Co-payments for Medicaid Recipients

OAG 03-004 October 3, 2003 Subject: Co-payments for Medicaid Recipients Requested by: State Senator Julie Rose Denton Written by: Ryan Halloran, Assistant Attorney General Syllabus: It is a violation of KRS 205.560(1)(e) to require a co-payment for a service provided by an optometrist under the Kentucky Medicaid Program, but not require a co-payment for the same service when provided by an ophthalmologist. Statutes construed: KRS 205.560(1)(e) Opinion of the Attorney General Senator Julie Rose Denton has requested the opinion of this office as to whether the state Medicaid program can require a co-payment for a covered service rendered by an optometrist, but not for the same service if rendered by an ophthalmologist. In the opinion of this office the answer is no. Because we think the resolution of the question is clear under state statute we will not conduct an analysis of federal law or of whether the federal and state constitutions are implicated. KRS 205.6312(6) authorizes the Cabinet for Health Services to institute co-payments for medical services provided under the Medicaid Program. The Cabinet has done so by Administrative Regulation 907 KAR 1:604E. That regulation provides a co-payment of two dollars ($2.00) for covered medical services provided by an optometrist and a general ophthalmological service provided by a physician. 907 KAR 1:604E(2)(b) and (c). Optometric services are specifically included in the Medicaid Program to the extent those services are covered in the ophthalmologist portion of the program and the optometrist is licensed to perform them. KRS 205.560(1)(e). The statute places ophthalmological services covered under the Medicaid Program, to the extent an optometrist is licensed to perform them, on an equal basis, whether delivered by an ophthalmologist or an optometrist. The regulation implementing the co-payments requires a co-payment for both opthalmological services provided by an optometrist and general ophthalmological services provided by a physician. See administrative regulation 907 KAR 1:604E(2). Hence, any interpretation of the regulation that requires a co-payment for ophthalmological services rendered by an optometrist, but not for an ophthalmologist, in our opinion, violates KRS 205.560(1)(e) and the regulation. See Hawley Coal Co. v. Bruce, 252 Ky. 455, 67 S.W.2d 703, 705 (1934) (“When language is clear and unambiguous, it will be held to mean what it plainly expresses”). Albert B. Chandler III Attorney General Ryan Halloran Assistant Attorney General 907 KAR 1:604E Section 2 (1) provides: Except as excluded in Subsection (5) of this section, the department shall require a recipient to make a copayment for: (b) A service provided by: 1. An audiologist; 2. A chiropractor; 3. A dentist; 4. A hearing aid dealer; 5. An optician; 6. An optometrist; or 7. A podiatrist; and (c) A general ophthalmological service provided by: 1. A physician; 2. An advanced registered nurse practitioner; 3. A primary care center or federally-qualified health center; or 4. A rural health clinic. KRS 205.560(1) provides: The scope of medical care for which the Cabinet for Health Services undertakes to pay shall be designated and limited by regulations promulgated by the cabinet, pursuant to the provisions in this section. . . . The selection of another class or other classes of medical care shall be recommended by the council to the secretary for health services after taking into consideration, among other things, the amount of federal and state funds available, the most essential needs of recipients, and the meeting of such need on a basis insuring the greatest amount of medical care as defined in KRS 205.510 consonant with the funds available, including, but not limited to, the following categories. . . : (e) Optometric services for all age groups shall be limited to prescription services, services to frames and lenses, and diagnostic services provided by an optometrist OAG 03-004 Page 2