The Center for Medicare & Medicaid Services’ (CMS) recent final regulation on Ensuring Access to Medicaid Services (“Access Rule”) is ushering in a new era of participation for people enrolled in Medicaid and their families and caregivers. (We summarized the new regulation here, and its companion managed care regulation here.) The Beneficiary Advisory Councils (BACs) established by the rule represent a historic opportunity to leverage the experiences of people enrolled in Medicaid to improve state Medicaid programs. Here are the details.
Current CMS regulations require states to form and use advisory bodies known as Medical Care Advisory Committees (MCAC). MCACs provide advice to the state Medicaid agency and are required to include a range of Medicaid stakeholders, including individuals who are enrolled. However, there are minimal state requirements for operating MCACs to ensure that they are actively and consistently utilized to give states advice. As a result, in many states MCACs have not lived up to their potential. In particular, the voices of people enrolled in Medicaid have not played an important enough role in MCACs. The new Access Rule fundamentally changes the old MCAC framework.
First, the Access Rule changes the name of the MCAC to Medicaid Advisory Committee (MAC). More importantly, it creates a second advisory body made up entirely of people with Medicaid experience named the Beneficiary Advisory Council. Participants can include people enrolled in Medicaid (including youth participants), their families, and caregivers, and will be appointed by the director of the Medicaid agency. The BAC will provide direct advice to the state Medicaid agency and some BAC members will also participate on the MAC. Having a dedicated space for Medicaid beneficiaries will empower them and meaningfully improve their ability to provide valuable advice to the state Medicaid agency based on their lived experience in the program. This dual advisory group model is already used with great success in some states, such as Pennsylvania. (Such states will not need to reinvent existing committees as long as their current bodies comply with the regulatory requirements.) All states must set up their MACs and BACs by July 9, 2025, and the bodies must begin operating after that date.
Current regulations provide some minimal requirements for MAC composition, but the Access Rule provides more detailed instructions for composition. The rule requires that 25 percent of the MAC be drawn from the BAC (the threshold starts at ten percent starting in mid-2024, twenty percent starting in mid-2025, and 25 percent after mid-2026). In addition, the rule requires that MACs include at least one stakeholder from each of several categories, including a Medicaid beneficiary advocacy organization category, clinical providers, and Medicaid managed care plans. It also requires participation from at least one other state agency that serves Medicaid enrollees (such as a foster care agency), in a non-voting ex-officio role.
In a significant change from the proposed rule, the final Access Rule limits BAC members to one term, with states setting the length of the terms. This change has potential to seriously impair the effectiveness of BACs. If a state sets the term at one year, and consecutive terms are prohibited, states will need to re-constitute the entire BAC every year. This is particularly challenging when trying to establish a BAC that draws upon a representative sample of people with Medicaid experience and includes representation of individuals with disabilities, varying age ranges, a balance of rural and urban participants, limited English proficiency, etc. It will mean that the BAC and its supporters will spend all of their time searching for members, instead of developing recommendations for the state agency. In addition, imagine a new BAC member who may have no health policy background, asked to provide feedback on complex topics like pharmacy carveouts and provider taxes. It takes time—often years—for anyone to get up to speed on the intricacies of state Medicaid programs. Limiting participation to one year, which could be as little as four meetings, would make it unlikely that participants could provide meaningful input. For some participants—such as an individual with physical disabilities—there may be significant arrangements to set in place for their participation to be effective, and it can take multiple meetings just to figure this out. CMS urgently needs to repair this part of the final rule, perhaps in the form of guidance setting minimum requirements for term durations (for example, at least 3 years, at the choice of the participant), requirements for staggering transitions (so that the BAC doesn’t include a slate of entirely new participants), and/or exceptions to allow consecutive terms in special circumstances (for example, a type of consumer who is hard to find).
Current regulations provide no details on frequency of MCAC meetings. The final Access rule requires the state to convene the MAC at least quarterly (and additionally as needed) and at least two of these meetings must be open to the public and offer the public a chance to speak. The BAC can make more meetings public at the choice of the BAC members. The state must convene BAC meetings in advance of MAC meetings and at least one member of the state agency executive staff must be present at the BAC meetings. This is critical to ensure accountability of the agency to the BAC and its recommendations. States must organize MAC and BAC meetings on a rotating basis between options including in-person, virtual, or hybrid meetings, though individuals always retain the option to call into meetings. Ultimately, the state is responsible for organizing meetings at a time and location/format that maximizes attendance. Meetings must also be accessible to all MAC and BAC members, including based on disability and limited English proficiency.
The current regulations do not address the transparency of MCAC processes. The Access Rule adds numerous transparency requirements. The state must develop and publish: processes to recruit and appoint committee members and leaders, bylaws for committee governance, committee member lists (though BAC members can choose to not have their names publicly listed), the meeting schedule, and past meeting minutes and attendee lists.
The Access Rule broadens the role of the MAC and BAC to ensure that both advisory bodies are enabled to provide feedback on the full range of Medicaid topics that they have expertise to discuss, including services, quality, access, etc. The state must also support the MAC in producing an annual report, including recommendations made and the state’s responses to the recommendations. These reports will need to be publicly posted.
The Access Rule also builds upon general requirements in current regulations for state agencies to assist the MCAC so that it can make recommendations and to provide necessary financial support to facilitate member participation. The rule adds requirements for states to support the recruitment of members, planning of meetings, and producing meeting minutes and state response lists. The rule preserves, but does not change or expand, the requirement to provide necessary financial support to participants. The preamble to the regulation confirms that financial support provided to reimburse costs would not be countable Medicaid income, but this might be an issue for stipends reimbursing for their time. Aside from financial considerations, while the rule does include requirements for the state to provide support, including “research or other information needed,” it does not do enough to ensure that BAC have sufficient support from policy experts that are independent of the state. Thus, there is an important opportunity for state-based experts to fill this void.
In the coming years, states will need to stand up entirely new BACs, and will be searching for people with Medicaid experience to participate. This is an opportunity for state-based organizations to help states identify leaders with lived experience and also help states design the rules and processes for operating their BAC. But BACs will also need ongoing support to analyze state proposals and policy issues as they arise. State-based organizations may be able to play a role – whether through a formal relationship with the BAC or informally – supporting the BAC members as they try to analyze and develop recommendations on a range of complex Medicaid topics. CMS indicates in the preamble to the regulation that it will issue some kind of “toolkit” summarizing best practices for states setting up MACs and BACs. We will be watching for any such guidance and encourage state-based experts and advocates to get to work right away to help ensure that people enrolled in Medicaid have a seat at the table.
[This is part of a blog series on two key federal regulations that aim to improve access to care for people enrolled in Medicaid and CHIP across delivery systems. Learn more about the “Ensuring Access to Medicaid Services” and “Medicaid, CHIP Managed Care Access, Finance, and Quality” rules here.]
