CMS Issues Long-Awaited Medicaid Access Regulation

Today CMS issued the long-awaited final rule on access to covered Medicaid services. The rule describes the requirements under section 1902(a)(30)(A) of the Social Security Act, known as the “access requirement.” The access requirement provides that states must have methods and procedures to assure that payments to providers are “sufficient to enlist enough providers so that care and services are available under the plan at least to the same extent that such care and services are available to the general population in the geographic area.” However, until today, CMS had not defined an approach to guide states in meeting the access requirement.

Today’s rule does just that – it establishes approaches for states to demonstrate compliance with the access requirement using a consistent, transparent process – so that states and CMS can monitor access and make data-driven decisions about the adequacy of payment rates. The final rule requires each state to develop a medical assistance access monitoring review plan. The plan must be published and made available for public comment for at least 30 days prior to finalization and submission to CMS for approval. The plan must be established by July 1, 2016 and updated every 3 years.

Though the rule is final, there is a 60-day public comment period on section 447.203(b)(5) which outlines the access monitoring review plan timeframe. The rule describes a certain subset of services that must be reviewed at least once every 3 years, including: primary care services, physician specialist services, behavioral health services, pre- and post-natal obstetric services, home health services and any additional types of services where rates have been reduced or restructured or for which the state or CMS has received a higher than usual volume of access complaints. CMS is seeking comment on the service categories required for ongoing review, the elements of the review, and the timeframe for submission, as well as whether there should be an exemption process.

CMS also issued a request for information today to obtain public input into additional approaches to the access requirement that CMS should consider. The RFI comes in light of the change in the legal landscape since the proposed rule on the access requirement was issued back in 2011, namely the Supreme Court decision in Armstrong v. Exceptional Child Center, Inc., which held that Medicaid providers cannot enforce the access requirement against states in court. Say Ahhh! readers remember this case well because it left providers with no meaningful remedy to challenge low payment rates. CMS is seeking input on additional approaches to promote access to care, including establishing a core set of access metrics and thresholds that can be applied nationally and a robust complaint resolution and appeals process.

Comments to the final rule and responses to the RFI are due January 4, 2016. Stay tuned for additional analysis of the access requirement rule and the RFI as we dig in.

Kelly Whitener
Kelly Whitener is an Associate Professor of the Practice at the Center for Children and Families