eligibility groups (those
at or below 75 percent of the poverty level and then, a year later, 100
percent of the poverty level) and amended the eligibility criteria for
others.
The Family Support Act of 1988 (FSA), Public Law 100-485, enacted
on October 13, 1988, made several technical corrections to the Medicaid
provisions of the Social Security Act. These corrections related to the
description of the eligibility groups of low-income pregnant women,
infants, and children.
The Omnibus Budget Reconciliation Act of 1989 (OBRA '89), Public
Law 101-239, enacted on December 19, 1989, changed the mandatory
eligibility groups of low-income pregnant women and infants by
increasing the income criteria to at or below 133 percent (instead of
at or below 100 percent) of the Federal poverty income level; and added
a new mandatory group of low-income children who are age one but have
not attained age 6 who have incomes at or below 133 percent of the
Federal poverty level. OBRA '89 mandated a percentage greater than 133
percent of the Federal poverty level for the pregnant women and infants
groups if the State had such a greater percentage in its State plan
(whether approved or not) as of the date of enactment of OBRA '89, or
established under State authorizing legislation or State appropriations
as of December 19, 1989, when it covered these pregnant women or
infants, or both, as optional categorically needy groups. Low-income
children who are age 6 but have not attained age 7, or at State option,
age 8 with incomes at or below 100 percent of the Federal poverty level
remained an optional categorically needy group. These provisions were
effective on April 1, 1990.
The Omnibus Budget Reconciliation Act of 1990 (OBRA '90), Public
Law 101-508, enacted on November 5, 1990, made additional changes to
both the mandatory and optional groups of pregnant women, infants, and
children. OBRA '90 created a new group of mandatory categorically needy
children who are at least age 6 but have not yet reached age 19. These
are children born after September 30, 1983 with family income at or
below 100 percent of the Federal poverty level. OBRA '90 made
corresponding changes to the mandatory eligibility group of qualified
children to include children born after September 30, 1983 who have not
attained age 19 and to allow States to use an earlier date of birth in
order to include older children sooner than is mandated.
In addition, OBRA '90 mandated that a State provide continuous
eligibility to pregnant women throughout the pregnancy and postpartum
period without regard to changes in income. (This had been a State
option.) OBRA '90 also changed the requirement for newborns who are
deemed to be eligible as a result of their mothers' eligibility status.
Previously, a newborn was considered eligible at birth if the newborn's
mother was eligible for and receiving Medicaid. The newborn could
remain eligible for as long as a year if the mother remained eligible
and the infant was a member of the mother's household. With the OBRA
'90 change, a newborn may still remain eligible for as long as a year
if the mother loses eligibility but would remain eligible if she were
pregnant.
Finally, OBRA '90 made several changes to presumptive eligibility
for pregnant women by eliminating the existing time limit on the
presumptive period and allowing a pregnant woman to remain
presumptively eligible until the State makes a determination on her
regular application for Medicaid or, if she does not file a regular
application, the last day of the month following the month in which she
was determined presumptively eligible. OBRA '90 also provided that the
application given to a presumptively eligible pregnant woman could be
the application used by the State to determine the regular Medicaid
eligibility of low-income pregnant women under section 1902(1)(1)(A).
This document proposes to incorporate provisions of OBRA '86, '87,
'89, and '90, the Homeless Eligibility Clarification Act, MCCA, and FSA
in the Medicaid regulations, as outlined and discussed in the following
section of this document. (Additional related provisions in these laws
are being addressed in separate rulemaking documents.)

