To:
From:
Date:
Re:
ANCOR Membership
Katherine Berland, Esq., Director of Public Policy
July 13, 2017
Summary and Analysis of the Centers for Medicare and Medicaid Services Final
Rule RIN 0938-AQ54, Methods for Assuring Access to Covered Medicaid
Services (Medicaid Access Rule)
OVERVIEW
On November 2, 2015, the Centers for Medicare & Medicaid Services (CMS) issued final
rule RIN 0938-AQ541, which establishes new procedures that states must follow to receive CMS
approval of provider rate reductions or rate restructuring when those changes may negatively
impact access to care for Medicaid beneficiaries receiving services under a State Plan
Amendment (SPA). This final rule provides long awaited guidance from CMS for states to
comply with Section 1902(a)(30)(A) of the Social Security Act2, also known as the “Medicaid
access provision.” The rule provides standards to be used by states to assess the access to care
of certain Medicaid beneficiaries as compared to Medicare beneficiaries and privately-insured
individuals. Significantly for home and community-based services (HCBS) providers, the rule as
finalized does not alter current requirements for HCBS waivers, demonstrations, or Medicaid
managed care programs3. It does, however, apply to state plans including the 1915(i) and
1915(k) state plans.
Accompanying the final rule is a Request for Information (RFI)4 with a 60-day comment
period in which CMS solicits comments from stakeholders to give feedback on specific core
1
80 FR 67575, available at http://www.gpo.gov/fdsys/pkg/FR-2015-11-02/pdf/2015-27697.pdf
Available at https://www.ssa.gov/OP_Home/ssact/title19/1902.htm
3
See 80 FR 67582. CMS believes that other rules contain adequate provisions relating to ensuring access to HCBS
waiver services and Medicaid managed care. The rules referred to are final rule RIN 0938-AO53/0938-AP61 (the
“CMS Home and Community Based Services Rule”, 79 FR 5947, available at http://www.gpo.gov/fdsys/pkg/FR2014-01-16/pdf/2014-00487.pdf) and proposed rule RIN 0938-AS25 (the “Medicaid Managed Care Rule”, 80 FR
31097, available at http://www.gpo.gov/fdsys/pkg/FR-2015-06-01/pdf/2015-12965.pdf).
4
80 FR 67377, available at http://www.gpo.gov/fdsys/pkg/FR-2015-11-02/pdf/2015-27696.pdf.
2
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access measures, threshold, and access resolution processes that would be helpful in ensuring
access to care to Medicaid beneficiaries. CMS also says that comments may be used to address
measuring access to long term care and home and community-based services. The final rule
has an effective date of January 4, 2016, and comments responding to the RFI are due on that
date as well.
This document is intended to inform providers on the provisions in the final rule, discuss
its potential impact, and set forth relevant areas within the RFI that ANCOR intends to
comment on. ANCOR government relations staff Esmé Grant Grewal and Katherine Berland will
lead a workgroup to develop comments. ANCOR members are encouraged to volunteer to
participate in this workgroup. Anyone interested in participating should contact Esmé Grant
Grewal at [email protected] or Katherine Berland at [email protected].
BACKGROUND AND HISTORY
CMS issued a proposed rule, “Medicaid Program: Methods for Assuring Access to
Covered Medicaid Services,” on May 6, 20115. The public review process resulted in 181
substantive comments, including comments submitted by ANCOR. The proposed rule set forth
guidelines to be used by states to assess their service delivery system to determine whether
their payment rate methodologies are adequate to ensure that Medicaid beneficiaries have
access to services to an appropriate degree. Specifically, the rule proposed an approach
focused on: 1) the extent to which enrollee needs are met, 2) the availability of care and
providers, and 3) changes in beneficiary utilization. It also proposed that states conduct regular
reviews of Medicaid access to care that rely upon: payment data, trends in utilization, provider
enrollment, feedback from providers and beneficiaries, and other pertinent information. CMS
feels the rule is necessary because state processes for documenting access have been
inconsistent and often inadequate to document access.
CMS has been under pressure to finalize the rule from several fronts. ANCOR led a
campaign earlier this year, which included grassroots efforts and a Congressional briefing, to
5
76 FR 26342, available at http://www.gpo.gov/fdsys/pkg/FR-2011-05-06/pdf/2011-10681.pdf.
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push for its finalization. Additionally, in the Supreme Court case of Armstrong v. Exceptional
Child,6 decided March 31, 2015, the Court held that private providers and beneficiaries do not
have standing to challenge payment rates in federal court.7
CMS cites the Armstrong decision, which came significantly after the rule was proposed
in 2011, as one reason it is soliciting additional comments to consider when implementing the
final rule. In the preamble, CMS says it will consider providing additional guidance to states
through future rulemaking or subregulatory guidance.
