Sharpen your Speed Reading Skills – Regs are Coming Fast and Furious

By Jocelyn Guyer

In recent days, we’ve started to feel a bit like Lucy and Ethel in their famous chocolate factory scene where the conveyor belt keeps speeding up faster than they can box the candy.  Lately, HHS and other federal agencies have been releasing  important ACA regulations at such a fast and furious pace that it would take a world champion speed reader to keep up.  Most recently, HHS released a copy of the “final” Medicaid rule.  It will officially be posted in the Federal Register on March 23rd, but for now, is available here.  Despite the fact that most of the rule is in final form, a few key areas are actually still open for comment.

Based on an initial read-through, here are some highlights from the Medicaid rule:

* Further strengthening of the use of electronic verification.  In keeping with the strong statutory language of the ACA, the final rule outlines a vision for connecting people to coverage that harnesses technology to get rid of unnecessary red-tape and paperwork.  Instead of requiring families to submit paper documentation, the final rule calls for relying on automatic data matches to the maximum extent possible.  Of particular note:  It clarifies that people cannot be required to provide additional information or documentation unless a state cannot obtain the data electronically (or the data are incompatible).

* Allows people with disabilities to enroll in the eligibility category that best meets their needs.  The proposed rule raised the prospect that people with disabilities would be required to enroll in the new Medicaid eligibility category designed to cover adults up to 138% of FPL even if they could qualify for Medicaid under a disability category that provided them with more appropriate benefits (e.g., home and community-based waiver services or other long-term care services).  The final rule allows people with disabilities to enroll in the category that best meets their needs, as long as they are eligible.

* New language clarifying that information must be provided “accessibly” and in a timely manner for people who are limited English proficient or who have a disability.  The final rule includes stronger provisions requiring the use of language and tools that will make it possible for people with disabilities and who are limited English proficient to sign up for and keep coverage.  It clarifies that the application, renewal form, kiosks, and other information systems must meet these standards, and promises more guidance on these issues in the future.

* No face-to-face interview requirement allowed.  The final rule unequivocally says that states cannot require an in-person interview at application or renewal.  Nearly all states already have gotten rid of these outdated requirements, but at least one, Mississippi, has been holding out.

Of course, life isn’t a box of chocolates, and there are a few troubling additions to the final rule.  

* Allowing Exchanges to take a pass on fully evaluating Medicaid eligibility.  As part of creating a “no wrong door” seamless eligibility system, the ACA and the proposed rule envisioned Exchanges actually evaluating people who came to their door for Medicaid and, if found eligible, ensuring they were enrolled in coverage.  In a step backward, the final rule indicates HHS now is planning to allow Exchanges to conduct a preliminary assessment of potential eligibility and then to hand off the final determination to the Medicaid agency.  Based on our experience with states seeking to coordinate coverage between Medicaid and separate CHIP programs, such “hand offs” are a risky business and can lead to eligible people falling through the cracks.  HHS has included a number of protections aimed at minimizing the risk, but the basic structure is asking for trouble.  In my book, a bit like going into an open marriage. Even if you have all sorts of ground rules in place designed to make it work, I still wouldn’t put my money on such an arrangement.

* Outsourcing issues.  The final rule appears to open the door even further to outsourcing of Medicaid eligibility determinations.  HHS has included a number of protections aimed at ensuring that state Medicaid agencies remain ultimately responsible for the outcomes, but, it will be important to dig into these provisions further to see if they will really work.

NEXT STEPS

In the weeks ahead, HHS is conducting a series of webinars to go through key topics addressed in the final Medicaid rule.  They are open to interested parties at both the state and national level, and we encourage you to participate if you can

Also, as already noted, some key areas of the Medicaid rule remain open for comment, including the new provisions allowing for handoffs between the Exchange and Medicaid agency. We’ll be working with others in the weeks ahead to develop draft comments, which are expected to be due on May 7th. 

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