II. Discussion of Legislative Provisions and Proposed Amendments to
Regulations

A. Low-Income Pregnant Women, Infants, and Children

Section 9401 of OBRA '86 amended the Social Security Act by adding
new sections 1902(a)(10)(A)(ii)(IX) and 1902(1) to establish optional
categorically needy groups of pregnant women and women during the 60-
day period beginning on the last day of pregnancy, infants, and
children up to age 5 whose income does not exceed a State-established
standard that is a specified percentage of the Federal nonfarm poverty
income guidelines. Under OBRA '86, a State could establish this income
standard at a level at or below 100 percent of the Federal poverty
guidelines. A State had to cover both pregnant women and infants (it
could not cover either group separately) and it had to cover both of
these groups in order to cover children.
OBRA '86 also amended section 1902(e) to provide that States that
have chosen to cover infants and children under section 1902(1) must
continue to cover those infants and children under certain
circumstances. Under section 1902(e)(7), if the infants and children
are receiving covered inpatient services at the time they reach the age
limits under the State plan, the State must cover them until the end of
their inpatient stay if they remain otherwise eligible. Also, OBRA '86
specifically exempted the group of individuals described in section
1902(a)(10)(A)(ii)(IX) from the limits on family income which affect a
State's Federal financial participation (FFP) under section 1903(f)(4)
of the Act.
Later legislation changed the age limit for children and the
percentage of the poverty level for the income standard. Specifically,
section 4101(c) of OBRA '87 raised the maximum age for low-income
children from age 5 up to age 8. Section 4101(a)(1) of OBRA '87
increased the percentage of the poverty guidelines at which the income
standard could be set to 185 percent for pregnant women and infants
under age 1, effective July 1, 1988. However, for children age 1 up to
age 8, section 4101 retained the percentage level at no more than 100
percent of the Federal poverty guidelines (or, if the State had chosen
to cover pregnant women and infants with a percentage of income below
100 percent, the percentage for children had to equal the percentage
used for the pregnant women and infants). Section 4118 of OBRA '87 also
removed the reference to ``nonfarm'' in the description of the Federal
poverty income guidelines to be used. In addition, section 4101(d) of
OBRA '87 amended section 1916 of the Act to allow States to charge a
premium to optional groups of low-income pregnant women and infants who
have family incomes above a specified level.
Section 302 of MCCA added section 1902(a)(10)(A)(i)(IV) to the
Social Security Act, which required States to provide mandatory
eligibility to groups of pregnant women and infants up to one year of
age with incomes at or below 75 percent of the Federal poverty income
guidelines, effective July 1, 1989. Those States that, as of enactment
of MCCA, offered eligibility to pregnant women and infants with incomes
at 100 percent of the poverty level (or at some lower income threshold
between 75 percent and 100 percent) were required to continue
eligibility at this level. A State had to provide an income level that
reflected at least the percentage of poverty specified in an amendment
to its State plan to cover these groups (whether the amendment had been
approved or not). Even if there was no percentage specified in the
State plan, the maintenance of eligibility requirement also applied to
percentages established under a State's authorizing legislation or
provided for under the State's appropriations in order to provide
Medicaid to these individuals before July 1, 1989. MCCA also provided
that, effective July 1, 1990, mandatory eligibility was required for
groups of pregnant women and infants under age one with incomes at or
below 100 percent of the Federal poverty income guidelines. In addition
to creating mandatory groups of pregnant women and infants, the MCCA
eliminated the requirement in section 1902(1)(4) that States cover both
pregnant women and infants in order to cover either group and to cover
both groups in order to cover children. We have interpreted this MCCA
amendment to allow States to cover optional groups of pregnant women
and infants separately and with different income levels. Coverage of
groups of pregnant women or infants, or both, with incomes above the
mandatory percentages (75 percent, effective July 1, 1989, and 100
percent, effective July 1, 1990) but at or below 185 percent of the
poverty level and children age 1 year to age 8 years with incomes at or
below 100 percent of the poverty level remained optional under the MCCA
provisions.
The MCCA also amended section 1902(e)(7) to provide continued
coverage to all of the revised groups of children under section 1902(1)
until the end of their inpatient stays. It also amended section
1903(f)(4) to exempt from the FFP income limits all of the redefined
mandatory and optional groups in section 1902(1) and specifically made
the use of less restrictive income and resource methodologies under
section 1902(r)(2) apply to several groups, including the mandatory
groups of women and infants in section 1902(a)(10)(A)(i)(IV), and to
all optional categorically needy groups, including the optional group
of women, infants, and children in section 1902(a)(10)(A)(ii)(IX).
The changes made by section 302 of MCCA applied to payments for
medical assistance for calendar quarters beginning on or after July 1,
1989, with respect to eligibility on or after that date. The effective
date applied whether or not we had promulgated final rules to interpret
the provisions by that date. However, a State could, under certain
circumstances, request a delayed implementation date in order to enact
State legislation.
Section 6401 of OBRA '89 revised the provisions under MCCA by
further amending the eligibility groups of low-income pregnant women,
infants, and children up to age 8. First, section 6401 changed the
income criteria for the mandatory eligibility groups of low-income
pregnant women and infants up to age 1 under section
1902(a)(10)(A)(i)(IV) of the Act by increasing the income level
criteria from no less than 100 percent of the Federal poverty income
level to no less than 133 percent of the Federal poverty income level,
effective April 1, 1990. The law mandates that a State use a percentage
greater than 133 percent (but no greater than 185 percent) of the
Federal poverty income level if the State had such a higher percentage
for optional categorically needy groups of pregnant women and infants
as of the date of enactment of OBRA '89 in its State plan (whether
approved or not) or established by State authorizing legislation or
State appropriations. Second, OBRA '89 established under section
1902(a)(10)(A)(i)(VI) of the Act a new mandatory eligibility group of
low-income children age 1 up to age 6. The State was required to
establish an income level for this group that equaled 133 percent of
the Federal poverty income level. States could continue to cover as
optional categorically needy other low-income children age 6 up to age
7 or, at State option, up to age 8 who are born after September 30,
1983. The income level for this group of children age 6 up to age 8
would continue to be established at a level not to exceed 100 percent
of the Federal poverty income level.
Section 6401 of OBRA '89 also made conforming changes to section
1902(a)(10)(A)(ii)(IX) (excluding the mandatory group of children in
section 1902(a)(10)(A)(i)(VI) from the group of optional categorically
needy), other parts of section 1902(1) (changed the descriptions of
low-income groups of pregnant women, infants, and children), section
1902(e)(7) (added the new group of mandatory children to the
continuation of inpatient hospital services for infants and children
who have reached the maximum age for eligibility), section 1902(r)(2)
(made the use of less restrictive income and resource methodologies
than cash assistance methodologies apply to the new group of mandatory
children), and section 1903(f)(4) (exempted the new group of mandatory
children from the limitations on Medicaid payments). In addition,
section 6411(i)(3) of OBRA '89 amended section 1925 (a)(3)(C) and
(b)(3)(C)(i) to require States to determine if children who would cease
to receive extended Medicaid under section 1925 may be eligible for
Medicaid under sections 1902(a)(10)(A)(i) (IV) or (VI) or
1902(a)(10)(A)(ii)(IX) before terminating eligibility based on section
1925.
The changes made by section 6401 applied to payments for medical
assistance for calendar quarters beginning on or after April 1, 1990,
with respect to eligibility on or after that date. The effective date
applied whether or not we had promulgated final rules to interpret the
provisions by that date. However, a State could, under certain
circumstances, request a delayed implementation date in order to enact
State legislation. Section 6411(i)(3) was effective as if enacted as
part of the Family Support Act of 1988.
Section 4601 of OBRA '90 established a new mandatory group of low-
income children under section 1902(a)(10)(A)(i)(VII) of the Act. This
group described in 1902(l)(1)(D) of the Act includes children born
after September 30, 1983 who have attained age 6 but have not attained
age 19. The State must establish an income standard for this group of
children which equals 100 percent of the Federal poverty level. Section
4601 made conforming changes to section 1905(n)(2) of the Act which
defines qualified children. Children born after September 30, 1983 who
have not attained age 19 are now included in the mandatory group of
qualified children. In addition, States have the option to choose an
earlier date of birth if they wish to phase in this group more quickly.
Section 4601 made additional conforming changes to (1) section
1902(r)(2) to allow States to use less restrictive income and resource
methodologies than those used under the cash assistance programs in
determining financial eligibility of the new group under section
1902(a)(10)(A)(i)(VII); (2) section 1903(f)(4) of the Act to exempt the
new group of mandatory children from the limitations on Medicaid
payments; and (3) section 1925 of the Act to require that States
determine whether a child is eligible under this new mandatory group
before terminating eligibility based on section 1925.
The changes made by section 4601 applied to payments for medical
assistance for calendar quarters beginning on or after July 1, 1991.
The effective date applied whether or not we had promulgated final
rules to interpret the provisions by that date. However, a State could,
under certain circumstances, request a delayed implementation date in
order to enact State legislation.
Section 1902(l) of the Act, as added by section 9401 of OBRA '86
and amended by section 4101 of OBRA '87, section 302 of MCCA, section
608(d)(15) of FSA, section 6401 of OBRA '89, and section 4601 of OBRA
'90, specifies the eligibility conditions for the mandatory groups of
pregnant women and infants under section 1902(a)(10)(A)(i)(IV), the
mandatory group of children age 1 up to age 6 under section
1902(a)(10)(A)(i)(VI), the mandatory group of children age 6 up to age
19 under section 1902 (a)(10)(A)(i)(VII), and the optional
categorically needy groups of pregnant women and infants under section
1902(a)(10)(A)(ii)(IX).
1. Income Standard
Eligibility of individuals who fall into one of the mandatory and
optional groups of low-income pregnant women, infants, and children is
based on these individuals meeting State-established income standards.
States must establish their income standards at a level that does not
exceed the specified percentage of the Federal poverty income
guidelines for a family equal to the size of the family, including the
woman, infant, or child. Because the official poverty guidelines are
revised annually to adjust for inflation, States will be automatically
increasing the income standards established to keep pace with inflation
as a result of the changes in the poverty guidelines. (HHS determines
official Federal poverty income guidelines and issues them in the
Federal Register annually, usually during the month of February. See,
for example, 58 FR 8287, February 12, 1993.) For optional groups of
pregnant women and infants, the agency may establish separate income
standards or use a single standard.
Under section 1902(l)(3)(E), as added by OBRA '86 and amended by
section 4101(e)(3) of OBRA '87, in determining whether the income of
members of the low-income groups of pregnant women, infants, and
children meets the established income standards, States must use the
same methodologies as applied in determining financial eligibility for
AFDC, or for title IV-E as appropriate, except to the extent that the
methodologies are inconsistent with section 1902(a)(17)(D) of the Act.
Section 4101(e)(3) of OBRA '87 clarified that, in determining family
income, States must not use any AFDC methodologies (such as stepparent,
grandparent, or sibling deeming) that are inconsistent with the deeming
policies specific to Medicaid under section 1902(a)(17)(D) of the Act
(H. Rep. 391, 100th Cong., 1st Sess. 446 (1987)). Section
1902(a)(17)(D) of the Act provides, in part, that in determining
financial responsibility of relatives, only the income of spouses may
be considered as available to spouses, and only the income of parents
may be considered as available to a child until the child is 21, unless
the child is blind or disabled. The methodologies include, but are not
limited to, those used for disregarding income. States also are not
permitted to allow individuals whose eligibility is determined based on
membership in these low-income groups to spend down; that is, the State
may not deduct the costs of incurred medical expenses or any other type
of remedial care from income, in determining whether an individual's
income meets the income standard established by the State.
The requirements for determining financial eligibility of low-
income pregnant women, infants, and children were also affected by
section 303(e) of MCCA. Section 303(e) established a new section
1902(r)(2) to permit States, at their option, to use less restrictive
income and resource methodologies than those used under the cash
assistance programs (e.g., AFDC or SSI), in determining financial
eligibility for a number of groups, including the mandatory groups of
pregnant women and infants in section 1902(a)(10)(A)(i)(IV) and the
optional groups of pregnant women, infants, and children in section
1902(a)(10)(A)(ii)(IX). Section 6401 of OBRA '89 specifically made
section 1902(r)(2) applicable to the mandatory group of low-income
children age 1 up to age 6 in section 1902(a)(10)(A)(i)(VI). Section
4601 of OBRA '90 specifically made section 1902(r)(2) applicable to the
mandatory group of low-income children age 6 up to age 19 in section
1902(a)(10)(A)(i)(VII).
We believe that the specific preclusion of a spenddown in section
1902(l) was not modified by section 1902(r)(2). However, States may use
other more liberal methodologies to the extent that they are consistent
with section 1902(r)(2).
Section 1902(l)(1) of the Act specifically states that the income
standards established by the State must correlate to a family size that
includes the woman, infant, or child. The statute does not specifically
address whether the pregnant woman's unborn child must be counted in
determining family size. However, the legislative history supports
counting the pregnant woman as if her child were born and living with
her. The language of the 1986 House Committee Report that addressed the
section 1902(l)(1) provision states that ``in determining a pregnant
woman's family income level, the Committee intends that a State would
treat the woman as if her child were born and living with her at the
time she applied for assistance. Thus, a single woman would be treated
as a family of two, a pregnant woman living with a spouse or child as a
family of three, and so forth * * *'' (H. Rep. No. 727, 99th Cong., 2d
Sess. 100 (1986)). The House bill that accompanied this report states
that the family size should be equal to ``the family including the
woman or child.'' Even though the language is not specific in section
1902(l)(1), we believe the legislative history reveals that Congress
intended that the unborn child be included under this provision.
We proposed to specify in these proposed regulations that the
family size includes the ``unborn child and other members of the
Medicaid budgetary unit.'' Policies relating to the Medicaid budgetary
unit were addressed in a final rule with comment period published in
the Federal Register on January 19, 1993 (58 FR 4908), and are,
therefore, not being addressed in this preamble. The effective date of
the January 1993 rule has been delayed (58 FR 9120, February 19, 1993;
58 FR 44457, August 23, 1993; and 59 FR 8138, February 18, 1994). We
will conform the policies on the Medicaid budgetary unit contained in
