Repealing the Medicaid Access Rule is Bad News for Children and Providers

On July 15, CMS proposed to repeal—but not replace—the Access Rule.  Repeal of this important rule will leave children in Medicaid fee-for-service, as well as their providers, with no systematic assessment of their access to services and no procedural protections against arbitrary payment cuts.  (This could be especially problematic in the event of a recession, when states look for ways to reduce Medicaid spending).  The impact will likely be greatest in the ten states with fee-for-service Medicaid programs—Alabama, Alaska, Arkansas, Connecticut, Idaho, Maine, Montana, Oklahoma, South Dakota, and Wyoming—but children and providers remaining in fee-for-service in managed care states will also be affected.

The proposed repeal is the product of the anti-regulatory crusade of CMS Administrator Seema Verma (except when it comes to heaping work requirements red tape on beneficiaries).   The Administrator’s action aligns comfortably with the President’s January 2017 Executive Order, which takes a cookie cutter approach to governing by directing agencies to repeal two regulations for every new regulation issued.  In March 2018, the Administrator published a proposed rule that would gut the Access Rule.  In the face of overwhelming opposition to that proposal (over 90% of public comments opposed weakening the Access Rule), she is now doubling down and seeking complete repeal.

This isn’t reasoned decision-making; it’s policy by ideology. Comments are due Friday, September 13. You can find our comments posted here.

[Editor’s Note: Shortly after the publication of this blog, the Medicaid and CHIP Payment and Access Commission (MACPAC) submitted comments expressing “strong concerns” about the proposed rescission of the Access Rule. Here is the crucial paragraph of that letter:
“The Supreme Court ruling in Armstrong v. Exceptional Child Center, Inc. eliminated the private right of action to contest payment rate changes under FFS, concluding that CMS is better suited than the courts to make determinations related to the adequacy of payment rates. The existing access monitoring rules stem from this obligation and were designed by CMS to strengthen the agency’s review and enforcement capabilities. The Commission considers federal enforcement of the equal access provision the primary mechanism for ensuring that Medicaid beneficiaries have sufficient access to care when services are delivered under FFS arrangements. The proposed rule, however, does not indicate how the federal government will fulfill this responsibility. Furthermore, state activities to collect and report data are necessary for the federal government to carry out this obligation. The proposed rule does not provide a clear alternative approach to the existing requirements.”]

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