What is a Medicaid spend down? Medicaid, also known as Title XIX, or MO HealthNet in Missouri, is a medical assistance program for low-income people who are elderly (65 years and older), permanently and totally disabled, blind or who meet some other category of eligibility. Some people have so little income that they automatically qualify for Medicaid. However, seniors and people with disabilities, whose incomes exceed the income limit, may qualify for Medicaid if they have “incurred” medical bills that equal or are greater than their “excess” income. The process of subtracting those medical bills from the individual’s income is called “spend down.” For example, a person over 65 is determined eligible for MO HealthNet benefits, but her monthly income exceeds the income limit for MO HealthNet non-spend down by $50. If she incurs medical bills of $50 in a month, the rest of her medical bills will be covered by MO HealthNet until the end of the month. The spend down in this case is the $50 of medical bills she incurs. Who can get spend down? Not everyone. A person must be permanently and totally disabled, blind or at least 65 years of age, have assets of no more than $4,000 if single, or $8,000 if married, and have income which exceeds the Medicaid limit in order to qualify for MO HealthNet spend down. Eligible people living in their own home, apartment, senior housing, congregate housing, etc. are eligible to be placed on a spend-down if they have income over the Medicaid limit. Individuals who are ineligible for vendor or HCB level of care due to a transfer of assets may be eligible for spend down. Individuals with income exceeding HCB income limit, currently $1,370 (changing to $1,388 in January 2021), may be eligible for spend down. How does spend down work? When you have incurred medical bills greater than your excess income, you will receive MO HealthNet coverage from the date you have incurred medical bills equal to or exceeding your spend down amount to the end of the month.. You are responsible for the bills up to the excess amount; MO HealthNet will only pay those bills over the excess amount. Title XIX also permits a State to have a program whereby an individual “pays in” his or her spend down requirement to the State (almost in the nature of a premium). This option, set forth in Section 1903(f)(2) of the Act, permits an individual to pay his or her spend down amount — i.e., the difference between their income and the medical assistance income level — to the State. If the State chooses to establish a pay-in program, as Missouri has, individuals may have a choice between the pay-in option and incurring expenses that will qualify them for MO HealthNet coverage for the month. What types of medical expenses count toward spend down? The bills must be ones which the participants owe for medical services or items for themselves or their spouse if their spouse’s income is counted in the spend down determination, which no other insurance or program is going to pay, for necessary medical services that are recognized under State law and are not subject to payment by a third party, unless the third party is a public program of a State or political subdivision of a State such as Department of Mental Health or Department of Health and Senior Services. Only expenses included in Section 208.152, RSMo can be used to meet spend down. In this section, personal care services are allowed at the state rate; this applies to all charges for personal care services including home health agencies. To “incur” an expense means to be personally responsible to pay for the expense. The Centers for Medicare and Medicaid Services (CMS) Handbook clarifies that the only medical expenses that may be allowed to meet a participant’s monthly spend down are those charges for which the participant is personally responsible. If a participant has a monthly spend down of $300, he/she must personally be responsible for $300 in medical expenses each month before his/her spend down is met. Third Party Payments for Spend-down Can third parties (specifically, providers) pay the spend-down amount to the State? The answer is no. The rules governing incurred expenses state that expenses must be “incurred by the individual or financially responsible relatives, and are not subject to payment by a third party” (unless the third party is a program of the State or one of its subdivisions). The problem with having a provider pay the spend-down amount is that, from CMS’s perspective, the Medicaid applicant’s income remains above the medical assistance level, because he or she has not incurred or paid expenditures that bring his or her income down to the Medicaid level. CMS therefore considers individuals whose spend-down has been paid by a third party not to be Medicaid eligible because he or she may not meet the spend-down requirement. Note that this is not a problem if the spend-down payment is made by a financially responsible relative on the individual’s behalf or if it’s made by a program of the State or one of its subdivisions. In either of those cases, the payment is treated the same as if it had been made by the individual. In the above situation, Medicaid could not reimburse the provider for the incurred expense, as that is the responsibility of the individual. Medicaid rules provide that “[e]xpenses used to meet spend- down liability are not reimbursable under Medicaid.” 42 C.F.R. 435.831(h)(5). Therefore, “[t]o the extent necessary to prevent the transfer of an individual’s spend-down liability to the Medicaid program, States must reduce the amount of provider charges that would otherwise be reimbursable under Medicaid.” Id. Documentation required for spend down. MO HealthNet Eligibility Specialists must obtain documentation of incurred medical expenses. This documentation will be reviewed to determine the accuracy of the invoice or billing statement. How much is spend down amount? The amount of spend down is the extra income that is over the limit to receive Medicaid automatically. The Family Support Division figures out this amount for each person, taking into account the person’s income and living arrangements. Currently the Net Income limit for Elderly and Disabled is 85% of the federal poverty level (Individual – $904, Couple – $1,166). The Net Income limit for Blind is 100% of the federal poverty level (Individual- $1,064 Couple-$1,472). The federal poverty level is adjusted annually. How often does a MO HealthNet participant have to meet spend down? The participant will have to meet the spend down every month unless his/her income and living arrangements have changed so much that he/she qualifies for MO HealthNet without a spend down. To receive MO HealthNet coverage in any month, the participant has to meet the spend down first. How do you know if you qualify for spend down? If you have been denied full coverage under the MO HealthNet for Aged, Blind and Disabled program, the notice MO HealthNet must send you will tell you if you qualify for spend down and, if so, the amount of your monthly spend down.

