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CMS Letter Addresses ACA's Maintenance of Effort Provisions

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CMS Letter Addresses ACA's Maintenance of Effort Provisions

August 8, 2011

On August 5, the Centers for Medicare and Medicaid Services (CMS) released a letter to State Medicaid Directors addressing the Affordable Care Act’s maintenance of effort (MOE) provisions relating to institutional care and home and community-based services (HCBS). The letter includes a Q&A enclosure to provide additional guidance to states.


While the MOE provisions of the ACA require that states maintain eligibility standards, methodologies and procedures, the MOE provisions do not affect a state’s ability to manage waiver costs by modifying waiver benefits, rates or introducing new waiver service-specific medical necessity criteria or utilization controls that do not affect individuals’ eligibility for Medicaid.


Although states could alter their criteria for receipt of specific HCBS services, states should consider their impact on ADA and Olmstead obligations. States that do not renew a waiver or that make modifications that have the effect of constricting waiver eligibility must provide CMS with a transition/phase-out plan that describes steps to ensure minimal adverse impact on individuals served. The plan should be submitted to CMS 60 days before waiver expiration.


If a state seeks to modify waiver programs in ways that would restrict eligibility standards, methodologies or procedures before the demonstration approval period has expired, that would not be consistent with the MOE provisions.


States continue to have opportunities to make adjustments to services within their HCBS waivers that are not related to eligibility and thus do not implicate MOE. States also have flexibility to modify their HCBS when a waiver authorizing such services expires.