these proposed regulations with whatever policy is in effect at the
time that we issue these proposed regulations as final.
2. Resource Standard
The statute allows States, at their option, to apply a resource
standard to the low-income eligibility groups of pregnant women,
infants, and children under section 1902(1) of the Act. Section 9401 of
OBRA '86 establishes a floor for the resource standard that is a
specific and objective standard. If a State chooses to apply a resource
standard, the standard may be no more restrictive than that applied
under SSI for pregnant women, and than that applied under AFDC, for
infants and children. (If Guam, Puerto Rico, and the Virgin Islands
elect to apply a resource standard, that standard for pregnant women
may be no more restrictive than that applied under SSI under section
1613 of the Act. This is because the reference to the resource standard
for pregnant women in the statute is to the standard that is applied
under title XVI (that is, SSI) and not to the standard that is applied
under the State plan program under title XVI.)
The amendments regarding the different treatment of income and
resources for the mandatory and optional groups of low-income pregnant
women, infants, and children do not require or permit this different
treatment to be applied to other Medicaid eligibility groups under the
comparability provisions of section 1902(a)(17) of the Act.
3. Applicability for States With Section 1115 Waivers and for
Territories
Section 302(c) of MCCA struck the original section 1902(1)(4)(A) of
the Act and section 302(d) of MCCA added a new section 1902(1)(4)(A).
Under the new section 1902(1)(4)(A), as amended by section 6401 of OBRA
'89 and section 4601 of OBRA '90, States that are providing Medicaid
under a waiver granted under section 1115 of the Act must provide
mandatory categorically needy eligibility to pregnant women and infants
under age 1 with incomes at or below 133 percent of the poverty level
under section 1902(a)(10)(A)(i)(IV), children age 1 but under age 6
with incomes at or below 133 percent of the poverty level under section
1902(a)(10)(A)(i)(VI) and children who have attained age 6 but are
under age 19 with incomes at or below 100 percent of the poverty level
under section 1902(a)(10)(A)(i)(VII) in the same manner as other
States. States operating under a waiver granted under section 1115 of
the Act must (as all other States must) cover the mandatory groups at
higher levels if they have already chosen to use those higher levels.
However, Guam, Puerto Rico, the Virgin Islands, American Samoa, and the
Northern Mariana Islands retain the option of providing Medicaid to the
otherwise mandatory groups of low-income pregnant women, infants, and
children. The Territories may establish separate or identical income
standards for pregnant women and infants at any percentage of the
poverty level at or below 185 percent. However, if a Territory chooses
to cover children from age 1 up to age 6, it must cover all such
children with incomes at or below 133 percent of the poverty level.
Also, if a Territory chooses to cover children born after September 30,
1983 who have attained age 6 but are under age 19, it must cover all
such children with incomes at or below 100 percent of the poverty
level.
4. Comparability of Services
Section 1902(a)(10) of the Act, as amended by section 9401 of OBRA
'86, section 4101 of OBRA '87, and section 302(a)(1)(C) of MCCA,
contains an exemption to the comparability of services requirements at
section 1902(a)(10)(B) for services furnished to pregnant women
described in section 1902(l)(1)(A) of the Act who are eligible as
mandatory or optional categorically needy under the provisions of
sections 1902(a)(10)(A)(i)(IV) and 1902(a)(10)(A)(ii)(IX). The amended
provision (under clause (VII) following what is currently paragraph (F)
of section 1902(a)(10)) provides that the services that are available
to pregnant women under the section 1902(l) low-income eligibility
groups are limited to services relating to pregnancy (including
prenatal, delivery, family planning, and postpartum services) and to
other conditions that may complicate pregnancy. (Section 4101(e)(1) of
OBRA '87 expanded services related to pregnancy to include ``family
planning.'')
The Consolidated Omnibus Budget Reconciliation Act (COBRA), Public
Law 99-272, enacted an earlier comparability of services requirement
for all pregnant women covered under the State plan. This requirement
appears under clause (V) following what is currently paragraph (F) of
section 1902(a)(10). This provision states that if a State makes
available ``services relating to pregnancy (including prenatal,
delivery, and postpartum services) or to any other condition which may
complicate pregnancy,'' the State is not required to provide these
services to any other individual, except pregnant women, covered under
the plan. The State must provide its pregnancy-related services and
services for any other condition that may complicate pregnancy, in the
same amount, duration, and scope, to all pregnant women covered under
the State plan, including pregnant women whose pregnancy is not the
basis for their Medicaid eligibility (e.g., those receiving AFDC or
SSI). (See Secs. 440.210 and 440.220).
We issued a separate document to interpret this and other
provisions of COBRA. In it, we left to the States the responsibility
for defining these services listed in the statute within the bounds of
broad policy guidelines (54 FR 7798, February 23, 1989 and 55 FR 48601,
November 21, 1990). We believe that the same principles apply for the
pregnancy-related services and services which may complicate pregnancy
which are specific to the section 1902(1) group of women. (See
Sec. 440.250(q).)
Generally, the State plan includes services identified in section
1905(a) (1) through (24) of the Act (mandatory and optional services
that are considered as medical assistance to Medicaid recipients). Many
of these services can qualify as appropriate components of the areas of
care required by the statute; that is, prenatal services, delivery
services, postpartum services, and family planning services, and
services related to conditions that may complicate pregnancy. For
example, physicians' services in section 1905(a)(5) can qualify as
prenatal services, since examinations by a physician are part of
prenatal care, and as delivery services, since a physician may also
deliver the woman's baby. Therefore, a State plan must provide pregnant
women with what the State has decided are enough services identified in
section 1905(a) to sufficiently cover each of the required areas of
care. In addition, a State, at its option, may provide services under
section 1905(a) of the Act (for example, rehabilitative services or
nutritional supplements) only to pregnant women and not to any other
categorically needy eligible Medicaid recipient, as long as such
services qualify as either services related to pregnancy or to other
conditions that may complicate pregnancy. A State would not be required
to specifically identify which services it provides to pregnant women.
However, the State would be required to specify in its plan that it
covers each of the required areas of care.
We interpret ``pregnancy-related services'' to mean those services
which are needed because the woman is or was pregnant, either because
they are necessary for the health of the pregnant woman or fetus or
because the services became necessary as a result of the woman having
been pregnant. These include, but are not limited to, prenatal care,
delivery, family planning, and postpartum services.
On the other hand, ``services relating to any other condition which
may complicate pregnancy'' are not ``pregnancy related'' because they
do not arise because of the pregnancy. These services include those for
diagnosis or treatment of illnesses or medical conditions which might
threaten the carrying of the fetus to full term or the safe delivery of
the fetus. Because these services are for conditions ``which may
complicate the pregnancy,'' the services can be provided only while the
woman is pregnant.
It is important to note that, unlike the other eligibility groups
of pregnant women who are entitled to at least the full range of
services available under a particular State's Medicaid plan to
recipients of the same eligibility group, these low-income
categorically needy pregnant women are only entitled to pregnancy-
related services (including family planning services) and services for
the treatment of conditions that may complicate pregnancy.
Infants and children in these eligibility groups are eligible for
all appropriate Medicaid services included in the approved State plan.
5. Premiums for Pregnant Women and Infants
Section 4101(d) of OBRA '87 redesignated section 1916(c) as 1916(d)
and created a new section 1916(c) which permits States to impose a
monthly premium on optional categorically needy low-income pregnant
women and infants eligible under section 1902(a)(10)(A)(ii)(IX) of the
Act. States may impose the premium on these individuals if their income
equals or exceeds 150 percent, but is not more than 185 percent, of the
poverty level for a family of the size involved. The amount of the
premium imposed may not exceed 10 percent of the amount by which the
family's income exceeds 150 percent of the poverty income guidelines.
Costs for the care of a dependent child must be deducted in determining
the family's income under this provision. States are prohibited from
requiring the prepayment of the premium. Eligibility may not be
terminated for failure to pay this premium unless the premium has been
unpaid for at least 60 days. In cases of undue hardship, as defined by
the State, the State may waive the payment of the premium. In addition,
a State may use State or local funds from other programs to pay the
premium. Under section 1916(c)(4) of the Act, if these funds are used,
they may not be counted as income to the individual for whom payment is
made.
Although Congress did not specifically address the meaning of the
term ``costs of care for a dependent child'' (the Conference Report
refers to these costs as ``child care'' expenses (H. Rep. No. 495,
100th Cong., 1st Sess. 731 (1987)), we believe that there was no
Congressional intent to use a broader concept of child care costs for
this provision than that traditionally used under the AFDC program.
Therefore, we propose to define child care costs for purposes of this
provision as costs related to the care of a child necessary to enable a
member of the family whose income was included in the eligibility
determination to work or participate in training.
6. Payment Levels Under AFDC
OBRA '86 added section 1902(1)(4)(A) to the Act, which provided
that a State plan may not elect to cover the optional groups of low-
income pregnant women, infants, and children up to age 5 described in
section 1902(a)(10)(A)(ii)(IX) unless the State had in effect AFDC
payment levels that were not less than those in effect on April 17,
1986. This provision became effective on April 1, 1987. OBRA '87
amended this provision, changing the date upon which AFDC levels would
be measured from April 1 to July 1, 1987. The OBRA '87 amendment was
effective on December 22, 1987.
Section 302(c) of MCCA eliminated section 1902(1)(4), but placed a
comparable provision in a new section 1903(i)(9). This provision states
that payment will not be made to a State with respect to amounts for
medical assistance for section 1902(a)(10)(A)(ii)(IX) optional groups
if the State has in effect AFDC payment levels that are less than those
in effect on July 1, 1987. In addition, section 302(c) established a
new, more general maintenance of effort provision in section
1902(c)(1), which states that the Secretary will not approve any
Medicaid State plan if the State has in effect AFDC payment levels
which are less than those in effect on May 1, 1988. Because section
1116(b) of the Act distinguishes between plans and plan amendments, we
interpret this provision literally as prohibiting approval of new State
plans but not prohibiting approval of amendments to a State plan. The
MCCA provisions were effective on July 1, 1989.
There have been some questions raised about how we would determine
if the AFDC payment level has been maintained by a State as specified
in the law. ``Payment level'' is not an existing term used under AFDC.
However, for the purposes of sections 1902(c) and 1903(i)(9), payment
levels are the amounts of the payments for basic needs (according to
family size) which would be made to families with no income under the
approved State AFDC plan. Special needs are not included, as we have
concluded, based on a review of statutory history, that Congress
intended to include only basic needs. Thus, we propose to find a State
has not reduced its payment level if it has not reduced the amount of
the AFDC payment for basic needs made to a family with no other income.
7. Application for AFDC
Section 4104(e) of OBRA '87 amended section 1902(1)(4) of the Act
by adding a new paragraph (C) to specify that a State Medicaid plan may
not provide that any of the low-income pregnant women, infants, and
children under section 1902(1) must apply for AFDC as a condition of
applying for or receiving Medicaid. Section 302(c) of MCCA made further
amendments by removing section 1902(1)(4) and adding a comparable
provision to section 1902(c)(2) of the Act. Section 1902(c)(2) provides
that the Secretary must not approve any State plan for Medicaid if the
State requires low-income pregnant women, infants, and children under
section 1902(1)(1) to apply for AFDC benefits as a condition of
applying for or receiving Medicaid.
8. Need for Regulations
The statutory amendments discussed above are effective without
regard to whether final regulations to carry them out have been
published by the applicable effective dates. However, changes in the
Medicaid regulations are necessary to bring the regulations up to date
with current statutory requirements.
9. Proposed Regulations
We propose to amend the Medicaid regulations under 42 CFR parts
435, 436, 440, and 447 as follows:
Add a new Sec. 435.118 to specify the mandatory
eligibility groups of pregnant women, infants under age 1, children age
1 up to age 6 with incomes at or below 133 percent of the Federal
poverty income guidelines, and children age 6 up to age 19 with incomes
at or below 100 percent of the Federal poverty income guidelines.
Add Sec. 435.228 to specify the optional eligibility
groups of low-income pregnant women and infants (and low-income
children in American Samoa and the Northern Mariana Islands) and
Sec. 436.226 to specify the optional eligibility groups of low-income
pregnant women, infants, and children and the conditions under which
they may establish eligibility.
Add Secs. 435.612 and 436.612 to incorporate the
requirements for a State to establish income standards, and at State
option, resource standards for these low-income groups and for applying
methodologies to determine financial eligibility.
Revise Secs. 435.608 and 436.608 to specify that the State
agency must not require low-income pregnant women, infants, and
children to apply for AFDC benefits as a condition of applying for or
receiving Medicaid.
Add a new Sec. 431.60 to specify the maintenance of
specified AFDC payment levels as a condition of State plan approval.
Revise Secs. 435.1002 and 436.1002 to specify that FFP is not available
for expenditures for Medicaid for optional groups of low-income
pregnant women and infants covered under section 1902(a)(10)(A)(ii)(IX)
if the State has in effect AFDC payment levels that are less than the
payment levels in effect under the plan on July 1, 1987.
Revise Sec. 440.250 on limits on comparability of services
to provide that services to pregnant women in the mandatory and
optional categorically needy low-income eligibility groups are limited
to services related to pregnancy (including prenatal, delivery, family
planning, and postpartum services) and to other conditions which may
complicate pregnancy that are included under the approved State plan.
Add a new Sec. 447.60 to specify the requirements and
conditions for imposing a monthly premium on the optional eligibility
groups of low-income pregnant women and infants with family incomes
between 150 and 185 percent of the poverty level and make conforming
changes to Secs. 447.50 and 447.51.
Section 303(e) of MCCA added section 1902(r)(2) of the Act, which
allows States to elect to use less restrictive income and resource
methodologies than the cash assistance methodologies for a number of
eligibility groups, including the mandatory and optional categorically
needy pregnant women, infants, and children in section 1902(l). On
January 19, 1993, we published in the Federal Register (58 FR 4908)
regulations at Secs. 435.601, 435.602, 436.601, and 436.602 to
interpret section 1902(r)(2). The eligibility groups of low-income
pregnant women, infants, and children described in this preamble are
subject to the provisions of Secs. 435.601, 435.602, 436.601, and
436.602.