Missouri state law (RSMO 345.020) prohibits anyone from practicing speech-language pathology without a Missouri license.

RSMO 345.025.1(6) provides: The provisions of sections 345.010 to 345.080 do not apply to an individual who “holds a current valid certificate as a speech-language pathologist issued by the Missouri Department of Elementary and Secondary Education (DESE) and who is an employee of a public school while providing speech-language pathology services in such school system”.

There are three different ways to obtain a speech language pathologist student services certificate from DESE:

A certificate will be issued if the person holds a valid Missouri license from the Board of Healing Arts. This certificate is valid for as long as the license is current. If the license becomes inactive, the certificate is no longer valid. A certificate will be issued if the person completes a Teacher Preparation Program with sufficient credits in speech pathology. This certificate is valid for 99 years. A certificate will be issued if the person has completed a teacher preparation program in another state and holds a valid teaching certificate in speech pathology or something comparable from another state. This certificate is valid for 99 years.

If a speech language pathologist’s certificate was issued based on holding a valid Missouri license and the Missouri license is no longer current, the certificate becomes invalid. As a result, the speech language pathologist’s enrollment in the Missouri Medicaid program will be terminated.

The Missouri Medicaid Audit and Compliance Unit requests that any provider who believes that documentation in support of servicing Missouri Medicaid participants is no longer available, due to extenuating circumstances or unforeseen events, utilize the Attestation of Medical Record Loss or Destruction Form which can be found at:

 

https://mmac.mo.gov/providers/provider-enrollment/provider-enrollment

 

The following may be a useful resource, but is not intended to be a treatise on federal fraud and abuse laws or answer specific legal questions of providers. Rather, it serves as a basic understanding of the federal Anti-Kickback statute (AKS) and Civil Monetary Penalties law (CMPL) as they may apply to providers. MMAC encourages you to consult with your legal counsel for specific advice.

The federal AKS and CMPL are two important tools used by the federal Department of Health and Human Services Office of Inspector General (OIG) to combat health care fraud and abuse. Both the AKS and the CMPL apply to transactions reimbursed by Federal health care programs, including Medicare and Medicaid. The AKS is a criminal law, while the CMPL is a civil law. Violations of the AKS include administrative penalties, fines of up to $50,000 per kickback plus three times the amount of the kickback, and potential jail time. A violation of the AKS is also an automatic violation of the CMPL. Violations of the CMPL result in administrative penalties and fines of $10,000 to $50,000 per violation. Administrative penalties for both can, and in some cases must, result in exclusion from participation in Federal health care programs.

The AKS prohibits the knowing and willful payment and receipt of remuneration to induce or reward patient referrals or the generation of business involving any item or service payable by Federal health care programs. This is true where even one purpose of the remuneration is to reward the referral of services or induce further referrals. “Remuneration” for the purposes of the AKS includes the transfer of anything of value, directly or indirectly, overtly or covertly, in cash or in kind. This definition includes money, but can also include free rent, grass-cutting, shopping, transportation, and waiver of co-payments or co-insurance for Federal health care program beneficiaries. Congress and the Secretary of Health and Human Services have developed protections for certain arrangements that have come to be known as safe-harbors. Arrangements that might otherwise be illegal under the broad proscription of the AKS can be protected by meeting the requirements set forth in the safe-harbors.

The CMPL addresses, among other things, the transfer of or offer to transfer remuneration to a Medicare or state health care program (including Medicaid) beneficiary. Penalties can result where the benefactor knows or should know that remuneration is likely to influence the beneficiary to order or receive from a particular provider, practitioner, or supplier any item or service for which payment may be made, in whole or in part, by Medicare or a state health care program (including Medicaid). “Remuneration” for the purposes of the CMPL includes transfers of items or services for free or for other than fair market value. It can also include waiver of even part of the beneficiary’s co-insurance or deductible amounts. It does not include anything that promotes access to care and poses a low risk of harm to patients and Federal health care programs. The OIG has previously taken the position that nominal incentives are not prohibited by the CMPL and defined nominal as no more than $10 per item or $50 total on an annual basis.

Federal health care fraud and abuse laws like the AKS and CMPL seek to reduce the overutilization of services, reduce government health care costs caused by the overutilization of services for Federal health care program beneficiaries, and shift the focus of medical care to what is most medically appropriate for the patient rather than what is most lucrative for the health care provider. Because of the potential penalties associated with violations of the AKS and CMPL, awareness of these laws is vital for health care providers. Compliance with the AKS and CMPL is highly fact-specific, and so health care providers are encouraged to consult with legal counsel when questions arise.

Limitations

The limitations applicable to this Memorandum include the following:

This Memorandum has no application to, and cannot be relied upon by, any individual or entity and does not affect the legal rights of, or procedures available to, the public or any segment thereof. This Memorandum may not be introduced into evidence in any matter involving an entity or individual.