42 U.S.C. § 1396u–7 — State flexibility in benefit packages

(a) State option for benchmark benefits. (1)(A) Despite the statewideness rule in section 1396a(a)(1), the comparability rule in section 1396a(a)(10)(B), and other directly contrary provisions, and subject to (E) and (F), a State may amend its plan to give medical assistance to groups it specifies through benchmark coverage under (b)(1) or benchmark-equivalent coverage under (b)(2). For a person described in section 1396d(a)(4)(B) who qualifies under section 1396a(a)(10) and (17), the coverage must include the items and services in section 1396d(a)(4)(B), the early and periodic screening, diagnostic, and treatment services defined in section 1396d(r), provided as section 1396a(a)(43) requires. (B) The State may use this option only for a person eligible under section 1396a(a)(10)(A)(i)(VIII) or under an eligibility category established in the plan by February 8, 2006. (C) The State may add benefits it specifies. (D) Premium payments for this coverage count as payments of other insurance premiums described in the third sentence of section 1396d(a). (E) This paragraph does not (i) require an issuer of benchmark or benchmark-equivalent coverage to offer the required (A)(ii) services, (ii) prevent such an issuer from offering them, or (iii) change a child’s entitlement to section 1396d(a)(4)(B) and (r) care and services provided under section 1396a(a)(43), whether through that coverage or otherwise. (F) The State cannot provide assistance by enrolling someone in this coverage unless the package, equivalent coverage, or State, subject to section 1396b(i)(9) and consistent with section 1396a(a)(4), (i) ensures necessary transportation to and from providers and (ii) describes how it will ensure it. (2)(A) Except for (B), a State may require a full-benefit eligible person, defined in (C), within a group to receive benefits through this coverage, and may apply that requirement to one or more groups. (B) It may not impose that requirement on: (i) a pregnant woman whom section 1396a(a)(10)(A)(i) requires the plan to cover; (ii) a person qualifying because blind or disabled, including someone eligible under section 1396a(e)(3), whether or not eligible for SSI on that basis; (iii) a person entitled to any subchapter XVIII benefit; (iv) a terminally ill person receiving Medicaid hospice benefits; (v) an inpatient in a hospital, nursing facility, intermediate-care facility for people with intellectual disabilities, or other medical institution who must spend all but a minimal personal-needs amount of income on medical care to receive institutional services; (vi) a medically frail person or one with special medical needs identified under the Secretary’s regulations; (vii) a person qualifying, based on medical condition, for long-term-care assistance described in section 1396p(c)(1)(C); (viii) a person for whom foster-care child-welfare services or foster-care/adoption assistance is available, regardless of age, or who qualifies under section 1396a(a)(10)(A)(i)(IX); (ix) a person qualifying because eligible for assistance under a State plan funded under part A of subchapter IV; (x) a woman receiving assistance through the breast-or-cervical-cancer program; or (xi) a limited-services person who qualifies under section 1396a(a)(10)(A)(ii)(XII), or who is not a qualified alien under section 1641 of title 8 and receives emergency-medical-condition care under section 1396b(v). (C)(i) A “full-benefit eligible individual” is, for a State and month, someone the State finds eligible for assistance for all section 1396d(a) services covered by the State plan for that month under section 1396a(a)(10)(A), or under another full-benefit category determined by the Secretary. (ii) The term excludes someone eligible under section 1396a(a)(10)(C), because of section 1396a(f), or otherwise because income is reduced by medical or remedial-care costs. (b) Benchmark packages. (1) The following are benchmark coverage, subject to paragraphs (5) and (6): (A) the standard Blue Cross/Blue Shield preferred-provider option service-benefit plan described and offered under section 8903(1) of title 5; (B) a health-benefits plan offered and generally available to State employees in the State; (C) the plan offered by an HMO, as defined in section 300gg–91(b)(3), that has the largest insured commercial, non-Medicaid enrollment of covered lives among that HMO’s plans in the State; and (D) other health-benefits coverage the Secretary, on a State application, finds appropriate for the proposed population. (2) Benchmark-equivalent coverage must, subject to paragraphs (5) and (6), (A) cover each basic category: inpatient and outpatient hospital care; physician surgery and medical services; laboratory and x-ray services; prescription drugs; mental-health services; well-baby and well-child care including age-appropriate immunizations; and other preventive services the Secretary designates; (B) have aggregate actuarial value at least equivalent to one benchmark package; and (C) for vision and hearing services covered by the chosen package, have at least 75 percent of that package’s actuarial value for each category. (3) An actuarial report and opinion must be prepared by an American Academy of Actuaries member using generally accepted principles and methods, standardized utilization and prices, a representative standardized population, the same principles and factors when comparing coverage or service categories, no adjustment for delivery or cost-control/utilization methods, and the increase in value resulting from limits on cost-sharing. The actuary must state the standardized set and population used. (4) A person may not be enrolled unless the coverage or other arrangement gives access to rural-health-clinic and federally qualified health-center services described in section 1396d(a)(2)(B) and (C), and pays for them as section 1396a(bb) requires. (5) From January 1, 2014, every benchmark package and equivalent coverage must provide at least the essential health benefits in section 18022(b); from January 1, 2022, it must also cover routine patient costs for items and services connected with a qualifying clinical trial, as defined in section 1396d(gg). (6)(A) If a non-Medicaid-managed-care issuer offers medical/surgical and mental-health or substance-use-disorder benefits, it must ensure that financial requirements and treatment limits for the latter comply with section 300gg–26(a) as they apply to a group health plan. For paragraph (8) of that section, compliance is satisfied if the State plan or coverage complies with subpart C of part 440 of title 42, Code of Federal Regulations, or a successor rule. (B) The specified early-screening and treatment services for a person described in section 1396d(a)(4)(B) and covered under section 1396a(a)(10)(A) are deemed to satisfy (A). (7) Coverage must include family-planning services and supplies for every person described in section 1396d(a)(4)(C), as that section requires. (8) During the period beginning March 11, 2021, and ending on the last day of the first calendar quarter beginning one year after the emergency period in section 1320b–5(g)(1)(B) ends, coverage must include, without a deductible, cost-sharing, or similar charge, (A) COVID-19 vaccines and their administration and (B) COVID-19 testing and treatment, specialized equipment and therapies including preventive therapies, and, for someone diagnosed with or presumed to have COVID-19, treatment of a condition that may seriously complicate COVID-19 treatment if otherwise covered by the plan or waiver. (c) Publication. When the Secretary approves a State amendment providing benchmark benefits under (a) and (b), the Secretary must, on that approval date, publish on the CMS website a list of the subchapter provisions found inapplicable to allow the amendment and the reason for each decision, and must publish the list in the Federal Register no later than 30 days later.