[Note: On February 19, 1993, August 23, 1993, and February 18,
1994, we published notices in the Federal Register (58 FR 9120; 58
FR 44457; and 59 FR 8138) to delay the effective dates for the
January 19, 1993 final rule. If, at the time we issue the final rule
for these proposed regulations, the January 19, 1993 final
regulations have been revised or are not in effect, we will make
appropriate revisions.]

We propose to add new Secs. 435.612 and 436.612 to specify the
requirements for establishing the income and resource standards for
these groups and to cross-refer to Secs. 435.601, 435.602, 436.601, and
436.602 for the methodologies to be used for determining financial
eligibility. The group of low-income aged and disabled individuals
discussed in section I.F. of this document also is subject to
Secs. 435.601, 435.602, 436.601 and 436.602.

B. Continuous Eligibility of Pregnant Women

Under section 1902(e)(6) of the Act, as added by section 9401(d) of
OBRA '86 and amended by section 4101(e)(2) of OBRA '87, section 302(e)
of MCCA, and section 4603 of OBRA '90, States must treat any pregnant
women who are eligible under section 1902(a)(10) as continuously
eligible throughout the pregnancy and the postpartum period without
regard to changes in income.
Section 9401(d) of OBRA '86 added section 1902(e)(6) to the Act.
Section 1902(e)(6) allowed States to treat any women who were described
in sections 1902(a)(10)(A)(ii)(IX) and 1902(1) as continuously eligible
during the pregnancy and through a 60-day postpartum period, without
regard to any changes in family income. Women covered under this
provision consisted of two groups: low-income pregnant women and low-
income women during the 60-day period after the pregnancy ends.
Therefore, this provision covered women who applied for and became
Medicaid eligible under section 1902(l) either before or after giving
birth. Section 4101(e)(2) of OBRA '87 redefined the section 1902(e)(6)
postpartum period to specify that the period of continued coverage
extends for 60 days after the pregnancy ends, beginning on the last day
of pregnancy, plus any remaining days in the month in which the 60th
day occurs. The remaining days in the month provision was added by OBRA
'87 for Federal matching payment and quality control purposes because,
in some States, Medicaid eligibility is not terminated at any time
other than the end of the month.
Section 302(e) of MCCA amended section 1902(e)(6) of the Act to
provide States with the option of treating any pregnant woman who has
established eligibility under any eligibility group listed in section
1902(a)(10) and who, because of a change in income, would cease to be
eligible, as a mandatory eligible low-income pregnant woman throughout
the pregnancy and for the specified postpartum period, without regard
to changes in family income. Section 1902(e)(6) now refers to
``pregnant women'' rather than ``women described in section
1902(l)(1).'' As a result, we believe it still covers the pregnant
women described in section 1902(l)(1)(A) but no longer includes those
women in section 1902(l)(1)(A) who first become eligible only in the
60-day postpartum period after they have ceased to be ``pregnant
women.''
Section 4603(a)(2) of OBRA '90 further amended section 1902(e)(6)
to require States to provide continuous coverage to any pregnant woman
eligible under section 1902(a)(10) of the Act who would otherwise lose
her eligibility due to a change in income. The pregnant woman must be
``deemed to continue to be'' a mandatory categorically needy individual
described under sections 1902(a)(10)(A)(i)(IV) and 1902(1)(1)(A)
through the end of the postpartum period. The OBRA '90 amendment also
stated that this mandatory coverage would not apply in the case of a
woman who has received ambulatory prenatal care under section 1920 of
the Act during a presumptive eligibility period and is then determined
to be ineligible for regular Medicaid.
Although section 1902(e)(6) purports to cover all pregnant women
who, because of a change in family income, would not otherwise continue
to be eligible for Medicaid, we believe that it does not automatically
cover all pregnant women who must meet a spenddown. Most pregnant women
seeking to meet a spenddown would be attempting to establish
eligibility as medically needy. Section 1902(e)(6) now requires that a
State deem a pregnant woman (who has established eligibility under any
eligibility group) to continue to be a pregnant woman under sections
1902(a)(10)(A)(i)(IV) and 1902(1)(1)(A) if that woman would otherwise
cease to be eligible due to a change in income.
A medically needy woman can establish her eligibility during a
given budget period by spending down her excess income. However, if she
has the excess income in the following budget period and is ineligible
because she cannot spend it down, we do not believe that her
ineligibility has resulted from a ``change'' in income. In fact, her
income is unchanged for eligibility purposes if it remains in excess of
the medically needy income level by the same amount as in the previous
budget period; she has simply not been able to spend down to the
medically needy income level. We believe that under the statute, a
medically needy pregnant woman whose family income does not change and
who cannot meet her spenddown does not qualify as having the ``change''
in income contemplated by section 1902(e)(6).
We are uncertain how to apply section 1902(e)(6) in the context of
pregnant women who have a spenddown, and whose family incomes increase,
causing this spenddown amount to increase. We propose to cover under
this provision any pregnant woman who was eligible (either as
categorically needy, medically needy without a spenddown, or medically
needy after meeting a spenddown) at any time during her pregnancy, who
then experiences a change in family income which either would cause her
to lose categorically needy Medicaid, medically needy Medicaid without
a spenddown, or to lose eligibility (be unable to meet the increased
spenddown although she would have met the earlier spenddown) by virtue
of an increased spenddown amount.
We would interpret section 1902(e)(6) so that it will not relieve
pregnant women who qualify under section 1902(e)(6) of their obligation
to satisfy their original spenddown amount in each budget period while
in section 1902(e)(6) status.
If a pregnant woman who has in the previous budget period met a
spenddown has an increase in income and qualifies under section
1902(e)(6), she must be ``deemed to continue to be'' a pregnant woman
under sections 1902(a)(10)(A)(i)(IV) and 1902(1)(1)(A). These
provisions describe categorically needy eligibility groups with respect
to whom the limited Medicaid benefit is available. We believe that the
phrase ``deemed to continue to be'' is ambiguous. The phrase can mean
that the woman is to be regarded for all purposes as if she were
actually categorically needy, or only that she is to be considered as
categorically needy for the purpose of receiving the restricted service
package that applies to pregnant women described in section 1902(1)
without regard to the change in her family's income. If we were to
regard the woman as though she were actually categorically needy, she
would no longer have to meet any spenddown, and any subsequent changes
of income would not affect her eligibility. This would place the
medically needy pregnant woman whose income has increased in a better
position than any other medically needy pregnant woman with a spenddown
who has had no increase in income.
In order to avoid the anomalous result of only pregnant women with
higher incomes being relieved of their total spenddown obligations, we
propose not to interpret section 1902(e)(6) as requiring that a
medically needy woman be considered as though she were categorically
needy for all purposes. We propose instead to interpret the phrase
``deemed to continue to be'' in section 1902(e)(6) to require only that
a woman who meets her original spenddown amount, but cannot meet the
increased amount, be deemed to be eligible for the limited service
package provided to the section 1902(1) pregnant women. The woman can
maintain this deemed status without having to pay any increased
spenddown amounts which result from increases in family income. She
will, however, be required to continue to meet her original spenddown
while in section 1902(e)(6) status.
We propose to revise redesignated Sec. 435.918 relating to
redetermination of eligibility, to provide that the agency must
consider a pregnant woman eligible under any Medicaid eligibility group
as an individual who is eligible to receive the services available to
the mandatory categorically needy low-income group throughout the
pregnancy and for the specific postpartum period after the pregnancy
ends without regard to changes in the family income.

C. Qualified Children

Section 4601(a)(2) of OBRA '90 amended the definition of a
qualified child in section 1905(n)(2) of the Act, effective July 1,
1991. Under section 1902(a)(10)(A)(i)(III) of the Act, a State must
provide Medicaid coverage to the mandatory group of qualified children.
Effective July 1, 1991, under the new definition of qualified child
added by OBRA '90, a State must provide Medicaid coverage to children
under the age of 19 who were born after September 30, 1983, and who
meet the income and resource requirements of the State plan under title
IV-A. The option in section 1905(n)(2) for a State to include as
qualified children those children born after an earlier date than
September 30, 1983 (as chosen by the State) was retained. As a result,
effective July 1, 1991, States have the option to provide Medicaid
coverage to children under the age of 19 who were born after any date
prior to September 30, 1983 (as chosen by the State) who meet the
income and resource requirements of title IV-A.
We propose to amend Sec. 435.116(c) to raise the maximum age of a
qualified child to under age 19.

D. Deemed Newborn Eligibility

1. OBRA '90 Changes
Section 4603(a) of OBRA '90 changed the requirements in section
1902(e)(4) of the Act under which a newborn child remains eligible for
Medicaid, effective January 1, 1991. Prior to this change, States were
only required to continue the eligibility of an infant deemed eligible
at birth for so long as the infant remained a member of the mother's
household and the mother remained eligible for Medicaid. States must
now also continue the eligibility of an infant deemed eligible at birth
if the infant remains a member of the mother's household and the mother
loses Medicaid eligibility but would remain eligible if pregnant.
We considered whether the language ``remain eligible if pregnant''
meant that the mother should be considered as newly pregnant in each
month after the postpartum period. Under this interpretation, if the
mother was regarded as reapplying for Medicaid after the postpartum
period as though she were newly pregnant, her income might be too high
for her to be eligible, even under the pregnancy-related eligibility
categories. (For example, the mother's income may have increased above
the applicable standard during the pregnancy but she remained eligible
through the postpartum period by virtue of section 1902(e)(6) of the
Act.) If she is regarded as newly pregnant, she would not receive the
continued coverage under section 1902(e)(6) for women whose incomes
increase after they are already eligible and pregnant. As a result, the
mother would not be ``eligible'' even if she were considered to be
pregnant and the infant would lose eligibility under section
1902(e)(4).
We decided that a better reading of the provision would be to
consider a mother as if she had not yet given birth; that is, as if she
had remained continuously pregnant. A discussion of this provision in
the House Report of the Committee on Budget to accompany H.R. 5835 (H.
Rep. No. 881, 101st Cong., 2d. Sess. 103 (1990)) refers to the woman
remaining eligible for Medicaid or one who ``would be eligible for
Medicaid were she still pregnant,'' which implies she should be treated
as if she had not given birth. Therefore, we propose to require States
to continue the eligibility of an infant deemed eligible at birth who
is in his or her mother's household and whose mother would still be
eligible for Medicaid if the infant had not yet been born. Under this
interpretation, changes in the mother's income will have no impact on
the infant's eligibility because were the mother still pregnant, she
would remain eligible without regard to changes in income by virtue of
section 1902(e)(6) of the Act. A redetermination of the mother's
eligibility is not required at the end of the postpartum period unless
information is received that there has been a change in the mother's
circumstances which might have affected her eligibility even if she
were still pregnant and the infant had not yet been born.
2. Member of the Mother's Household
An infant must continue to be a member of his/her mother's
household to maintain deemed newborn eligibility. We are codifying
existing policy related to determinations of whether an infant is a
member of his or her mother's household. An infant is considered a
member of his or her mother's household as long as he or she is
continuously hospitalized after birth, unless the mother has legally
relinquished control of the child or the State has established that she
has abandoned the child. After the infant's release from the hospital,
or in situations not involving hospitalization, States must apply the
AFDC rules for determining whether a child is living with a specified
relative to determine if an infant (who is not an SSI recipient) is a
member of his or her mother's household.

E. Inpatient Services to Infants and Children

Under section 1902(e)(7) of the Act, as added by OBRA '86 and
amended by section 4101(b) of OBRA '87, section 302(e)(2) of MCCA, and
section 6401 of OBRA '89, States must extend Medicaid eligibility to a
low-income infant or child described in section 1902(l) of the Act or a
qualified child described in section 1905(n)(2) of the Act who is
receiving covered inpatient services in a hospital or a long-term care
facility on the date he or she attains the maximum age for Medicaid
eligibility under the State plan until the end of the inpatient stay if
the child or infant remains eligible, except that he or she has
attained that maximum age. This provision applies to the mandatory and
optional categorically needy eligibility groups of low-income infants
and children described under section 1902(l) of the Act. Section 6401
of OBRA '89 extended this provision to the new mandatory categorically
needy group of low-income children age 1 up to age 6 under section
1902(l)(1)(C) and section 4601 of OBRA '90 (by changes to section
1902(l)(1)(D)) to the new mandatory categorically needy group of
children born after September 30, 1983 who have not attained age 19
also. (In addition, section 302(b) of MCCA further clarified this
provision by adding in the matter after paragraph (F) of section
1902(a)(10) a new paragraph (X) to provide that States that impose
durational limits on payments for inpatient hospital services must
establish exceptions to these limits for medically necessary inpatient
services received by an infant up to age 1 in a hospital designated as
a disproportionate share hospital under the State's Medicaid plan.
Regulations to interpret section 302(b) of MCCA are included in a
separate document that is under development.)
We propose to amend Secs. 435.520 and 436.520 to require State
agencies to extend Medicaid eligibility to a low- income infant or
child described in section 1902(1) of the Act and a qualified child
described in section 1905(n)(2) of the Act who are receiving covered
inpatient services on the date they attain the maximum age for Medicaid
eligibility under the State plan until the end of the inpatient stay if
the infant or child remains eligible except for attainment of the
maximum age; and make conforming changes to Secs. 435.500 and 436.500.

