Transparency has long been underrated as a way of improving access to care in Medicaid. This may be about to change. Two proposed rules that CMS published on May 3 use transparency—making information about program performance publicly available—as a policy lever to strengthen access in both fee-for-service (FFS) and managed care Medicaid. (Late last year, CMS also proposed to use transparency to improve prior authorization processes in both FFS and managed care Medicaid, an initiative we at CCF supported.) While these two proposed rules can and should go further, they would nonetheless increase accountability of state Medicaid agencies and managed care organizations (MCOs) for the accessibility of covered services for Medicaid beneficiaries.
The Current State of Play
There are transparency requirements for state Medicaid agencies in current regulations, but they are limited. All state Medicaid agencies, whether they operate FFS or managed care programs (or both), are required to maintain a website that enables enrollment, provides “useful information to consumers” regarding nursing facilities, and contains a current provider directory. (Effective January 1, 2025, these directories will have to include nine specified types of information and be searchable). In addition, states that use MCOs to furnish covered services to beneficiaries are required to operate a website that contains certain information related to managed care, including the Annual EQR Technical Reports on individual MCO performance prepared by their External Quality Review Organizations. Although there is more than enough room for improvement in the current managed care transparency requirements, they are stronger on paper than those that apply in FFS.
That said, there’s nothing in the Medicaid statute or CMS regulations that prohibits a state Medicaid agency, whether FFS or managed care (or both), from making non-personally identifiable information relating to access to care publicly available. Some agencies have been transparent, posting access information in a way that the public can actually find it; others, not so much. The issue is not just what information the agency posts (whether or not required to do so) but also whether the public can find the information the agency does choose to post. In the preamble to the proposed Managed Care Rule, CMS notes:
“There is variation in how ‘‘user-friendly’’ States’ websites are, with some States making navigation on their website fairly easy and providing information and links that are readily available and presenting required information on one page. However, we have not found this to be the case for most States. Some States have the required information scattered on multiple pages that requires users to click on many links to locate the information they seek.”
Taken together, these proposed rules would alter this status quo, establishing a federal floor for transparency about access. Here is a brief summary of the main transparency provisions in each.
Transparency in the Proposed Access Rule
The proposed access rule includes transparency provisions relating to FFS provider payments, Medicaid Advisory Committee operations, and home and community-based (HCBS) services.
Currently, there’s no Federal requirement that state Medicaid agencies post their FFS payment rates so that they are publicly accessible. As a result, CMS notes, “… rate information may not be easily obtained from each State’s website in its current publication form, making it difficult to understand the amounts that States pay providers for items and services furnished to Medicaid beneficiaries and to compare Medicaid payment rates to other health care payer rates or across States.” The proposed Access Rule would change this. As discussed in more detail by my colleague Kelly Whitener, the Rule would require state Medicaid agencies to post on a website “all” FFS payment rates and the date the rates were last updated. It would also require posting of an analysis comparing the state’s Medicaid payment rates with Medicare rates for four buckets of services: primary care, OB/GYN, outpatient behavioral health, and personal care/home health services.
The proposed Access Rule would overhaul the current Medicaid advisory committee structure in order to increase the ability of beneficiaries and other stakeholders to persuade their state Medicaid agency to improve access to and quality of care for beneficiaries. My colleague Leo Cuello characterizes these proposals as a “home run for beneficiaries.” An important part of this overhaul is greater transparency. The proposed rule would require, among other things, that state Medicaid agencies post on their websites the times and locations of the meetings of the Medicaid Advisory Committees and the Beneficiary Advisory Groups, the minutes of those meetings, and the recommendations in the annual report submitted by the MAC to the agency.
Finally, the proposed rule would establish new reporting requirements for HCBS services. These include information on the number of critical incidents (abuse, neglect, financial exploitation, medication errors, etc.) investigated and resolved; performance on HCBS Quality Measure Set metrics; and access measures such as the number of individuals on waiting lists and the average time they spend waiting to enroll. States would be required to operate a website that provides the results of these reporting requirements and to “verify no less than quarterly, the accurate function of the website and the timeliness of the information and links.”
Transparency in the Proposed Managed Care Rule
Current federal regulations require state Medicaid agencies that use MCOs to deliver services to beneficiaries must maintain a public-facing website that contains certain information (enrollee handbooks, provider directories, and drug formularies) or that links to individual MCO websites where individuals can find this information. Current regulations also require states to post certain documents and other types of information on their agency websites, including the risk contract between the state and the MCO, the names and titles of each MCO’s corporate officers and directors, the results of independent financial audits states are required to conduct (or contract for). With the exception of the Annual EQR Technical Reports, which are generally posted as required, state agency compliance with these minimum requirements has been at best uneven.
The proposed Managed Care Rule would expand the types of information states must post on their Medicaid agency websites to include three new items: (1) reports documenting provider network adequacy and analyzing payment adequacy for each MCO; (2) the results of secret shopper surveys to test the accuracy of each MCO’s provider directories and its compliance with appointment wait time standards, and (3) evaluations of state directed payments (SDPs). In addition, the proposed rule would require that the state Medicaid agency website display information on the state’s Quality Rating System (QRS) that enables beneficiaries to select an MCO that “align[s] with their coverage needs and preferences.” This information would include standardized metrics, specified by CMS, of MCO performance, as well as MCO-specific drug formularies, provider directories, and quality ratings.
Greater transparency about the performance of state Medicaid programs, whether managed care or FFS, won’t necessarily solve all access problems. But it also won’t make those problems worse. And by bringing them to light, it can be an important tool for advocates, providers, and other stakeholders to hold individual MCOs, and the state Medicaid agencies that contract with them, accountable.
These two proposed rules recognize the potential power of transparency to improve access to care in Medicaid and, to CMS’s credit, they try to harness that power. There are some glaring omissions, such as not requiring the posting of the Annual Medical Loss Ratio reports submitted by MCOs to state Medicaid agencies. Still, if the proposed transparency provisions are adopted in final form, and if state Medicaid agencies comply, it would represent a sea change in the culture of many state Medicaid programs.
Many, but likely not all. CMS oversight will be necessary but it will not be sufficient. There are practical and political limits on the ability of CMS to enforce federal requirements. The proposed rules rely almost exclusively on state Medicaid agency websites to increase transparency. Putting all the transparency eggs in the state website basket is a mistake. CMS has a website, and it should use it to post the MCO-specific access information it routinely receives from states. That would send an important message to the public: the performance of individual Medicaid MCOs is important to CMS, not just the state Medicaid agencies, and part of CMS’s monitoring and oversight responsibility is to be fully transparent about that performance.