C.F.R. » Title 42 » CHAPTER IV—CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER C—MEDICAL ASSISTANCE PROGRAMS › PART 431—STATE ORGANIZATION AND GENERAL ADMINISTRATION › Subpart B—General Administrative Requirements

42 C.F.R. § 431.55

Waiver of other Medicaid requirements

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(a) Statutory basis. Section 1915(b) of the Act authorizes the Secretary to waive most requirements of section 1902 of the Act to the extent he or she finds proposed improvements or specified practices in the provision of services under Medicaid to be cost effective, efficient, and consistent with the objectives of the Medicaid program. Sections 1915 (f) and (h) prescribe how such waivers are to be approved, continued, monitored, and terminated. Section 1902(p)(2) of the Act conditions FFP in payments to an entity under a section 1915(b)(1) waiver on the State's provision for exclusion of certain entities from participation.

(b) General requirements. (1) General requirements for submittal of waiver requests, and the procedures that CMS follows for review and action on those requests are set forth in § 430.25 of this chapter.

(2) In applying for a waiver to implement an approvable project under paragraph (c), (d), (e), or (f) of this section, a Medicaid agency must document in the waiver request and maintain data regarding:

(i) The cost-effectiveness of the project;

(ii) The effect of the project on the accessibility and quality of services;

(iii) The anticipated impact of the project on the State's Medicaid program and;

(iv) Assurances that the restrictions on free choice of providers do not apply to family planning services.

(3) No waiver under this section may be granted for a period longer than 2 years, unless the agency requests a continuation of the waiver.

(4) CMS monitors the implementation of waivers granted under this section to ensure that requirements for such waivers are being met.

(i) If monitoring demonstrates that the agency is not in compliance with the requirements for a waiver under this section, CMS gives the agency notice and opportunity for a hearing.

(ii) If, after a hearing, CMS finds an agency to be out of compliance with the requirements of a waiver, CMS terminates the waiver and gives the agency a specified date by which it must demonstrate that it meets the applicable requirements of section 1902 of the Act.

(5) The requirements of section 1902(s) of the Act, with regard to adjustments in payments for inpatient hospital services furnished to infants who have not attained age 1 and to children who have not attained age 6 and who receive these services in disproportionate share hospitals, may not be waived under a section 1915(b) waiver.

(c) Case-management system. (1) Waivers of appropriate requirements of section 1902 of the Act may be authorized for a State to implement a primary care case-management system or specialty physician services system.

(i) Under a primary care case-management system the agency assures that a specific person or persons or agency will be responsible for locating, coordinating, and monitoring all primary care or primary care and other medical care and rehabilitative services on behalf of a beneficiary. The person or agency must comply with the requirements set forth in part 438 of this chapter for primary care case management contracts and systems.

(ii) A specialty physician services system allows States to restrict beneficiaries of specialty services to designated providers of such services, even in the absence of a primary care case-management system.

(2) A waiver under this paragraph (c) may not be approved unless the State's request assures that the restrictions—

(i) Do not apply in emergency situations; and

(ii) Do not substantially impair access to medically necessary services of adequate quality.

(d) Locality as central broker. Waivers of appropriate requirements of section 1902 of the Act may be authorized for a State to allow a locality to act as a central broker to assist beneficiaries in selecting among competing health care plans. States must ensure that access to medically necessary services of adequate quality is not substantially impaired.

(1) A locality is any defined jurisdiction, e.g., district, town, city, borough, county, parish, or State.

(2) A locality may use any agency or agent, public or private, profit or nonprofit, to act on its behalf in carrying out its central broker function.

(e) Sharing of cost savings. (1) Waivers of appropriate requirements of section 1902 of the Act may be authorized for a State to share with beneficiaries the cost savings resulting from the beneficiaries' use of more cost-effective medical care.

(2) Sharing is through the provision of additional services, including—

(i) Services furnished by a plan selected by the beneficiary; and

(ii) Services expressly offered by the State as an inducement for beneficiaries to participate in a primary care case-management system, a competing health care plan or other system that furnishes health care services in a more cost-effective manner.

(f) Restriction of freedom of choice—(1) Waiver of appropriate requirements of section 1902 of the Act may be authorized for States to restrict beneficiaries to obtaining services from (or through) qualified providers or practitioners that meet, accept, and comply with the State reimbursement, quality and utilization standards specified in the State's waiver request.

(2) An agency may qualify for a waiver under this paragraph (f) only if its applicable State standards are consistent with access, quality and efficient and economic provision of covered care and services and the restrictions it imposes—

(i) Do not apply to beneficiaries residing at a long-term care facility when a restriction is imposed unless the State arranges for reasonable and adequate beneficiary transfer.

(ii) Do not discriminate among classes of providers on grounds unrelated to their demonstrated effectiveness and efficiency in providing those services; and

(iii) Do not apply in emergency circumstances.

(3) Demonstrated effectiveness and efficiency refers to reducing costs or slowing the rate of cost increase and maximizing outputs or outcomes per unit of cost.

(4) The agency must make payments to providers furnishing services under a freedom of choice waiver under this paragraph (f) in accordance with the timely claims payment standards specified in § 447.45 of this chapter for health care practitioners participating in the Medicaid program.

