1 DEPARTMENT OF HEALTH & HUMAN SERVICES Centers for Medicare & Medicaid Services 7500 Security Boulevard, Mail Stop S2 -26-12 -1850 21244 Baltimore, Maryland -005 SMD # 16 “Free Choice of Provider” Clarifying Re: Requirement in Conjunction with State Authority to Take Action against Medicaid Providers April 19, 2016 Dear State Medicaid Director: The C enter for Medicaid and CHIP Services (CMCS) and Center for Program Integrity (CPI) are issuing this State Medicaid Director Letter to provide guidance to state Medicaid agencies on the right of Medicaid beneficiaries to receive covered services from any qualified protecting the state exercises it s authority to take action provider willing to furnish such services when against providers that affect s beneficiary access to those providers , including but not limited to the denial or terminat ion of provider enrollment, or the exclu sion of providers from program participation. Background section 1902(a)(23) of the Social Security Act, Medicaid beneficiaries generally have the Under right to obtain medical services “from any institution, agency, community pharmacy, or person, qualified d . . . who undertakes to provide . . . such to perform the service or services require services.” This provision is often referred to as the “any willing provider” or “free choice of provider” provision. Implementing regulations at 42 C.F.R. § 431.51(b)(1 ) require a state plan to allow a beneficiary to obtain Medicaid services from any institution, agency, pharmacy, person, or organization that is (i) qualified to furnish services and (ii) willing to furnish them to There is an exception for beneficiaries enrolled in certain managed that particular beneficiary. care plans (to permit such plans to restrict beneficiaries to providers in the managed care plan network), except that such plans cannot restrict free choice of family planning providers . See section 1902(a)(23)(B); 42 C.F.R. § 431.51(b)(1); 42 C.F.R. Part 438. State Authority to Establish Provider Qualifications The “free choice of provider” provision does not infringe on states’ traditional role of setting “reasonable standards rel ating to the qualifications of providers.” 42 C.F.R. § 431.51(c)(2). States must propose any standards relating to the qualifications of providers during the
2 Page 2 – State Medicaid Director Medicaid state plan approval process , as specified in section 1902(a)(22) of the Act. Because the “free choice of provider” provision guarantees Medicaid beneficiaries the right to see any state’ s authority to willing and “qualified” provider of their choice, this provision limits a s against establish qualification standards, or take unless those action certain a provider, standards or actions are related to the covered medical fitness of the provider to perform — i.e. , its capability to perform the required services in a professionally competent, services safe, legal, and ethical manner — or the abilit y of the provider to appropriately bill for those not include a desire to target a provider services. Such reasons may for or set of providers reasons unrelated to fitness to perform covered services or the adequacy of their billing their . The practices failure of a state to apply otherwise reasonable standards in an evenhanded uch targeting . For instance, if a state were to take certain action s against manner may suggest s , but not other similarly situated providers, it would raise one provider or set of providers questions as to whether the state is impermissibly targeting disfavored providers. Moreover, when invoking standards that are validly related to a provider’s “qualifications,” the “free choic e of provider” provision ensures that a state may not deny Medicaid beneficiaries sufficient basis . A state’s action the right to see the provider of their choice unless there is a against a provider affecting beneficiary access to the provider must be supported by evidence of fraud or criminal action, material non -compliance with relevant requirements, or material issues concerning the fitness to perform covered services or appropriately bill of the provider . T such action against a prov ider without such evidence would not be in for them aking compliance with the free choice of provider requirement. If a state does not have evidence supporting its finding that a provider failed to meet a state standard, that provider remains Medi caid services. 42 C.F.R. § 431.51(b)(1)(i). “qualified to furnish” The “free choice of provider” provision is specific with respect to the free choice of family planning providers. Consistent with the reasonable standards guidance above, states may not deny qualification to family planning providers, or take other action against qualified family planning providers , that affects beneficiary access to those providers — whether individual providers , physician group s or hospital s— solely because they separately s, outpatient clinic family planning services or the full range of legally permissible gynecological and provide 1 obstetric care, including abortion services (not funded by federal Medicaid dollars, consistent with the federal prohibition) , as part of their scope of practice . Conclusion 1 extraordinary Federal Medicaid funding of abortion services is not permitted under federal law except in certain circumstances (in cases of rape, incest, or when the life of the woman would be in danger).
3 Page 3 – State Medicaid Director Pursuant to § 431.51(b states may establish provider standards or take action against )(1 )(i), only (1) based on reasons Medicaid providers that affects beneficiary access to those providers relating to the covered medical services or to appropriately of the provider to perform fitness (2) with supporting evidence and bill for those services, of the provider’s failure to meet the state’s reasonable provider standard s. This is consistent with longstanding CMS policy that Medicaid beneficiaries provided with competent care by qualified providers and have the are same ability to choose among available providers as those with private coverage. the full range of women’s health Providing services neither disqualifies a provider from participating in the Medicaid program, nor is the provision of such services inconsistent with the best interests of the beneficiary , and shall not be grounds for a state’s action against a provi in the Medicaid program. der CMS is available to work closely with each state to ensure compliance with M edicaid’s “free choice of provider” provision while at the same time preserving states’ authority to take appropriate action s against providers in their Medicaid programs. If you have any questions regarding this information, please contact Kirsten Jensen, CMCS Director Division of Benefits -786 and Coverage, 410 -8146. , Sincerely /s/ Vikki Wachino Director cc: National Association of Medicaid Directors National Academy for State Health Policy National Governors Association American Public Human Services Association Association of State Territorial Health Officials Council of State Governments National Conference of State Legislatures