F. Low-Income Aged and Disabled Individuals

Section 9402 of OBRA '86 amended the Social Security Act by adding
new sections 1902(a)(10)(A)(ii)(X) and 1902(m) to establish an optional
categorically needy eligibility group of aged and disabled individuals
with incomes at or below the Federal poverty income level. Section
1902(m) of the Act, as added by OBRA '86 and amended by section
4118(p)(8) of OBRA '87 and section 301(e) of MCCA, describes
individuals in this group as those who are 65 years of age or older or
are disabled as determined under SSI, whose income does not exceed a
standard established by the State that is set at a percentage (at or
below 100 percent) of the Federal poverty income level, and whose
resources do not exceed the maximum amount of resources allowed under
SSI. If a State has a medically needy program with a more generous
resource level, section 1902(m)(2)(B) allows a State to elect to use
the medically needy resource level instead of the SSI resource level.
Between July 1, 1987 and June 30, 1989, States were permitted to
provide eligibility to this optional group of low-income aged and
disabled individuals only if they also provided Medicaid eligibility to
the low-income group of pregnant women and infants under the provisions
of section 1902(a)(10)(A)(ii)(IX) as added by section 9401 of OBRA '86
discussed earlier. Section 301(e)(2)(D) of MCCA removed the condition
for providing eligibility to both groups, effective July 1, 1989.
Income eligibility for this optional group of aged and disabled
individuals is based on a standard established at a level that is at or
below 100 percent of the Federal poverty income guidelines for a family
of the size involved. The term ``family of the size involved,'' as used
in section 1902(m)(2)(A), is not specifically defined in the statute.
However, for this optional group of aged and disabled we believe that
it would be appropriate to adopt for individuals and couples who seek
eligibility under section 1902(m) of the Act the SSI program's
distinction between eligible individuals and eligible couples,
depending on whether the individual alone is eligible or both members
of the couple are eligible under section 1902(m). Since the statute
requires that income be determined using the principles of section
1612, which are SSI program rules, using SSI's individual and couple
distinction as well as SSI's deeming rules enables States to have a
clear understanding of the baseline for determining eligibility for
members of this poverty level-related group. It also avoids potential
conflicts with section 1902(a)(17)(D) of the Act, which could result if
eligibility for this group were determined by pooling family income (if
the family included individuals other than a husband and wife).
The SSI program determines eligibility for couples, or for
individuals. If the SSI definition of a couple (i.e., the couple is
married and they qualify for SSI benefits as an eligible couple) is not
met, eligibility is determined on an individual basis. We propose to
apply this principle to determine eligibility for the optional Medicaid
aged and disabled group. If two individuals are married and are both
eligible under section 1902(m), both spouses will be considered a
couple even if only one spouse applied for medical assistance and their
income will be compared to the Federal poverty level for a family of
two. If both individuals in a family are not eligible as a couple under
section 1902(m), their eligibility will be determined as individuals,
with their incomes being compared to the poverty level for an
individual, and deeming of income and resources from responsible family
members using SSI deeming methodologies.
Section 1902(m) of the Act has always specified that resources of
individuals under the low-income optional categorically needy group of
aged and disabled individuals may not exceed the SSI limits, and that
SSI methodologies must be used to determine countable income and
resources. However, section 1902(r)(2) of the Act, as added by section
303(e) of MCCA, does permit States, at their option, to use less
restrictive requirements than SSI for optional categorically needy
groups. However, in spite of section 1902(r)(2), we do not believe that
States are authorized to allow individuals to deduct (spend down) the
costs incurred for medical care or any other type of remedial care from
income in order to meet the income standard established, except as they
are permitted to do so under SSI if the individual is a severely
disabled person who works. This is because section 1902(m)(3)(B) of the
Act specifically prohibits the use of an income spenddown, except in
the case of individuals covered by section 1612(b)(4)(B)(ii) of the
Act. Under this exception, a severely disabled individual who works is
allowed to deduct from income the reasonable costs for attendant care
services, medical devices, equipment, prostheses, and similar items and
services (generally not including routine drugs or routine medical
services) that are necessary in order for the individual to work.
Section 6411(a) of OBRA '89 amended section 1902(f) of the Act to
eliminate the option to use more restrictive eligibility criteria than
are used by the SSI program for certain eligibility groups. One of
those groups is the optional low-income aged and disabled group.
Therefore, section 1902(f) States that elect to cover the section
1902(m) group must use SSI eligibility methodologies, and the
statutorily mandated income and resource standards, in determining
eligibility for individuals under this group. The only exception is
that section 1902(f) States can use more liberal criteria under section
1902(r)(2). (Guam, Puerto Rico, and the Virgin Islands would use the
SSI disability definition under section 1614 of the Act and the
methodologies for determining income and resource eligibility applied
under sections 1612 and 1613, or less restrictive income and resource
methodologies under section 1902(r)(2), as appropriate. This is because
the reference in section 1902(m) relating to disability and financial
methodologies is to those of title XVI (that is, SSI) and not to those
of the State plan program under title XVI.)
Section 4501(e)(1) of OBRA '90 amended section 1905(p)(2) of the
Act by adding paragraph (D) to provide that, in determining income
eligibility for qualified Medicare beneficiaries (QMBs) who are
entitled to monthly title II insurance benefits, any cost-of-living
adjustment (COLA) in these title II benefits received beginning in
December of the preceding year must be disregarded. We will issue a
separate regulation incorporating this provision for QMBs. Section
4501(e)(2) of OBRA '90 made this rule also apply to the income
eligibility determinations of the aged and disabled individuals covered
by section 1902(m).
The disregard applies to all the months from the month the COLA
increase is effective through the month after the month the revised
poverty levels are published each year. Since the new poverty levels
are usually published in February, the disregard normally will be
effective through March of each year.
However, for Medicaid purposes, the new poverty levels are
effective upon publication. This means that, for the period between
publication of the poverty levels (usually mid-February) and the end of
the disregard period (usually March), the disregard of the COLA
increase and the poverty level increase would overlap. As a result of
this overlap, some individuals would meet the income level for this
group because the COLA disregard would lower their countable income at
the same time that the revised poverty level would allow for higher
income. As soon as the COLA disregard expired, these individuals would
lose eligibility again.
We believe that this approach would create an unreasonable
administrative burden for States. They would have to add these
individuals to the Medicaid rolls, only to have to remove them again a
few weeks later. We also believe that the intent of the statutory
provision is to protect individuals who would lose that status for a
few weeks because of the COLA increase (but only until the increase in
the poverty level took effect), and not to permit other individuals to
achieve eligibility status for a few weeks.
For these reasons, we are proposing to make the revised poverty
levels effective for title II recipients with the month after the last
month in which the COLA disregard is effective. Since the COLA
disregard normally expires at the end of March, in most years, the new
poverty levels would be effective for these individuals on April 1. By
delaying the effective date of the increased poverty level so that it
coincides with the date on which the COLA increase is first counted, we
would eliminate the problem discussed above.
Section 9402 of OBRA '86 does not require or permit the different
treatment of income and resources allowed for this low-income aged and
disabled eligibility group to be applied to other Medicaid eligibility
groups because of the comparability provisions of section 1902(a)(17)
of the Act. In addition, we propose to require that if a State elects
to provide Medicaid eligibility to this low-income group, it must cover
both the aged and disabled and must apply the same income and resource
standards to both groups and to all family sizes involved. This
requirement is consistent with the intent of Congress, as expressed in
the language of the House Committee Report accompanying OBRA '86 (H.
Rep. 727, 99th Cong., 2d Sess. 103 (1986)).
Medicaid services provided to the optional group of low-income aged
and disabled individuals must be the same in amount, duration, and
scope as the Medicaid services provided to other categorically needy
individuals under the approved State Medicaid plan.
The amendments made by section 9402 of OBRA '86 apply to payments
to States for services for calendar quarters beginning on or after July
1, 1987, without regard to whether or not final regulations to carry
them out have been published by that date.
We propose to incorporate the provisions of sections
1902(a)(10)(A)(ii)(X) and 1902(m) of the Act and section 9402 of OBRA
'86 in the Medicaid regulations by adding Sec. 435.238 (Sec. 436.235
for the Territories) to specify the optional categorically needy
eligibility group of aged and disabled individuals with incomes at or
below Federal poverty income guidelines and the conditions under which
they may establish eligibility. We also propose to add a new
Secs. 435.615 and 436.615 to specify the requirements for establishing
the income and resource standards and methodologies for this group and
for determining financial eligibility.

G. Presumptive Eligibility for Pregnant Women

Section 9407 of OBRA '86 added a new section 1902(a)(47) to the
Act, redesignated section 1920 as section 1921, and added a new section
1920 to allow States to provide ambulatory prenatal care to certain
needy pregnant women to help ensure that these women receive health
care early in pregnancy. Section 411(k)(16)(B) of the MCCA and section
4605 of OBRA '90 amended section 1920. Under section 1920, ambulatory
prenatal care is available during a presumptive eligibility period on
the basis of income eligibility only before a woman is formally
determined to be eligible or ineligible for Medicaid and for a
specified number of days while a woman is waiting for a Medicaid
eligibility determination. Under the statutory provisions, a qualified
provider, who is defined in section 1920(b)(2), determines whether a
pregnant woman is presumptively eligible for Medicaid. These qualified
providers make the presumptive eligibility determination on the basis
of preliminary information about the pregnant woman's family income.
The qualified provider determines whether the pregnant woman's family
income appears to meet the income criteria applied to any of the
eligibility groups specified in the approved State Medicaid plan under
which the pregnant woman might be eligible. At the time of the
determination, a qualified provider must refer a pregnant woman to the
Medicaid agency. The qualified provider must also assist a pregnant
woman in completing and filing an application for full Medicaid
services if she wishes to apply for Medicaid at that time. The Medicaid
agency then would establish whether or not she is eligible for regular
Medicaid.
Any provider that is eligible for payment under the State plan for
services which the State considers to be ambulatory prenatal care can
furnish these services to presumptively eligible pregnant women during
the presumptive period. (We note that the purpose of presumptive
eligibility is to provide temporary, limited coverage to pregnant women
who are likely to be eligible for Medicaid. Under section 1905(a) of
the Act, individuals who are inmates in public institutions are
ineligible for Medicaid. Therefore, because she is not ``likely to be
eligible for Medicaid,'' any pregnant woman who is an inmate in a
public institution could not be determined presumptively eligible for
Medicaid and receive ambulatory prenatal care under section 1920 of the
Act.)
In accordance with section 1920(b)(1), as added by OBRA '86 and
amended by section 4605 of OBRA '90, the presumptive period of
eligibility for ambulatory prenatal care begins on the day a qualified
provider makes a presumptive eligibility determination. The pregnant
woman then has until the last calendar day of the month following the
month in which the presumptive eligibility determination was made to
file a regular Medicaid application with the Medicaid agency. If she
does not file a regular Medicaid application by that last day,
presumptive eligibility ends on that last day. If she files a regular
Medicaid application, presumptive eligibility under section 1920 ends
on the date a decision is made on the regular Medicaid application.
We are proposing to allow only one presumptive eligibility period
for any one pregnancy. We believe that this limitation is consistent
with the intent of Congress as evidenced in the language of the Senate
Committee Report on OBRA '86 (S. Rep. 348, 99th Cong., 2d Sess. 153
(1986)). In explaining the provision, the Committee stated that under
the presumptive eligibility program, States may ``for any one
pregnancy, grant presumptive eligibility for a period not to exceed * *
*'' (emphasis added). Congress' use of the underscored phrases leads to
the conclusion that only one presumptive period was intended. We
solicit comments on the proposed policy to allow only one presumptive
eligibility period per pregnancy.
The new section 1920 specifies that a presumptive eligibility
determination is to be made if the pregnant woman appears to the
qualified provider, on the basis of preliminary information supplied by
her on family income, to meet the applicable income level of
eligibility only. Resources and other Medicaid eligibility requirements
that would be considered under the approved State plan if the woman
were to apply for regular Medicaid benefits are not considered in
making the presumptive eligibility determination. In addition, section
1920 provides that a determination of presumptive eligibility be based
on ``preliminary information'' about family income. Therefore, a
qualified provider may only request information that is correct based
upon a pregnant woman's best information and belief and may not require
exact information under a penalty of perjury. A State may require that
women reveal what their incomes are or only that their incomes are
below the applicable level.
In implementing the provisions of section 1920 that specify that
presumptive eligibility determinations must be based on family income,
we would require the qualified provider in all cases to apply to the
woman's gross family income the highest, most advantageous income
criteria applicable to the pregnant woman under the approved plan. The
``applicable'' level would usually be the higher of either the poverty
level standard or the medically needy income level (without spenddown).
This means that income disregards are not considered, and in the case
of blind or disabled individuals in section 1902(f) States, or in
States that have a medically needy program, the cost of incurred
medical expenses could not be deducted in order to reduce income to the
allowed income level (spending down). Consideration of disregards and
incurred medical expenses would allow some women to have income above
the ``applicable level'' specified in section 1920(b)(1)(A). We believe
Congress intended by the use of the term ``applicable level'' to
require qualified providers only to make simple calculations and not
complicated adjustments of income such as those involved in applying
spenddown rules or in disregarding certain types of income. To impose
detailed calculations and complicated adjustments on providers would be
administratively burdensome and contrary to efficient administration
because of the short-term nature of the presumptive eligibility status
and because no other eligibility requirements (not even resources) are
considered. We believe that we are not imposing an undue hardship on a
pregnant woman by not allowing spenddown or not disregarding certain
income. If the provider makes a decision that the woman does not
``appear'' to meet the income criteria, the pregnant woman still has
the right to apply for regular Medicaid within a reasonable period of
time and have a formal eligibility determination made. Under a formal
eligibility determination, the agency may find that the pregnant woman
is retroactively eligible for regular Medicaid during the presumptive
period under the authority of section 1902(a)(34) of the Act.
Section 1920(b)(2) of the Act, as added by OBRA '86 and amended by
section 411(k)(16) of MCCA, specifies the qualifications that a
provider must meet in order to be allowed to make presumptive
eligibility determinations. The provider must--
(1) Be eligible to receive payments under Medicaid;
(2) Be an entity that provides services of the following type:
outpatient hospital services as specified in section 1905(a)(2)(A) of
the Act or rural health clinic services and any other ambulatory
services offered by a rural health clinic and otherwise included in the
plan as described in section 1905(a)(2)(B); or be an entity that
provides clinic services by or under the direction of a physician
described in section 1905(a)(9) of the Act;
(3) Be determined by the State agency to be capable of making
presumptive eligibility determinations on the basis of preliminary
information on family income; and
(4) Meet one of the following conditions:

