Does Arkansas Act 393 of 2023 require Medicaid to cover continuous glucose monitors only as a pharmacy benefit?

Plain-English summary

Act 643 of 2021 required Medicaid coverage for eligible recipients' continuous glucose monitors (CGMs). DHS initially covered monitors obtained through durable medical equipment providers, but not pharmacies. Act 393 of 2023 moved the coverage provision to A.C.A. § 20-77-148 and required Medicaid to allow eligible recipients to obtain a CGM by prescription at a pharmacy as a pharmacy benefit. After that change, DHS proposed a rule that would generally cover CGMs only through pharmacies, with an exception for Medicare Part B recipients.

The Attorney General answered two questions about the new law. Act 393 requires pharmacy-benefit coverage; it does not itself prohibit Medicaid from also providing medical-benefit coverage through durable medical equipment providers. The AG found no law, rule, or regulation specifically forbidding both forms of coverage. But adding dual coverage would require DHS to submit a Medicaid State Plan Amendment for federal approval, then complete the stated Arkansas rulemaking and legislative-review steps. The opinion does not decide whether DHS may choose a pharmacy-only policy through that process. Its footnote expressly says a proposed amendment could cover both benefits or only the pharmacy benefit.

What this means for you

Medicaid beneficiaries and prescribers

Act 393 requires Arkansas Medicaid to make pharmacy access available to eligible beneficiaries. The opinion says the statute does not itself eliminate the option of medical-benefit coverage through a durable medical equipment provider. Whether both channels are available under an implemented policy depends on the required State Plan Amendment and rulemaking. The opinion describes the proposal and a postponement announced in January 2024; it does not establish the program's current coverage terms.

Pharmacists and durable medical equipment providers

The opinion distinguishes the statutory floor from program implementation: the Act requires a pharmacy benefit and leaves room for medical-benefit coverage as well. Before relying on a particular reimbursement channel, consult the applicable approved State Plan Amendment and Medicaid rules. The AG says a change to dual coverage would need CMS approval and state procedures.

DHS administrators and legislators

DHS must submit a proposed State Plan Amendment to CMS to implement § 20-77-148, whether the proposal covers CGMs as both benefits or only as a pharmacy benefit. CMS approval, Administrative Procedure Act rulemaking, and legislative review and approval are described as required steps. The opinion does not find that DHS's proposed pharmacy-only rule resulted from a misreading of Act 393.

Common questions

Does Act 393 require pharmacy-only CGM coverage?
No. It requires pharmacy-benefit coverage for eligible beneficiaries but does not prevent Medicaid from also covering CGMs as a medical benefit.

Can Medicaid cover CGMs through pharmacies and durable medical equipment providers? The AG found no specific prohibition on both channels. DHS would need a State Plan Amendment approved by CMS and the state rulemaking and review described in the opinion.

Did the AG decide the legality of DHS's proposed pharmacy-only rule? No. The opinion answers what Act 393 requires and whether dual coverage is specifically prohibited. It notes in footnote 6 that a State Plan Amendment could propose pharmacy-only coverage or both benefit types.

What was already approved when the opinion was issued?
Footnote 6 says CMS had approved Arkansas Medicaid State Plan Amendment 21-0015, effective January 1, 2022, covering CGMs and related supplies as durable medical equipment. The opinion does not report approval of an Act 393 amendment.

Background and statutory framework

Act 393 recodified the earlier CGM coverage requirement at A.C.A. § 20-77-148. Subsection (c) says coverage "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 Attorney General reads "allow" as permitting that channel without making it the exclusive channel.

For dual coverage, DHS would submit a State Plan Amendment under 42 C.F.R. Part 430, Subpart B, obtain approval from the Centers for Medicare & Medicaid Services, and follow A.C.A. § 25-15-201 et seq. and A.C.A. § 10-3-309. The opinion's January 2024 footnote reports that DHS postponed its proposed rule's effective date to April 1, 2024 while it assessed public comments.

Citations

• A.C.A. § 20-77-148(c)
• A.C.A. § 25-15-201 et seq.
• A.C.A. § 10-3-309
• 42 C.F.R. Part 430, Subpart B
• Tollett v. Wilson, 2020 Ark. 326, at 5, 608 S.W.3d 602, 606

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

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:

1. 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.
   The Honorable Matthew Brown
   State Representative
   Opinion No. 2023-099
   Page 2

   2. 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.” 1 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.” 2 The word “allow” suggests “absence of opposition, or refraining from a proscription.” 3 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. 4 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

1
Tollett v. Wilson, 2020 Ark. 326, at 5, 608 S.W.3d 602, 606.
2
Acts 2023, No. 393, § 2, codified at A.C.A. § 20-77-148(c) (emphasis added).
3
Bryan A. Garner, GARNER’S MODERN ENGLISH USAGE 46 (5th ed. 2022).
4
See, e.g., BLACK’S LAW DICTIONARY 1561 (11th ed. 2019) (defining “requirement” as “something legally imposed, called for, or demanded; an imperative command”). The Honorable Matthew Brown State Representative Opinion No. 2023-099 Page 3

reimburse monitors as both a pharmacy benefit and a medical benefit. 5 CMS must then approve of this change. 6 Additionally, State Plan Amendments must be promulgated in accordance with the Administrative Procedure Act 7 after legislative review and approval. 8 In other words, switching to dual coverage of CGMs as both a pharmacy and medical benefit would be a process. 9

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

5
See 42 C.F.R. Part 430, Subpart B.
6
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 (available at https://www.medicaid.gov/sites/default/files/2022-01/AR-21-0015.pdf). 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. 7 A.C.A. § 25-15-201 et seq.
8
See A.C.A. § 10-3-309.
9
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.” Arkansas Department of Human Services, Helpful Information for Providers, What’s New for Arkansas Medicaid Providers, Diabetic Supplies Update (updated January 19, 2024), https://humanservices.arkansas.gov/divisions-shared- services/medical-services/helpful-information-for-providers/.