For the past two years, CMS Administrator Seema Verma has wanted to “rollback” the Medicaid Access Rule.  That’s the CMS regulation that implements the requirement in the Medicaid statute that rates paid to physicians and other providers be “sufficient” so that enough participate in Medicaid to give beneficiaries access to covered services.   In the spring of 2018, Administrator Verma proposed to partially gut the Access Rule.  About 150 organizations and individuals from 30 states and DC commented; of these, the overwhelming majority (some 90 percent) opposed the proposal. None of the commenters — even those favorable to the proposed gutting — urged repeal of the Access Rule altogether.  

After what was undoubtedly careful consideration of these comments, the Administrator – SURPRISE! – is proposing the repeal the Access Rule altogether.  (The public comment period closes September 13, 2019.) This repeal dovetails nicely with the reported emphasis by the White House on “faster rollbacks of rules enacted by former president Barack Obama before Trump’s first term ends.” 

Under the proposal, what would be left after the repeal is the same regulatory structure that was first put in place in the early 1980’s: a requirement that the state agency “maintain documentation of payment rates and make it available to HHS [but no one else] upon request” and a requirement that payments be “sufficient to enlist enough providers so that services under the plan are available to beneficiaries at least to the extent that those services are available to the general population in the geographic area.”  This of course, is exactly the same regulatory language that Congress codified in 1989, which, through a long and circuitous route, including two stops at the Supreme Court, led to the promulgation of the Access Rule in November 2015.

The Access Rule contains three requirements for state Medicaid agencies.  These requirements apply only to the fee-for-service portion of a state’s Medicaid program, if any, not to the managed care portion.  First, the agency has to produce an Access Monitoring Review Plan (AMRP) and update date it once every three years. The Plan must analyze access for beneficiaries in fee-for-service Medicaid for six categories of services—primary care, physician specialist, behavioral health, obstetric, and home health—using the data and methodologies selected by the agency.   The first round of AMRPs, completed October 1, 2106, are posted here. Second, if the agency wants to reduce payment rates for a service, it must submit an access review to CMS based on the AMRP that demonstrates sufficient access to the service.  Finally, if the rate reduction is approved by CMS and implemented by the agency, it must monitor access to the service for three years; if the monitoring identifies access deficiencies, the agency must implement a corrective action plan.  That’s it. 

The preamble to the proposed repeal frames these requirements as a policy straightjacket that “excessively constrains state freedom to administer the program in the manner that is best for the state and Medicaid beneficiaries in the State.”  Just to be clear, if the Access Rule is repealed, states would have the freedom to cut fee-for-service provider rates without an access review and without monitoring the effect of the rate cut on access to the affected providers. And in states that base their managed care payment rates on fee-for-service rates, the cut in fee-for-service rates could result in a reduction in capitation rates.  (The Administrator has also pledged to “roll back” administrative burden in the Managed Care Rule).

Of course, how repeal plays out depends on what follows it.  So what exactly will replace the repeal? And when will the repeal be replaced?  According to a CMCS Informational Bulletin,  , instead of the Access Rule, CMS is “setting out a new approach to understanding access and ensuring statutory compliance while eliminating unnecessary burden on states.”  If the repeal is finalized, the agency will issue a letter to State Medicaid Directors to “provide information on data and analysis that states may submit with SPAs to support compliance with [the Medicaid statute’s payment sufficiency requirement].”  Note the “may,” not “must”. Also, “in the upcoming months,” CMS will also be convening workgroups and technical expert panels to assist it in developing a “streamlined, comprehensive approach to monitoring access across Medicaid delivery systems by identifying uniform access indicators that may be measured through available data.”  

The Informational Bulletin provides no timeframe for the development of its new approach to access, much less implementation. The only dates that are clear are the close of the public comment period on the Administrator’s repeal proposal—September 13, 2019—and the date that the next round of AMRP updates is due under the current Rule (October 1, 2019).  Nor does it give any indication that beneficiaries will be among the “key state and federal stakeholders” to be consulted in the development process. Finally, the Bulletin does not explain why new workgroups are needed when the nation already has a Medicaid and CHIP Payment and Access Commission (emphasis added).

Eight years ago, MACPAC published a framework for looking at access (and quality) in Medicaid that has guided its work since then.   And when the Administrator proposed to partially gut the Access Rule last spring, MACPAC commented. Among its concerns: “Rather than eliminate obligations to monitor access, requirements should be targeted in a way that is efficient and effective. To that end, we encourage CMS to look toward how access monitoring plans [required by the Access Rule] can be improved as states gain experience and how these tools can be best used to provide meaningful and actionable information.”

There’s more than a little irony here.  As we all know, Administrator Verma is more than fine with imposing administrative burden on beneficiaries, especially those beneficiaries with the temerity to be “able bodied.”  That’s because red tape demonstrably reduces coverage, which undermines access.  Yet she is proposing the repeal the Access Rule in order to ease “the administrative burden on States while focusing on holding them accountable for delivering high-quality, accessible care to beneficiaries.” The whole point of the Access Rule, of course, is to ensure that state Medicaid agencies and CMS know whether care is actually accessible to beneficiaries in fee-for-service and to hold the agencies accountable if it is not.

There’s a word for this.