--Be receiving funding from the migrant health centers or community
health centers programs under sections 329, 330, or 340 of the Public
Health Service Act; funding from the maternal and child health services
block grant program under title V of the Social Security Act; or
funding under title V of the Indian Health Care Improvement Act.
--Be participating in the Special Supplemental Food Program for Women,
Infants, and Children established under section 17 of the Child
Nutrition Act of 1966, or in the Commodity Supplemental Food Program
established under section 4(a) of the Agriculture and Consumer
Protection Act of 1973.
--Be participating in a State perinatal program.
--Be the Indian Health Service or a health program or facility operated
by a tribe or tribal organization under the Indian Self-Determination
Act (Pub. L. 93-638).

All providers who meet the criteria listed above must be considered
qualified providers. Therefore, if a State determines that a provider
is not capable of making presumptive eligibility determinations for
pregnant women, that provider would not be considered ``qualified'' to
make these determinations. We would permit States to exclude a provider
that is qualified only under very narrow circumstances; that is, if a
State can demonstrate that there is good cause to exclude the provider.
In addition, we wish to give States maximum flexibility in meeting the
needs of pregnant women and, therefore, propose to allow States to
determine whether a program is a ``State perinatal program.''
In interpreting the provisions of section 1920(b), we would require
States to provide qualified providers with proper screening forms for
pregnant women to request a decision of presumptive eligibility. We
also would require the States to provide instructions to qualified
providers on how to apply the gross income criteria under the various
eligibility groups under the State's approved Medicaid plan and how to
determine the highest income criteria group under which the pregnant
woman is most likely to be eligible if she applies for regular
Medicaid. We are not prescribing the specific content and format of the
screening forms or instructions. However, we expect State instructions
to be in enough detail to allow a qualified provider (based on
preliminary information provided by a pregnant woman) to make
reasonably accurate income eligibility determinations.
In accordance with section 1920(c)(1), we would require State
agencies to furnish qualified providers with regular Medicaid
application forms and train them to assist pregnant women who wish to
apply in completing and filing these forms. As provided by section
1920(c)(3) of the Act as amended by section 4605 of OBRA '90, the
application provided may be an application developed by the State for
use by pregnant women who wish to apply as low-income pregnant women
described in section 1902(l)(1)(A) of the Act.
Section 1920(c)(3) of the Act seems to contemplate an application
for regular Medicaid that is separate from the screening form for
presumptive eligibility for ambulatory prenatal care. We believe the
presumptive eligibility screening form and the regular Medicaid
application can be combined. However, pregnant women cannot be required
to provide all of the information necessary for a full-scale Medicaid
application when applying for only presumptive eligibility. If the
forms are combined, a State agency can offer the pregnant woman the
option to complete the entire application but cannot require that she
do so in order to establish presumptive eligibility. A qualified
provider must make a presumptive eligibility determination once a
pregnant woman has provided information about her family income and
cannot require additional information.
A presumptive eligibility screening form alone cannot be used to
establish a filing date for a regular Medicaid application. If a
combined presumptive eligibility screening form and Medicaid
application is used and the woman chooses to complete the entire
application, the completed application form must be forwarded promptly
to the appropriate State agency for a decision on regular Medicaid
eligibility under the plan once the qualified provider makes a decision
on presumptive eligibility. In this situation, the date the completed
form is received by the State agency is the Medicaid filing date for
Medicaid eligibility. If the woman is determined to be eligible, this
date will determine the beginning of the period in which she qualifies
for the more extensive services under the plan and will establish the
month used to determine the dates of the 3 months of retroactive
eligibility, if the woman would have been eligible during the
retroactive period. Under this latter approach, pregnant women would
not be required to file another application. However, they would not be
exempt from meeting with State agency staff as appropriate or from
providing additional information necessary to determine eligibility
under the plan.
A modified approach under this option would be to have State agency
staff on site at qualified provider locations to supervise or actually
assist pregnant women in completing the application form. In these
cases, the application date for regular Medicaid plan services would be
the date the onsite State agency staff person receives the completed
form. This would result in an earlier Medicaid filing date. However,
even though State agency staff who are working at qualified provider
locations can receive and process applications for regular Medicaid,
they cannot make presumptive eligibility determinations unless they
themselves meet the definition of ``qualified provider'' under section
1920(b)(2).
Since we are considering pregnant women who apply only for
presumptive eligibility for ambulatory prenatal care as requesting to
receive services under a special status (that is, not regular Medicaid
eligibility), we propose not to apply to a decision on presumptive
eligibility the notification requirements that a State must meet when
it makes a decision on a regular Medicaid application. Existing
regulations under Secs. 435.911 and 435.912 and part 431, subpart E,
require Medicaid agencies to notify Medicaid applicants within a
specified period of time of the agency's decision on a regular Medicaid
application, the reasons for the decision, and an explanation of rights
to a hearing if the application is denied. Although we propose not to
apply the requirements of Secs. 435.911 and 435.912 and part 431,
subpart E, to presumptive eligibility decisions, we are proposing to
require that the qualified provider inform a pregnant woman in writing
of the presumptive eligibility decision at the time of the
determination. In the case of a denial of presumptive eligibility, the
qualified provider would be required to inform the woman in writing of
the reason for the denial of this special status and of her right to
apply to the State agency for an eligibility decision for regular
Medicaid.
In accordance with section 1920 of the Act, we propose to require
the qualified provider to inform, in writing, a pregnant woman who is
determined presumptively eligible that she is required to file a
regular Medicaid application by the last day of the month following the
month in which the presumptive determination is made if she wishes to
continue to receive ambulatory prenatal care after that date. The
qualified provider must inform the pregnant woman in writing that if
she does not file her application for regular Medicaid by the last day
of the month following the month in which she was determined
presumptively eligible, her presumptive eligibility will end on that
date. However, if she files within the deadline, she will remain
presumptively eligible until she has a regular Medicaid determination.
Under the provisions of section 1920(c)(2), the qualified provider also
must notify the State agency within 5 working days after the date on
which the provider determines that the pregnant woman is presumptively
eligible.
While the procedures under Secs. 435.911 and 435.912 for notifying
individuals of actions on applications would not apply to presumptive
eligibility decisions for ambulatory prenatal care, they would apply to
regular Medicaid applications filed after the presumptive eligibility
determination is made. Because we do not consider presumptive
eligibility for ambulatory prenatal care to be eligibility for Medicaid
per se, and because termination of ambulatory prenatal care benefits
occurs automatically after specified time periods under section 1920 of
the Act, we also propose not to apply the existing provisions of the
regulations that require Medicaid agencies to provide timely written
notice of reduction or termination of Medicaid benefits and rights to
appeal of an adverse action (part 431, subpart E and Sec. 435.919). As
indicated earlier, we propose to require a qualified provider to
provide written notice of the date a pregnant woman can expect
presumptive eligibility for ambulatory prenatal care to end. However,
we propose not to grant rights to appeal a denial or termination of
ambulatory prenatal care services under a presumptive eligibility
decision. A presumptively eligible pregnant woman who subsequently
files a regular Medicaid application that is denied would have the
right to appeal the denial of her regular Medicaid application.
We do not believe that we are imposing an undue burden on qualified
providers by requiring that notification by a qualified provider be in
writing. We do not foresee that this written notice will be individual
personal letters. We considered requiring States to supply qualified
providers with preprinted notices. However, we decided to allow States
the flexibility to determine how to best arrange for this notification
within each State program. We particularly solicit comments on whether
the requirement that notification by a qualified provider be in writing
imposes an undue hardship on qualified providers.
Existing regulations at Sec. 435.914 permit States to provide
Medicaid for an entire month when an individual is eligible for
Medicaid under the plan at any time during the month. We propose not to
permit States to provide full month eligibility for presumptive
eligibility periods because by definition a presumptive determination
is not a determination of Medicaid eligibility but eligibility for a
special status. Therefore, special status eligibility begins on the
exact date a presumptive eligibility decision is made and ends on the
last day of the month following the month in which the presumptive
decision is made when a Medicaid application has not been filed, or on
the date a formal decision of Medicaid eligibility is made if an
application has been filed. However, full month regular Medicaid
eligibility is available during the approval month of a regular
Medicaid application in States that have elected full month coverage in
their approved State Medicaid plan.
Section 9407 of OBRA '86, as amended by section 411(k)(16) of MCCA,
provides that, for purposes of Federal financial participation,
ambulatory prenatal care services that are covered under the plan, are
furnished by a provider that is eligible for payment under the State
plan, and are furnished to pregnant women during a presumptive period
of eligibility, will be treated as expenditures for medical assistance
under the State plan and thus are regarded as Medicaid plan services.
If the State makes any payments for ambulatory prenatal care furnished
by an eligible provider during the presumptive period for women who are
later determined to be ineligible for Medicaid, these payments will not
be counted in determining a State's excess erroneous payments for
purposes of disallowing Federal financial participation. In general,
Medicaid quality control will not review the accuracy of presumptive
eligibility determinations in terms of predicting a pregnant woman's
eligibility for Medicaid, and any erroneous payments made cannot be
counted in determining the State's erroneous payments for purposes of
quality control eligibility errors. However, quality control will
review claims for services furnished to presumptively eligible pregnant
women to determine whether these claims were, in fact, made for women
who were pregnant and were for ambulatory prenatal services covered
under the State plan, were furnished by a provider that is eligible to
receive payment under the State plan, and were furnished during a
period of presumptive eligibility. There will be situations in which
the services furnished by a qualified provider will include
verification of a woman's pregnancy. The services that are furnished
for verification will be covered as presumptive eligibility services
for FFP purposes only if the woman is actually pregnant. Section 1920
covers only ambulatory prenatal care made available to a pregnant woman
during a specified period. Services furnished to deliver or remove an
embryo/fetus from the mother or furnished following that delivery or
removal will not be covered as presumptive eligibility services for FFP
purposes. That is because, if the embryo/fetus is no longer viable, the
woman is no longer considered to be a pregnant woman. Also, we do not
believe that the services involved in delivering either a viable or
nonviable fetus constitute prenatal services. In addition, any services
furnished following removal or delivery would not be furnished to a
pregnant woman nor would they constitute prenatal care.
We also expect States to monitor decisions made by specific
qualified providers to assure the accuracy and integrity of the
determinations and to take any corrective actions that may be
necessary. Therefore, we are proposing to require States to monitor
presumptive eligibility decisions.
We propose to amend the Medicaid regulations to incorporate the
provisions of section 9407 of OBRA '86, section 411(k)(16) of MCCA, and
section 4605 of OBRA '90 as follows:
Revise Secs. 431.864 and 431.865 to specify that excess
erroneous payments for purposes of disallowance of Federal financial
participation do not include erroneous payments for ambulatory prenatal
care covered under the State plan, and provided to pregnant women
during a presumptive eligibility period by a provider eligible for
Medicaid payments.
Add Secs. 435.250 and 436.250 to specify optional coverage
of pregnant women during a presumptive eligibility period.
Amend Sec. 435.907 to clarify what constitutes a formal
Medicaid application.
Add a new Sec. 435.911 to specify the screening and
application requirements and procedures for making presumptive
eligibility determinations. Existing Secs. 435.911 through 435.914
would be redesignated as Secs. 435.914 through 435.917, respectively,
to allow the incorporation of the new Sec. 435.911.
Add a new Sec. 435.912 to specify the application
requirements for pregnant women following the presumptive eligibility
determination.
Amend Secs. 435.1001 and 436.1001 to clarify that FFP is
available in the necessary administrative costs the State incurs in
determining presumptive eligibility for pregnant women and in providing
ambulatory prenatal care to presumptively eligible women.
Revise Sec. 440.1 to add the statutory basis for providing
ambulatory prenatal care to pregnant women during a presumptive
eligibility period.
Add Sec. 440.172 to define ambulatory prenatal care and
qualified provider.
Add Sec. 447.85 to specify the availability of Federal
financial participation for payments for ambulatory prenatal care.

