Two patients, one rule

The same rule, one step at a time

Each step starts with what the federal rule says, then shows what happens to Diana and to Patricia. Where a step does not happen for one of them, or where CMS’s example ends, the card says so.

1. 1

   Step 1: Diagnosis

   The ruleA diagnosis does not exclude anyone on its own. The condition must fit a frailty category, and it must significantly impair the person’s ability to meet the requirement.

   42 CFR 435.554(c)(5)(i)

   Diana, 47

   Diana was recently diagnosed with stage IIIC breast cancer in her right breast (HER2-positive, hormone receptor-negative invasive ductal carcinoma). The tumor was 4.2 cm, and four lymph nodes in her right armpit were involved. Before this, her medical history was limited.

   She had chemotherapy (paclitaxel, trastuzumab and pertuzumab), then a right modified radical mastectomy that also removed the lymph nodes in her armpit. Cancer remained after surgery, so she now needs chemoradiation, with transportation to appointments 3 to 5 days a week.

   She reports significant fatigue, lymphedema of her right arm that needs a compression garment to the chest wall, and neuropathy in her hands and feet from chemotherapy.

   CMS guidance, page 27

   Patricia, 54

   Ten years ago Patricia was diagnosed with stage IIA breast cancer in her left breast (hormone receptor-positive, HER2-negative invasive ductal carcinoma).

   She had a left lumpectomy with a sentinel lymph node biopsy, then radiation, and started anastrozole, a hormone therapy. She finished anastrozole five years ago, with no recurrence found.

   Her latest yearly mammogram showed no active disease. She sees her oncologist once a year and is up to date on cervical and colorectal cancer screening, a bone density scan, routine blood tests and her yearly primary care visit.

   CMS guidance, page 28

2. 2

   Step 2: Claims check

   The ruleThe state must try to confirm frailty from information it already has, including claims from the past 12 months, whether paid, pended or denied. If that information is enough, it may not ask the person for documents.

   42 CFR 435.557(c)(1)(i) and (f)(1)

   Diana

   Tier 1: confirmed from her claims

   Medical claims

   • ICD-10-CM C77.3 Secondary and unspecified malignant neoplasms (metastatic cancer) of the axilla and upper limb lymph nodes. CMS marks this code as qualifying on its own.

   Pharmacy claims

   • J9267 Paclitaxel
   • J9355 Trastuzumab
   • J9307 Pertuzumab (as CMS gives it; in the HCPCS code set, pertuzumab is J9306 and J9307 is pralatrexate)

   CMS’s determination“Tier 1 medical frailty based on the ICD-10-CM code, which demonstrates a recent diagnosis of advanced breast cancer.”

   Her claims are enough. The state confirms she is medically frail without asking her for anything.

   Codes from 12 months of claims, as CMS lists them (“not exhaustive”). CMS guidance, page 27

   Patricia

   Tier 3: cannot be decided from her claims

   Medical claims

   • ICD-10-CM Z85.3 Personal history of malignant neoplasm of breast
   • ICD-10-CM Z13.820 Encounter for screening for osteoporosis
   • CPT 99213 Office visit, established patient, moderate complexity (as CMS gives it; in CPT, 99213 means a low level of medical decision making, and moderate is 99214)
   • CPT 77067 Screening mammography, bilateral
   • CPT 80061 Lipid panel
   • CPT 83036 Hemoglobin A1c

   Pharmacy claims

   • NDC 63044-401-01 Vitamin D supplement

   CMS’s determination“Medical frailty cannot be determined based on administrative data as severity is indeterminate or not likely. Manual review would be required before the beneficiary could be classified as medically frail based on breast cancer diagnosis.”

   Her claims record a history of breast cancer and routine care. They cannot settle whether she is medically frail, so her case goes to manual review.

   Codes from 12 months of claims, as CMS lists them (“not exhaustive”). CMS guidance, page 28

3. 3

   Step 3: Notice

   The ruleIf the state cannot confirm that a person meets the requirement or is excluded, it must send a notice of noncompliance. The notice must say which months are checked, how to show compliance or an exclusion, the deadline, and how to send information, including online, by phone, by mail or in person.

   42 CFR 435.558(a) and (c); 435.907(a)

   Diana

   Does not happen for Diana

   There is no notice of noncompliance. The state confirmed her exclusion from its own information, so it may not ask her for documents.

   The rule still requires the state to tell her its decision, including that she is excluded.

   42 CFR 435.556(d) and 435.557(c)(1)(i)

   Patricia

   Manual review

   CMS says a Tier 3 case should start a manual review, in which the state may ask her for documents: for example, health records such as treatment records and progress notes, or documentation from her health care provider.

   Instead of documents, the state may accept a statement she signs under penalty of perjury. Until 1 January 2028 it may do so each time it checks. From then on it may do so only once while she stays enrolled, and at her next regular renewal it must confirm frailty from its records or from documents.

   If the state cannot confirm from its own information that she is excluded, or that she meets the requirement another way, the rule requires a notice of noncompliance that says what to send and by when. CMS’s example does not say whether she works or qualifies another way.

   CMS guidance, page 20; 42 CFR 435.557(f)(1)(i) and (ii); 435.558(a) and (c)

4. 4

   Step 4: 30 days

   The ruleA notice of noncompliance gives 30 calendar days to respond, starting the day it is received. It counts as received 5 days after the date on it, unless the person shows it arrived later. For someone already enrolled, Medicaid continues during this time.

   42 CFR 435.558(a)(2), (a)(3) and (c)(4)

   Diana

   Does not apply to Diana

   With no notice of noncompliance, there is no 30-day deadline.

   42 CFR 435.558(a)

   Patricia

   If the state sends a notice

   • The date on the notice
   • The next 4 days
   • 5 days after that date: it counts as received, day 1 of 30
   • Day 30, the last day to respond

   She has 30 days from receiving it to show that she is medically frail, that she meets the requirement another way, or that another exclusion applies.

   42 CFR 435.558(a)(2) and (c)(4)

5. 5

   Step 5: Outcome

   The ruleIf the person shows compliance or an exclusion in time, the requirement is met or does not apply. If not, before ending coverage the state must check every other way the person might qualify for Medicaid, and give advance written notice and the right to a fair hearing.

   42 CFR 435.558(a)(2) and (d)

   Diana

   Excluded

   Diana is excluded as medically frail, so she does not have to show 80 hours of work or other activities.

   Because her status was confirmed from the state’s information, the state must check it again at least every 12 months.

   42 CFR 435.554(b) and 435.557(f)(1)(iii)

   Patricia

   Not given by CMS

   CMS’s example ends at manual review. It does not say what she sends or what the state decides. The rule sets out what happens next:

   • If she shows that she is medically frail, that she meets the requirement another way or that another exclusion applies, the requirement is met or does not apply to her.
   • If she does not, the state must check every other way she might qualify for Medicaid. If none applies, it must give advance written notice and fair hearing rights, and end her coverage no later than the end of the month after the month the 30 days end.
   • If her coverage ends because she did not send the information, and she sends it within 90 days (longer in some states), the state must reconsider without a new application. She can also reapply at any time; the state may not restrict reapplying.

   42 CFR 435.558(d), (e) and (f); 435.916(a)(3)(iii)