SUMMARY
The final rule sets forth requirements that states must comply with in order to operate a
State Plan Amendment (SPA) under the Medicaid statute. SPAs relevant to HCBS providers are
those authorized by sections 1915(i) and 1915(k) of the Social Security Act. The purpose of the
rule is to ensure that states are appropriately evaluating whether certain Medicaid beneficiaries
have sufficient access to services. Access can be impacted by factors including, but not limited
to, insufficient provider rates, lack of qualified providers in a geographic area, and lack of
knowledge of resources available to beneficiaries. The rule requires states to assess their
Medicaid programs by comparing the access that Medicaid beneficiaries in certain fee-forservice programs have to the access of Medicare beneficiaries and individuals covered by
private insurance. Though the rule sets forth standards and metrics for analysis, it does not
create additional requirements beyond those found in the Medicaid access provision found in
Section 1902(a)(30)(A) of the Social Security Act, which require that Medicaid beneficiaries have
access to “care and services” to at least the extent that those services are available to the
general population in the geographic region. The omission of a requirement for states to align
assessment of their HCBS waiver services with the services covered by this rule is potentially
6
135 S. Ct. 1378 (2015), available at http://www.supremecourt.gov/opinions/14pdf/14-15_d1oe.pdf.
ANCOR joined with several other organizations to file an amicus brief in support of the original plaintiffs in the
case. In our brief, we argued that the plaintiffs had standing to challenge rates not only under the argument they
set forth, but also under an additional way of reasoning. The Court did not address this argument in its opinion.
That amicus brief is available at
http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/1415_amicus_resp_ANCO.authcheckdam.pdf.
7
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problematic, as services that are specific to a particular population which are not typically
utilized by the general population may not be adequately assessed. CMS will ultimately decide
to approve or disapprove SPAs based on the results of the analysis, and plans that do not
demonstrate adequate access may be disapproved.
The rule addresses analysis states must perform regarding payment rates, network
adequacy, and beneficiary utilization of the system and includes ongoing monitoring as will be
described in more detail below. It also sets forth requirements for public input and remediation
of access deficiencies found. Additionally, it revises its notice requirements to permit electronic
publication as appropriate. CMS notes several times that rates may not be the only or most
important determinant of access in the Medicaid program, and thus requires that state access
monitoring review plans include all relevant factors.
As is generally true of federal rules and laws, states may opt to set more stringent
standards and perform additional analyses beyond the minimums required. In this final rule,
CMS notes that several provisions are purposefully broad in nature to permit state flexibility,
but states are encouraged to supplement their analyses with additional criteria as appropriate
to better evaluate access.
Access Monitoring Review Plan Requirements
Timing
States will be required to develop access monitoring review plans to monitor and
measure beneficiary access. These plans must be developed in consultation with the state’s
Medicaid care advisory committee and submitted to CMS for review. The first review plan will
be required to be submitted by states July 1, 2016. Updates to the plan must occur every three
years by July 1 of that year. CMS set this timing to correspond with most states’ fiscal years. The
plans must be made available for public comment no less than 30 days prior to the finalization
of the plan and submission to CMS.
In the event a state submits a SPA to reduce payments or restructure payments that
could result in diminished access for the services included in the SPA, a state must update its
access monitoring review plan within 12 months of the effective date of the submitted SPA. The
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rule says that states should have ongoing monitoring procedures in place for at least three
years after the effective date of the SPA, and should be conducted at least annually.
Methodology
The access monitoring review plan must include data elements the state will analyze to
evaluate access. The rule sets forth a list of suggested elements, but permits states flexibility to
choose elements that are most appropriate to them, including additional elements not
specifically listed. Some elements included are: time and distance standards, providers
participating in the Medicaid program, providers with open panels, providers accepting new
Medicaid beneficiaries, service utilization patterns, identified beneficiary needs, logs of
beneficiary and prover feedback, and suggestions for improvement.
The data elements used by the state must effectively determine:
1) The extent to which beneficiary needs are fully met;
2) The availability of care through enrolled providers to beneficiaries in each
geographic area, by provider type and site of service;
3) Changes in beneficiary utilization of covered services in each geographic area.
4) The characteristics of the beneficiary population (including considerations for
care, service and payment variations for pediatric and adult populations and for
individuals with disabilities); and
5) Actual or estimated levels of provider payment available from other payers,
including other public and private payers, by provider type and site of service.
The state is required to include in its access monitoring review plan an analysis of the
percentage comparison of Medicaid payment rates to other public (including, as practical,
Medicaid managed care rates) and private health insurer payment rates within geographic
areas of the state.
Data Requirements
The rule requires that states analyze the data collected broken down by provider type of
site of service for the following categories:
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a) Primary care services (including those provided by a physician, FQHC, clinic, or
dental care).
b) Physician specialist services (for example, cardiology, urology, radiology).
c) Behavioral health services (including mental health and substance use disorder).
d) Pre- and post-natal obstetric services including labor and delivery.
e) Home health services.
f) Any additional types of services for which a review is required under the special
provisions for rate reductions or restructuring;
g) Additional types of services for which the state or CMS has received a
significantly higher than usual volume of beneficiary, provider or other
stakeholder access complaints for a geographic area, including complaints
received through the mechanisms for beneficiary input consistent with specified
mechanisms for ongoing beneficiary and provider input; and
h) Additional types of services selected by the state.
