7. Participant in a Drug or Alcohol Rehabilitation or Treatment Program

Section 1902(xx)(9)(A)(ii)(VII) of the Act establishes an exclusion for individuals “participating in a drug addiction or alcoholic treatment and rehabilitation program (as defined in section 3(h) of the Food and Nutrition Act of 2008).” Section 3(h) of such Act defines “drug addiction or alcoholic treatment and rehabilitation program” to mean any such program conducted by a private non-profit organization or institution, or a publicly operated community mental health center under part B of title XIX of the Public Health Service Act to provide treatment that can lead to the rehabilitation of drug addicts or alcoholics. States will need to determine which rehabilitation and treatment programs meet this definition for purposes of this exclusion. To qualify for this exclusion, the statute requires an individual to “participate” in a rehabilitation or treatment program. We are not establishing a minimum time commitment requirement, such as a minimum number of hours or days of services, that would qualify as participation for this exclusion; instead, States may establish a minimum standard for participation for such purposes, consistent with appropriate clinical guidelines. We implement this definition of “participating in a drug addiction or alcoholic treatment and rehabilitation program” for the community engagement exclusion at the new § 435.554(c)(8).

We acknowledge that individuals participating in an addiction treatment or rehabilitation program will, by definition, have an SUD. The statutory definition of medical frailty at section 1902(xx)(9)(A)(ii)(V) of the Act (discussed in more detail in section II.E.5. of this IFC) includes individuals with an SUD. Additionally, States must ensure that any data sharing used to implement both SUD-related exclusions is aligned with 42 CFR part 2 , the Federal regulation protecting the confidentiality of SUD treatment records. This is addressed in more detail in section II.I.7.e. of this IFC.