H. Enhancement of Pregnancy Outcomes

As we have discussed earlier in two sections of this document,
Congress has expanded mandatory and optional Medicaid eligibility for
pregnant women as part of an overall effort to combat the problem of
infant mortality and incidences of low-birth weight through provision
of needed health services to low-income pregnant women. In addition, we
believe that we must focus State attention on the need for special
vigilance in cases of high-risk pregnancy in order to maximize the cost
effectiveness of the increased Medicaid investments. Examples of high-
risk pregnancies include those in which the women have a complicating
medical condition, complications that may result from genetic factors,
or a history of adverse pregnancy outcomes. There is much evidence that
many adverse birth outcomes are preventible through timely and
appropriate intervention by health and social services agencies, with
the potential for reducing infant mortality, the use of high-cost
neonatal intensive care services, and the incidence of long-term care
services associated with extended or lifelong disabilities.
We propose to add Sec. 435.935 to the Medicaid regulations to
require States to define a high-risk pregnancy, to describe the methods
they will apply to identify high-risk pregnant women, and to specify
steps that individuals, groups, and organizations involved in the
service delivery system will take to ensure that these women will
receive services designed to enhance pregnancy outcomes for both the
mother and the child. The purpose of defining these terms is to assist
States in their efforts to see that pregnant Medicaid recipients
receive the full range of medical and related services appropriate to
their risk status.
We are proposing to impose these requirements on States under the
authority of sections 1902(a) (4) and (19) of the Act. These
provisions, respectively, require that the Medicaid State plan provide
for such methods of administration as are found necessary by the
Secretary for the proper and efficient operation of the plan, and
provide such safeguards as may be necessary to assure that eligibility
for care and services under the plan will be determined, and the care
and services will be provided in a manner consistent with simplicity of
administration and the best interests of recipients.
We specially solicit comment on the proposal to require States to
target potentially high risk pregnant women. Moreover, we are
interested in comments on the effectiveness of a State plan amendment
to achieve this goal.

I. Clarification of Medicaid to Homeless Individuals

Section 9405 of OBRA '86 revised section 1902(b)(2) of the Act to
prohibit States from imposing any residence requirement that excludes
from Medicaid an otherwise eligible individual who resides in the
State, but does not maintain a residence permanently or at a fixed
address. Before this provision was enacted, some States were requiring
applicants for Medicaid to furnish a fixed address or evidence of a
permanent residence in order to qualify for Medicaid, even though this
was not a Federal requirement. In addition, section 11005 of the
Homeless Eligibility Clarification Act added section 1902(a)(48) to the
Act to require, as a State plan requirement, that States establish a
method for making Medicaid eligibility cards available to an eligible
individual who does not reside in a permanent dwelling or at a fixed
address. This provision was effective on January 1, 1987.
In the interest of affording States maximum flexibility in the
administration of their Medicaid programs, we are not proposing to
impose a specific method to be used to issue Medicaid eligibility cards
to homeless individuals. However, the State would be required to
describe the method in its State plan. The method, as part of the State
plan, would be subject to approval by HCFA. HCFA will approve any
reasonable method that ensures the timely issuance of cards and receipt
of Medicaid and that does not impose an undue hardship on the homeless
individual.
We propose to--
Amend Secs. 435.403 and 436.403 to add the prohibition
against requiring otherwise eligible homeless individuals to have a
fixed address or reside in a permanent dwelling.
Add a new Sec. 435.932 to specify the State plan
requirement that a State must establish and specify a method for
issuing Medicaid eligibility cards to homeless individuals.

III. Response to Public Comments

Because of the large volume of public comments that we usually
receive on notices of proposed rulemaking, we cannot acknowledge or
respond to them individually. However, we will address all public
comments received on this document in the preamble to the document in
which these proposed regulations are issued in final form.

IV. Paperwork Burden

Sections 435.612(f), 435.615(e), 435.907, 435.911, 435.918,
435.932, 435.935, 436.612(e), 436.615(e), 447.51, and 447.60 contain
information collection and reporting requirements that are subject to
review by the Office of Management and Budget under the requirements of
the Paperwork Reduction Act (44 U.S.C. chapter 35). We have submitted
these proposed regulations to OMB for review. The reporting burden for
this collection of information is estimated to be 6 hours per response.
A notice will be published in the Federal Register when approval is
obtained. Comments regarding the burden estimate or any other aspect of
information collection must be addressed to the specified office
indicated under the ``ADDRESSES'' section of this preamble.

V. Regulatory Analysis

We generally prepare a regulatory flexibility analysis that is
consistent with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
through 612), unless the Secretary certifies that a proposed regulation
would not have a significant economic impact on a substantial number of
small entities. For purposes of RFA, we consider all providers and
suppliers of health care as small entities. Individuals and States are
not included in the definition of a small entity. We are not preparing
a RFA because we have determined, and the Secretary certifies, that
this proposed regulation would not have a significant economic impact
on a substantial number of providers and suppliers.
Also, section 1102(b) of the Act requires the Secretary to prepare
a regulatory impact analysis if a proposed rule may have a significant
impact on the operations of a substantial number of small rural
hospitals. Such an analysis must conform to the provisions of section
603 of the RFA. For purposes of section 1102(b) of the Act, we define a
small rural hospital as a hospital which is located outside a
Metropolitan Statistical Area and has fewer than 50 beds. We are not
preparing a rural hospital impact statement because we have determined,
and the Secretary certifies, that this proposed regulation would not
have a significant economic impact on the operations of a substantial
number of small rural hospitals.
Although this proposed rule is not an ``economically significant''
rule under Executive Order 12866, the statutory changes which are the
basis of this proposed rule, are substantial. We present below a
voluntary anaylsis of these effects.
This proposed rule would incorporate in regulations, and in some
cases interpret, statutory changes that are already in effect. In cases
where it was necessary to provide interpretation, we have relied on the
legislative history of the statutory provisions, when available, for
the best reading of the provision. The statutory provisions are
effective on the statutorily established date, regardless of whether or
not we have issued final regulations. The statutory changes that expand
eligibility groups and coverage of services will increase Medicaid
program expenditures independently of the promulgation of this rule.
Costs associated with these proposed regulations are the result of
legislation or due to the interpretation of statutory changes already
in effect. Therefore, these costs have been included in the Medicaid
budget estimates.
It is difficult to predict what the fiscal impact will be since
several provisions provide Medicaid coverage to certain groups at the
option of States. Another unknown factor is the additional number of
pregnant women, infants, and children and disabled, elderly, and
homeless individuals who will be offered services that previously were
not covered by the States and the type and cost of these specific
services. We know costs for States will rise as they begin to furnish
the additional services that will be required if medically necessary.
The following data reflects our estimate of medical costs attributable
to expansion of services under the Omnibus Budget Reconciliation Act of
1987, Public Law 100-203; the Medicare Catastrophic Coverage Act of
1988, Public Law 100-360; the Family Support Act of 1988, Public Law
100-485; the Omnibus Budget Reconciliation Act of 1989, Public Law 101-
239; and the Omnibus Budget Reconciliation Act of 1990, Public Law 101-
508. The following estimates are based on data from the census, current
population survey, and average cost using Medicaid data:

Estimated Federal Costs
[Dollars in millions]
----------------------------------------------------------------------------------------------------------------
Law Provisions FY93 FY94 FY95 FY96
----------------------------------------------------------------------------------------------------------------
OBRA-86.......................... MCH*............................. $250 $285 $325 $370
eld/disab**...................... 245 295 355 425
OBRA-87.......................... MCH.............................. 380 440 510 590
OBRA-88.......................... MCH.............................. 165 180 195 210
OBRA-89.......................... MCH.............................. 335 355 380 405
OBRA-90.......................... MCH.............................. 280 415 565 730
-------------------------------------------
Totals....................... ................................. 1655 1970 2330 2730
----------------------------------------------------------------------------------------------------------------

Estimated State Costs
[Dollars in millions]
----------------------------------------------------------------------------------------------------------------
Law Provisions FY93 FY94 FY95 FY96
----------------------------------------------------------------------------------------------------------------
OBRA-86.......................... MCH*............................. $190 $215 $245 $280
eld/disab**...................... 185 220 265 320
OBRA-87.......................... MCH.............................. 285 330 380 445
OBRA-88.......................... MCH.............................. 125 135 145 160
OBRA-89.......................... MCH.............................. 250 265 285 305
OBRA-90.......................... MCH.............................. 210 310 425 550
-------------------------------------------
Totals....................... ................................. 1245 1475 1745 2060
----------------------------------------------------------------------------------------------------------------
*MCH--Maternal/Child Health
**eld/disab--elderly/disabled

Several alternatives were considered in the development of these
proposed regulations and are discussed in detail earlier in the
preamble: Two of the more significant ones involve continuous
eligibility of pregnant women and deemed newborn eligibility under
sections II. B and II. D, respectively, of the preamble. Our proposed
interpretation of the statutory provisions relating to these two areas
would have minimal cost effects and will probably save money through
better management of high risk pregnancies. At most, the proposed
interpretation of the provision relating to continuous eligibility of
newborn children would cost $10 million, a very small addition to the
statutory costs included in the above tables. However, we believe that
most States have already adopted our proposed interpretation as
practice.
In accordance with the provisions of Executive Order 12866, this
proposed regulation was reviewed by the Office of Management and
Budget.