The state must conduct an analysis for each of these areas no less frequently than every
three years.
Public Input/Inspection
As noted above, public notice and comment is required for access monitoring review
plans at least 30 days prior to a SPA’s finalization and submission to CMS. The finalized plan
must include assurances from the state that relevant provider and beneficiary information has
been considered.
In addition to the initial plan, the state must have ongoing mechanisms for beneficiary
and provider input. Some examples of such mechanisms could include hotlines, surveys,
ombudsman, and the review of grievance and appeals data. States are directed to respond
promptly to public input. The rule requires states to maintain a record of data on public input
and its response, which will be made available to CMS upon request.
The rule revises requirements regarding the method by which public notice may be
given. In addition to existing methods, the rule specifies that electronic publication through a
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dedicated website that is well known and regularly updated will be permitted. Any such notice
must comply with national disability standards for access and maintained on the website for at
least three years.
Remediation
When access deficiencies are identified, the state is required to submit a corrective
action plan within 90 days of discovery of the deficiencies. The corrective action plan must
include specific steps and timelines to address the issues. Although the corrective action plan
may include long-term objectives, remediation of the specific deficiencies identified should take
place within 12 months.
The rule suggests various potential strategies for remediation, including increasing
payment rates, improving outreach to providers, reducing barriers to provider enrollment,
providing additional transportation to services, and providing for telemedicine delivery and
telehealth, or improving care coordination.
CMS notes that the resulting improvements in access must be measured and
sustainable.
REQUEST FOR INFORMATION
On the same day of the official publication of the final rule, CMS put out a Request for
Information (RFI) that seeks public input regarding specific core measures and metrics that
could be used to measure access to care. The rule itself includes suggestions and guidelines for
information that may be used to gather and evaluate data, without being overly prescriptive in
a way that would curb state flexibility. The RFI is designed to gauge whether it would be useful
and appropriate for CMS to set more concrete standards through subregulatory guidance.
The RFI solicits input from stakeholders on the feasibility of and methodologies related
to the following four specific approaches:
1. Developing a core set of measure of access that all states would monitor and
publicly report on;
2. Measuring access to long term care and home and community-based services;
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3. Setting national access to care thresholds; and
4. Establishing a process for access to care that would allow beneficiaries experiencing
access issues to raise and seek resolution of their concerns.
ANCOR is compiling specific questions asked within the RFI in a separate document to
be used to develop our comments. Interested ANCOR members are encouraged to reach out to
government relations staff Esmé Grant Grewal or Katherine Berland to participate in a
workgroup that will develop comments.
CONCLUSION
The rule makes improvements to the Medicaid system by providing standards that
states will use to more effectively evaluate the access to services that many beneficiaries have.
However, it does not address access to Medicaid managed care or home and community-based
services waivers, instead deferring to other rules that have purportedly spoken to those areas.
The Medicaid managed care rule referred to has not yet been finalized, so it is unclear what
final access provisions will be contained it in when it is finalized. The final CMS HCBS rule
(commonly referred to as the “community definition” rule) does not take a comprehensive
approach to addressing systemic access, although in comments to the final rule addressing
waivers, CMS confirms that “in regard to rate methodologies, while rate determination
methods may vary, payments for Medicaid services must be consistent with the [Medicaid
access provision].” Both managed care and HCBS waiver use are currently expanding, and
ANCOR believes it is necessary for CMS to ensure that these programs within Medicaid are
evaluated comprehensively to ensure adequate beneficiary access. The rule and accompanying
RFI note that states may find it beneficial and administratively prudent to align their evaluations
of fee-for-service systems and managed care, but does not mandate that they do so.
The rule makes significant improvements with regards to ongoing beneficiary, provider,
and other stakeholder engagement by requiring transparency and ongoing opportunities for
public input. It also requires states to remedy access issues that it discovers within a welldefined timeframe.
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Though the rule sets forth requirements for states to evaluate the access to parts of
their Medicaid systems in comparison to that of Medicare beneficiaries and privately-insured
individuals, the rule does not require that states or CMS ensure that the access of Medicaid
beneficiaries be on par to the access of others. Given the inability of providers or beneficiaries
to set or enforce rates, ensuring that state Medicaid programs do provide sufficient access will
fall to CMS as part of its exiting approval process.
ANCOR has continued conversations with CMS in preparation for submitting comments
to the RFI. ANCOR will submit comments in the coming weeks to the RFI and encourages our
members to do the same either independently or using a forthcoming template created by
ANCOR staff for members8. If you are an ANCOR member and would like to join our workgroup
working on these comments, please contact Esme Grant Grewal at [email protected] or
Katherine Berland at [email protected].
8
Public comment available at http://www.regulations.gov/#!documentDetail;D=CMS-2011-0062-0188