Does Arkansas Act 393 of 2023 require Medicaid to cover continuous glucose monitors only as a pharmacy benefit?
Plain-English summary
Continuous glucose monitors (CGMs) are wearable devices that continuously measure blood-sugar levels for people with diabetes. They can be obtained through two distinct supply chains: a durable medical equipment (DME) provider (which delivers the device as a piece of medical equipment, typically with insurance covering it under a "medical" benefit) or a pharmacy (which dispenses the sensor and transmitter components like a prescription, typically covering it under a "pharmacy" benefit, with associated rebate eligibility).
Two recent Arkansas statutes shape Arkansas Medicaid's coverage:
Act 643 of 2021 (formerly A.C.A. § 20-7-142) required Medicaid to cover CGMs for eligible beneficiaries. DHS implemented Act 643 by approving CGM coverage only through DME providers (medical benefit), with no pharmacy-benefit option.
Act 393 of 2023 repealed § 20-7-142, recodified the CGM coverage requirement at § 20-77-148, and added a new subsection (c) requiring Medicaid to "allow the beneficiary to obtain a continuous glucose monitor through a prescription at a pharmacy and be eligible for rebates as a pharmacy benefit."
After Act 393 passed, DHS proposed a new rule that would limit CGMs to a pharmacy-only benefit (with a narrow exception for Medicare Part B beneficiaries who would still get them as DME). Representative Brown asked whether Act 393 actually requires the pharmacy-only approach DHS was proposing.
The AG's answer is no. The word "allow" in Act 393 means "absence of opposition" or "refraining from a proscription." It is permissive, not preemptive. Act 393 says Medicaid must allow pharmacy-benefit coverage; it does not say Medicaid must allow only pharmacy-benefit coverage. The plain-meaning reading leaves room for dual coverage (both pharmacy benefit and medical benefit, with the patient or prescriber choosing the path).
The AG's second question addressed whether dual coverage is permissible under Arkansas Medicaid law. Yes, but it requires:
- State Plan Amendment to CMS. DHS must submit a Medicaid State Plan Amendment (under 42 C.F.R. Part 430, Subpart B) to the Centers for Medicare and Medicaid Services and obtain CMS approval.
- Rulemaking. State Plan Amendments must be promulgated under the Administrative Procedure Act (A.C.A. § 25-15-201 et seq.) after legislative review and approval (A.C.A. § 10-3-309).
DHS had already received CMS approval for SPA 21-0015 (covering CGMs as DME under Act 643). To add pharmacy-benefit coverage (whether alone or in addition to DME coverage), DHS must submit a new SPA and follow APA rulemaking procedure.
A footnote notes that DHS announced it was postponing the proposed rule's effective date to April 1, 2024 to "better assess the concerns and options proposed in public comments," and that AFMC (the Arkansas Foundation for Medical Care) would continue reviewing DME requests for CGMs in the meantime.
What this means for you
Medicaid beneficiaries with diabetes
If you are an Arkansas Medicaid beneficiary using a CGM, the AG's view is that the law does not force you to switch from a DME supply chain to a pharmacy supply chain. DHS's proposed rule that would have done so was based on a misreading of Act 393 according to this opinion.
What the law actually requires under Act 393: Medicaid must allow you to get your CGM through a pharmacy as a pharmacy benefit if that is what you and your prescriber want. What it does not require: forcing everyone onto the pharmacy supply chain to the exclusion of DME.
Watch DHS's rulemaking process. If DHS finalizes a pharmacy-only rule, it would be doing more than Act 393 requires. The AG's opinion provides a basis for challenging that interpretation. Consult with your prescriber about whether the pharmacy supply chain or the DME supply chain works better for your specific device, brand, and treatment plan.
Pharmacists
Act 393 mandates Medicaid coverage of CGMs as a pharmacy benefit. Once DHS implements the change through a State Plan Amendment, you will be able to dispense CGM sensors and transmitters to Medicaid beneficiaries with associated reimbursement. Track DHS's rulemaking timeline.
Durable medical equipment providers
The AG's reading preserves your role as a CGM supply channel for Arkansas Medicaid beneficiaries, even after Act 393. Watch DHS's rulemaking. If DHS attempts to finalize a pharmacy-only rule, that rule may exceed the AG's statutory interpretation and would benefit from public comment opposing the exclusionary approach.
Healthcare attorneys
This opinion supplies a clean statutory-interpretation argument: "allow" is permissive, not preemptive, under Tollett v. Wilson's plain-meaning rule. If a client (a DME supplier, a Medicaid beneficiary, or a Medicaid managed-care entity) wants to challenge a pharmacy-only DHS rule as exceeding Act 393, this opinion is your starting point.