List of Subjects

42 CFR Part 431

Grant programs--health, Health facilities, Medicaid, Reporting and
recordkeeping requirements.

42 CFR Part 435

Aid to Families with Dependent Children, Grant program--health,
Medicaid, Supplemental Security Income (SSI).

42 CFR Part 436

Aid to Families with Dependent Children, Grant programs--health,
Guam, Medicaid, Puerto Rico, Supplemental Security Income (SSI), Virgin
Islands.

42 CFR Part 440

Grant programs--health, Medicaid.

42 CFR Part 447

Accounting, Administrative practice and procedure, Grant programs--
health, Health facilities, Health professions, Medicaid, Reporting and
recordkeeping requirements, Rural areas.

42 CFR chapter IV would be amended as set forth below:

Subchapter C--Medical Assistance Programs

PART 431--STATE ORGANIZATION AND GENERAL ADMINISTRATION

A. Part 431 is amended as follows:
1. The authority citation for part 431 continues to read as
follows:

Authority: Sec. 1102 of the Social Security Act (42 U.S.C.
1302).

2. A new Sec. 431.60 is added to subpart B to read as follows:

Sec. 431.60 Maintenance of AFDC efforts.

Effective July 1, 1989, HCFA will not approve any State plan for
Medicaid if the State has in effect, under its approved AFDC plan,
payment levels (that is, the amount of the AFDC payment for basic needs
made to a family with no other income) that are less than its AFDC
payment levels in effect on May 1, 1988. However, HCFA will continue to
approve amendments to a State plan under these conditions.
3. Section 431.201 is amended by revising the definition of
``action'' to read as follows:

Sec. 431.201 Definitions.

* * * * *
Action means a termination, suspension, or reduction of Medicaid
eligibility or covered services. It does not include a denial of
presumptive eligibility for ambulatory prenatal care for a pregnant
woman or a termination of presumptive eligibility at the end of the
specified period under Sec. 435.911 of this subchapter.
* * * * *
4. In Sec. 431.864, the introductory text of paragraph (b) is
republished and the definition of ``erroneous payments'' under
paragraph (b) is revised to read as follows:

Sec. 431.864 Disallowance of Federal financial participation for
erroneous State payments (effective January 1, 1984 through June 30,
1990).

* * * * *
(b) Definitions. For purposes of this section--
* * * * *
Erroneous payment means the Medicaid payment that was made for an
individual or family under review who--
(1) Was ineligible for the review month or, if full month coverage
is not provided, at the time services were received;
(2) Was ineligible to receive a service provided during the review
month; or
(3) Had not properly met beneficiary liability prior to receiving
Medicaid services.

Effective April 1, 1987, the term does not include erroneous payments
made for ambulatory prenatal care that is included in the care and
services covered under the State plan and furnished to pregnant women
by providers that are eligible to receive payments under the State plan
during a presumptive eligibility period as defined in
Sec. 435.911(e)(2) of this subchapter.
* * * * *
5. In Sec. 431.865, the introductory text of paragraph (b) is
republished and the definition of ``erroneous payments'' under
paragraph (b) is revised to read as follows:

Sec. 431.865 Disallowance of Federal financial participation for
erroneous State payments (for annual assessment periods ending after
July 1, 1990).

* * * * *
(b) Definitions. For purposes of this section--
* * * * *
Erroneous payment means the Medicaid payment that was made for an
individual or family under review who--
(1) Was ineligible for the review month or, if full month coverage
is not provided, at the time services were rendered;
(2) Was ineligible to receive a service provided during the review
month; or
(3) Had not properly met beneficiary liability prior to receiving
Medicaid services.

The term does not include erroneous payments made for ambulatory
prenatal care that is included in the care and services covered under
the State plan and furnished to pregnant women by providers that are
eligible to receive payments under the State plan during a presumptive
eligibility period as defined in Sec. 435.911(e)(2) of this subchapter.

PART 435--ELIGIBILITY IN THE STATES, DISTRICT OF COLUMBIA, THE
NORTHERN MARIANA ISLANDS, AND AMERICAN SAMOA

B. Part 435 is amended as follows:
l. The authority citation for part 435 continues to read as
follows:

Authority: Sec. 1102 of the Social Security Act (42 U.S.C.
1302).

2. The heading of subpart B is revised to read as follows:

Subpart B--Mandatory Coverage of the Categorically Needy and Special
Groups

3. In Sec. 435.3, paragraph (a) introductory text is republished
and several entries are added in numerical order to read as follows:

Sec. 435.3 Basis.

(a) This part interprets the following sections of the Act and
public laws which state eligibility requirements and standards:
* * * * *
1902(c)--Conditions of State plan approval--States must maintain
AFDC payment levels and not require that section 1902(l) low-income
pregnant women, infants, and children apply for AFDC benefits.
* * * * *
1902(e)(6)--Mandatory continuation of Medicaid for pregnant women
without consideration of changes in income up to specified periods
after pregnancy ends.
1902(e)(7)--Continuation of Medicaid eligibility for certain
infants and children receiving inpatient care.
* * * * *
1902(l)--Description of eligible pregnant women, infants, and
children with incomes related to Federal poverty income level.
1902(m)--Description of eligible aged and disabled individuals with
incomes at or below Federal poverty income level.
1902(r)(2)--Use of less restrictive income and resource
methodologies than those for cash assistance programs in determining
financial eligibility of specified categorically needy and medically
needy groups.
* * * * *
1920--Optional presumptive eligibility period for pregnant women.
* * * * *
4. In Sec. 435.116, paragraph (c) introductory text is republished
and paragraphs (c) (1) and (2) are revised to read as follows:

Sec. 435.116 Qualified pregnant women and children who are not
qualified family members.

* * * * *
(c) The agency must provide Medicaid to children who meet all of
the following criteria:
(1) They are born after September 30, 1983, or at State option, an
earlier designated date;
(2) They are under 19 years of age; and
* * * * *
5. Section 435.117 is revised to read as follows:

Sec. 435.117 Newborn children.

(a) The agency must provide categorically needy Medicaid
eligibility to a child born to a woman who is eligible as categorically
needy and is receiving Medicaid on the date of the child's birth. The
child is deemed to have applied and been found eligible for Medicaid on
the date of birth and remains eligible as categorically needy for one
year so long as the woman remains eligible or (with respect to infants
born on or after January 1, 1991) would have remained eligible if still
pregnant and the child is a member of the woman's household. If the
mother's basis of eligibility changes to medically needy, the child is
eligible as medically needy under Sec. 435.301(b)(1)(iii).
(b) An infant is considered to be a member of his or her mother's
household for so long as he or she is continuously hospitalized after
birth, unless the mother has legally relinquished control of the child
or the State has established that she has abandoned the child. After
the infant's release from the hospital, or in situations not involving
hospitalization, States must apply the AFDC rules to determine if an
infant (who is not an SSI beneficiary) is a member of his or her
mother's household.
6. The undesignated center heading ``Mandatory Coverage of Pregnant
Women, Children Under 8, and Newborn Children'' appearing before
Sec. 435.116 is revised and a new Sec. 435.118 is added to read as
follows:

Mandatory Coverage of Pregnant Women, Children Under 19, and Newborn
Children

Sec. 435.118 Pregnant women, infants, and children with family incomes
at a percentage of the Federal poverty income guidelines.

(a) Pregnant women and infants. The agency must provide Medicaid to
pregnant women and women during the 60-day period beginning on the last
day of pregnancy, subject to the limits in Sec. 440.250(q), and to
infants under one year of age who meet the following criteria:
(1) Effective April 1, 1990, they have family income, established
in accordance with Sec. 435.610, that does not exceed 133 percent of
the Federal poverty income guidelines for a family of the size
involved, unless, as of December 19, 1989, the agency had elected to
apply a higher percentage (or percentages) in determining eligibility
for the optional categorically needy groups of low-income pregnant
women and infants described under Sec. 435.228. If the agency had
elected a percentage or percentages greater than 133 percent but no
more than 185 percent for either pregnant women or infants under
Sec. 435.228 or both, the percentage or percentages applicable under
paragraph (a)(1) of this section must be the percentage or percentages
that the agency specified in that election in--
(i) The approved State plan;
(ii) A State plan amendment submitted as of December 19, 1989,
whether approved or not; or
(iii) State legislation enacted or State appropriations made as of
December 19, 1989.
(2) At State option, they have resources that do not exceed
standards, established in accordance with Sec. 435.610, that are no
more restrictive than the SSI standard for pregnant women and no more
restrictive than the AFDC standard for infants under one year of age.
(b) Eligibility period for women and infants. The agency must
provide Medicaid to--
(1) Women described in paragraph (a) of this section, as long as
they continue to meet the criteria described in paragraph (a) of this
section, during their pregnancy and during a post partum period that
begins on the last day of the pregnancy and continues for 60 days.
Sections 435.170 and 435.918(c)(2) may also apply to these women.
(2) Infants described in paragraph (a) of this section, as long as
they continue to meet the criteria described in paragraph (a) of this
section, until they reach age 1, except as provided in Sec. 435.520(b).
Section 435.117 may also apply to these infants.
(c) Children age 1 up to age 6. The agency must provide Medicaid to
children who are age 1 but have not attained age 6 who meet the
following criteria:
(1) Effective April 1, 1990, they have family income, established
in accordance with Sec. 435.610, that does not exceed 133 percent of
the Federal poverty income guidelines for a family of the size
involved; and
(2) At State option, they have resources that do not exceed a
standard, established in accordance with Sec. 435.610, that is no more
restrictive than the AFDC standard.
(d) Eligibility period for children up to age 6. The agency must
provide Medicaid to children described in paragraph (c) of this
section, as long as they continue to meet the criteria described in
paragraph (c) of this section, until they reach age 6, except as
provided in Sec. 435.520(b).
(e) Children age 6 up to age 19. The agency must provide Medicaid
to children born after September 30, 1983, who have attained age 6 but
have not attained age 19 who meet the following criteria:
(1) Effective July 1, 1991, they have family income, established in
accordance with Sec. 435.610, that does not exceed 100 percent of the
Federal poverty income guidelines for a family of the size involved;
and
(2) At State option, they have resources that do not exceed a
standard, established in accordance with Sec. 435.610, that is no more
restrictive than the AFDC standard.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-6540. Public record. Not legal advice.