MACPAC Sends Medicaid IMD Report to Congress

As earlier reported, the Medicaid and CHIP Access and Payment Commission (MACPAC) was charged with identifying the extent to which states are using Institutions for Mental Diseases (IMDs) under various Medicaid authorities, the services they offer, and how they are licensed, regulated and paid.  MACPAC delivered their report to Congress on December 30, and released it to the public on January 6.

The report includes general information collected from all states, and details for seven selected states.  Given the scope of the study outlined in the SUPPORT Act (the large opioid response law passed in 2018), the report does not address improper payments for services delivered to Medicaid beneficiaries residing in excluded IMDs, or the comments that NACBH submitted to raise the visibility of how the IMD exclusion relates to children’s services.  Even within the limited scope – the legitimate use of IMDs – MACPAC decided to exclude “any mental health facility serving primarily as a residential treatment center for children, and any facility that reported serving only children.”

The explanation given for not including children’s providers in the study is that “there is no way to determine whether a facility is a psychiatric residential treatment facility (PRTF).”  We know of several ways to determine whether a facility is a PRTF, albeit not quick or easy, and are considering how to most effectively follow up on this information gap pursuant to our Medicaid and child welfare policy goals.

There are also a few statements in the report that are not entirely accurate, whether a result of imperfect understanding or a desire for a more readable product.  While we appreciate how complicated the IMD exclusion is, more precise language would have been helpful in some areas, in order not to perpetuate common misunderstandings that have made it difficult to improve the federal policy.

There were some useful and some interesting observations:

• “Identifying IMDs is challenging because the IMD exclusion encompasses multiple types of facilities.  In fact, guidance from CMS indicates that an IMD could be any institution that meets certain criteria.  A facility’s designation as an IMD can also change over time based on its patient mix.”

• “In reviewing a draft of this report, CMS officials commented that it is up to states to determine whether a facility is an IMD and the regional office does not involve itself in making that determination.”  [We would add:  What is not clear is whether/when CMS later audits or questions a state’s IMD determinations.]

• Other than for hospitals and PRTFs, there are no federal standards for other MH treatment facilities or for most SUD treatment facilities.

• Regarding 1115 waivers, a couple of interesting statements:  “All Section 1115 demonstrations allow HHS to temporarily waive some requirements of federal Medicaid law in a specific state so that state can test novel approaches to furnishing medical assistance to low-income individuals.  This means that states must conduct a genuine experiment of some kind.”  And “Section 1115 authorizes HHS to waive only those requirements found in Section 1902 of the Social Security Act.  Requirements found outside of Section 1902 cannot be waived.  The IMD exclusion is contained in Section 1905; for this reason and others, some have suggested that the Secretary does not have authority to waive this provision.”

 Please email Pat Johnston for more detail or discussion.  All feedback is very welcome!