(g) [Reserved]

(h) Waivers approved under section 1915(b)(1) of the Act—(1) Basic rules. (i) An agency must submit, as part of it's waiver request, assurance that the entities described in paragraph (h)(2) of this section will be excluded from participation under an approved waiver.

(ii) FFP is available in payments to an entity that furnishes services under a section 1915(b)(1) waiver only if the agency excludes from participation any entity described in paragraph (h)(2) of this section.

(2) Entities that must be excluded. The agency must exclude an entity that meets any of the following conditions:

(i) Could be excluded under section 1128(b)(8) of the Act as being controlled by a sanctioned individual.

(ii) Has a substantial contractual relationship (direct or indirect) with an individual convicted of certain crimes, as described in section 1128(b)(8)(B) of the Act.

(iii) Employs or contracts directly or indirectly with one of the following:

(A) Any individual or entity that, under section 1128 or section 1128A of the Act, is precluded from furnishing health care, utilization review, medical social services, or administrative services.

(B) Any entity described in paragraph (h)(2)(i) of this section.

(3) Definitions. As used in this section, substantial contractual relationship means any contractual relationship that provides for one or more of the following services:

(i) The administration, management, or provision of medical services.

(ii) The establishment of policies, or the provision of operational support, for the administration, management, or provision of medical services.

[56 FR 8847, Mar. 1, 1991, as amended at 59 FR 4599, Feb. 1, 1994; 59 FR 36084, July 15, 1994; 67 FR 41094, June 14, 2002]
Notes of Decisions
Cited in 10 cases, 1985–2014 · leading case: The Arc of California v. Toby Douglas, 757 F.3d 975 (9th Cir. 2014).
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The Arc of California v. Toby Douglas, 757 F.3d 975 (9th Cir. 2014). “§ 1396n(b) (emphasis added); see also 42 C.F.R. § 431.55 (a) (“Section 1915(b) of the Act authorizes the Secretary to waive most requirements of section 1902 of the Act to the extent he or she finds proposed improvements or specified practices in the provision of services under…”
Hawkins v. El Paso First Health Plans, Inc., 214 S.W.3d 709 (Tex. App. 2007). “2006) (authorizing waiver); 42 C.F.R. § 431.55 (explaining section 1915(b) waivers).”
Pennsylvania Pharmacists Ass'n v. Commonwealth, Dep't of Pub. Welfare, 733 A.2d 666 (Pa. Commw. Ct. 1999). · cites it 2× “§ 1396a in general that an agency such as DPW must document in its request and maintain data regarding “[t]he effect of the project on the accessibility and quality of services_” 42 C.F.R. § 431.55 (b)(2)(ii). DPW notes that the Health Care Financing Administration must monitor…”
Stanton-Negley Drug Co. v. Dep't of Pub. Welfare, 943 A.2d 377 (Pa. Commw. Ct. 2008). · cites it 2× “§ 1396n(b)(4); 42 C.F.R. § 431.55 (b)(2), and by granting the waiver, HHS determined that restricting the MA recipients’ freedom of choice of providers was warranted.”
Kansas Hosp. Ass'n v. Whiteman, 835 F. Supp. 1556 (D. Kan. 1993). · cites it 2× “§ 13960 (a)(3), (b)(3); 42 C.F.R. § 431.55 (g). The court interprets the legislative history to mean that Congress generally approves and even encourages participating states to impose required copayments, except in specified circumstances, for the purpose of encouraging…”
Solter v. Health Partners of Philadelphia, Inc., 215 F. Supp. 2d 533 (E.D. Pa. 2002). “” 42 C.F.R. § 431.55 (c)(2)(ii), (d). In permitting an MCO to furnish medical services, the “State must ensure that each MCO .”
Kearse v. Dep't of Health & Rehab., 474 So. 2d 819 (Fla. 1st DCA 1985). “65 does not provide for reimbursement for nonemergency but medically necessary services without prior agency approval as required by 42 CFR § 431.55 (c). Accordingly, we find invalid those portions of proposed FAC Rule 10C-7.”
Young v. Jesson, 796 N.W.2d 158 (Minn. Ct. App. 2011). · cites it 4× “See 42 C.F.R. § 431.55 (2010). The free-choice provision of the federal Medicaid statute — which is at the heart of this dispute — requires that a state medical-assistance plan allow a Medicaid recipient to have “free choice” in obtaining services from a qualified provider who…”
Albert Hawkins, Exec. Comm'r of the Texas Health & Human Servs. Comm'n The Texas Health & Human Servs. Comm'n Anne Sapp, Acting Comm'r of the Texas Dep't of Human Servs. & the Texas Dep't of Human Servs. v. El Paso First Health Plans, Inc. & Cmty. Health Choice, Inc. (Tex. App. 2007). “2006) (authorizing waiver); 42 C.F.R. § 431.55 (explaining section 1915(b) waivers).”
Albert Hawkins, Exec. Comm'r of the Texas Health & Human Servs. Comm'n The Texas Health & Human Servs. Comm'n Anne Sapp, Acting Comm'r of the Texas Dep't of Human Servs. & the Texas Dep't of Human Servs. v. El Paso First Health Plans, Inc. & Cmty. Health Choice, Inc. (Tex. App. 2007). “2006) (authorizing waiver); 42 C.F.R. § 431.55 (explaining section 1915(b) waivers).”
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