Public comments matter – the recent federal court decision on the Kentucky HEALTH waiver proved that. And they matter not just on Section 1115 waivers; they matter on regulations as well. Under the Administrative Procedures Act, federal agencies have to provide the public with an opportunity to comment on a proposed regulation, and it has to consider the comments.
In March, the Center for Medicare & Medicaid Services (CMS) proposed major changes in the current Medicaid Access Rule. CCF submitted comments describing the potential negative implications the rule would have on access to care. Following the end of the comment period, we decided to look at the submitted comments to see who commented and what they had to say.
Here’s what we found. A total of 134 individual submissions were posted in response to the proposed rule. These comments were submitted by a wide-range of organizations including providers, state agencies, advocacy/non-profit groups, and private citizens. Of the 134 comments, 119 commenters (89 percent of the comments) were opposed to CMS’ proposed changes.
Commenters were particularly opposed to the proposal to allow states to make fee-for-service payment cuts of up to 4% a year (6% over two years, 12% over four, etc.) without reviewing their impacts on access and regardless of whether the payment rates being cut are already too low. Many commenters also opposed exempting states with 85 percent or more of their Medicaid population in managed care from submitting an access monitoring review plan.
The remaining 15 submissions that were supportive of the changes to the Medicaid Access Rule, 14 were from state agencies, with one submitted by the National Association of Medicaid Directors on behalf of all 50 state Medicaid agencies and DC. The other singular supportive comment came from the Association for Community Affiliated Plans, which supported the rule with modifications.
The bulk of commenters, who come from 31 states and a variety of organizations, express great concern about the consequences of the rule changes on access to care. Groups in California, Texas, and Colorado submitted the most comments. Comments submitted by providers made up almost half of those posted, with all of the 61 provider comments stating opposing to the proposed changes.
Concerns are especially centered around access for the most vulnerable, medically complex individuals who tend to be in fee-for-service Medicaid rather than managed care and already face challenges to accessing care. The analysis of the public comments shows strong opposition to the proposed Access Rule changes, which CMS should take under consideration in the development of a final rule.
As reflected in our comments, we hope the agency withdraws the proposal and goes back to the drawing board. But whatever it decides, its job is to consider all the comments, pro and con, and give reasons for where is comes out.