The procedural framework (CMS State Plan Amendment plus APA rulemaking with legislative review) is also useful. Any DHS rule limiting CGM coverage must satisfy both requirements.
State legislators
If your view is that Act 393 was supposed to require pharmacy-only coverage, this opinion suggests a follow-up legislative effort would be needed. The current language ("allow…as a pharmacy benefit") permits dual coverage. A successor act would need to use mandatory or exclusive language.
If your view is that Act 393 was supposed to expand options without contracting them, the AG's reading aligns with that intent and DHS's pharmacy-only proposal would not.
Patient advocates
The proposed DHS rule was a meaningful concern for many Arkansas diabetes patients. The AG's reading provides legal support for the position that Medicaid coverage should remain available through both channels, with patient and prescriber choosing.
Common questions
What is a continuous glucose monitor?
A wearable medical device that continuously measures blood-sugar levels through a small sensor inserted under the skin, transmitting readings to a receiver or smartphone. Modern devices (Dexcom, FreeStyle Libre) are widely prescribed for Type 1 and Type 2 diabetes management.
Why does the supply channel matter?
Different supply channels have different reimbursement structures, different patient cost shares, different prescription processes, and different device availability. Some patients prefer DME supply because the equipment side handles training, troubleshooting, and replacement. Others prefer pharmacy supply because pickup is faster and copays may be lower. Restricting to one channel reduces patient choice.
What is a Medicaid State Plan Amendment?
A formal change to a state's Medicaid plan that must be submitted to CMS for approval. SPAs are how states modify covered benefits, payment rates, eligibility criteria, and similar policies. Without an approved SPA, a state cannot operationalize a coverage change.
What is Act 643 of 2021?
Arkansas's first CGM coverage mandate, requiring Medicaid to cover CGMs for eligible beneficiaries. DHS implemented Act 643 with SPA 21-0015 in January 2022, providing DME coverage only.
What did DHS do after this opinion?
The AG's footnote notes DHS postponed the effective date of its proposed rule to April 1, 2024 and was reconsidering options. Track DHS's official rulemaking docket for the actual outcome.
Does the answer change if I have Medicare Part B?
The proposed DHS rule had a carve-out for Medicare Part B beneficiaries (who would continue receiving CGMs as DME). The AG's analysis does not turn on this distinction; it interprets Act 393 generally. Medicare Part B's separate federal coverage rules govern that question.
Background and statutory framework
Act 643 of 2021 (former A.C.A. § 20-7-142). Required Arkansas Medicaid to cover CGMs for eligible beneficiaries.
Act 393 of 2023 (codified at A.C.A. § 20-77-148). Repealed § 20-7-142, recodified the CGM mandate, and added subsection (c): "Coverage for a continuous glucose monitor under the Arkansas Medicaid Program shall allow the beneficiary to obtain a continuous glucose monitor through a prescription at a pharmacy and be eligible for rebates as a pharmacy benefit."
Statutory interpretation rule. Tollett v. Wilson, 2020 Ark. 326, 608 S.W.3d 602: "construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language." The AG applied this rule to "allow" and found it permissive.
State Plan Amendment process. 42 C.F.R. Part 430, Subpart B governs state submissions to CMS for Medicaid plan changes.
Arkansas APA. A.C.A. § 25-15-201 et seq. governs DHS rulemaking, including notice and comment.
Legislative review. A.C.A. § 10-3-309 requires legislative review and approval for certain administrative rules.
Citations
- A.C.A. § 20-77-148 (CGM coverage mandate, codified Act 393 of 2023)
- A.C.A. § 25-15-201 et seq. (Arkansas APA)
- A.C.A. § 10-3-309 (legislative review of rules)
- Acts 2021, No. 643 (Act 643)
- Acts 2023, No. 393 (Act 393)
- 42 C.F.R. Part 430, Subpart B (Medicaid SPA process)
- Tollett v. Wilson, 2020 Ark. 326, 608 S.W.3d 602
- Bryan A. Garner, GARNER'S MODERN ENGLISH USAGE 46 (5th ed. 2022) (definition of "allow")
- BLACK'S LAW DICTIONARY 1561 (11th ed. 2019) (definition of "requirement")
Source
Original opinion text
Opinion No. 2023-099
January 25, 2024
The Honorable Matthew Brown
State Representative
3010 Pheasant Road
Conway, Arkansas 72034
Dear Representative Brown:
I am writing in response to your request for my opinion on two questions relating to Medicaid eligibility for continuous glucose monitors (CGMs).
In 2021, the General Assembly passed Act 643 (formerly codified at A.C.A. § 20-7-142), requiring the Arkansas Medicaid Program to provide coverage of CGMs for eligible Medicaid beneficiaries. The Arkansas Department of Human Services (DHS) then implemented a rule providing for coverage of CGMs, but only for those obtained through durable medical equipment providers, not through pharmacies.
In 2023, the General Assembly passed Act 393, which repealed A.C.A. § 20-7-142, recodified it at § 20-77-148, and added a new subsection requiring Medicaid to allow eligible beneficiaries to obtain their CGMs through a pharmacy.
In response to Act 393, DHS recently proposed a new rule that would provide Medicaid coverage of CGMs only as a pharmacy benefit. With the exception of individuals receiving Medicare Part B benefits, who would continue to receive benefits under the Durable Medical Equipment program, this new rule would prevent Medicaid beneficiaries from obtaining their CGMs as a medical benefit from durable medical equipment providers.
Against this background, you ask the following questions:
-
Does Act 393 of 2023 limit continuous glucose monitors as a pharmacy-only benefit under Arkansas Medicaid?
Brief answer: No, Act 393 of 2023 requires the Arkansas Medicaid Program to cover continuous glucose monitors as a pharmacy benefit for eligible Medicaid recipients, but it does not prevent Medicaid from also covering the monitors as a medical benefit. -
Under Arkansas law and pursuant to the applicable Medicaid law, rules, and regulations, may both pharmacies and durable medical equipment providers provide CGMs?
Brief answer: There is no law, rule, or regulation specifically prohibiting the state's Medicaid program from covering continuous glucose monitors as both a pharmacy benefit and a medical benefit. But certain requirements must be met before Arkansas Medicaid could provide such dual coverage.
DISCUSSION
Question 1: Does Act 393 of 2023 limit continuous glucose monitors as a pharmacy-only benefit under Arkansas Medicaid?
The cardinal rule of statutory interpretation is to construe a statute "just as it reads, giving the words their ordinary and usually accepted meaning in common language." Here, the relevant portion of Act 393 states, "Coverage for a continuous glucose monitor under the Arkansas Medicaid Program shall allow the beneficiary to obtain a continuous glucose monitor through a prescription at a pharmacy and be eligible for rebates as a pharmacy benefit." The word "allow" suggests "absence of opposition, or refraining from a proscription." In other words, the Arkansas Medicaid Program cannot decline to cover an eligible beneficiary's CGM simply because it is obtained through a pharmacy. But allowing beneficiaries to obtain their monitors through a pharmacy is not the same as requiring them to do so. Therefore, the answer to your question is "no." Act 393 mandates that the Arkansas Medicaid Program cover CGMs as a pharmacy benefit, but it does not prevent Medicaid from covering the monitors as a medical benefit as well.
Question 2: Under Arkansas law and pursuant to the applicable Medicaid law, rules, and regulations, may both pharmacies and durable medical equipment providers provide CGMs?
There is no law, rule, or regulation specifically prohibiting the state's Medicaid program from covering both CGMs obtained from a pharmacy and CGMs obtained from a durable medical equipment provider. But certain requirements must be met before Arkansas Medicaid could provide such dual coverage. As with any change to the state Medicaid program's policies or operations, DHS must submit a Medicaid State Plan Amendment to the Centers for Medicare & Medicaid Services (CMS), requesting permission to cover and reimburse monitors as both a pharmacy benefit and a medical benefit. CMS must then approve of this change. Additionally, State Plan Amendments must be promulgated in accordance with the Administrative Procedure Act after legislative review and approval. In other words, switching to dual coverage of CGMs as both a pharmacy and medical benefit would be a process.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
(Footnote: It appears that the only change regarding CGMs that has been submitted and approved by CMS is Arkansas Medicaid State Plan Amendment 21-0015, which implemented Act 643 of 2021 and went into effect on January 1, 2022. This amendment provides for the coverage and reimbursement of CGMs and related supplies as durable medical equipment. To implement A.C.A. § 20-77-148, DHS will need to submit a proposed State Plan Amendment to CMS, regardless of whether that amendment provides for coverage of CGMs as both a medical benefit and a pharmacy benefit or as a pharmacy benefit only.)
(Footnote: DHS has announced that it is postponing the effective date of its proposed rule until April 1, 2024, so that it may "better assess the concerns and options proposed in public comments." In the meantime, "AFMC [Arkansas Foundation for Medical Care] will continue to review DME requests for continuous glucose monitors and diabetic supplies and provide necessary authorizations.")