Summary of CMS’s Access-Related Notices of Proposed Rulemaking: Ensuring Access to Medicaid Services (CMS 2442-P) and Medicaid and Children’s Health Insurance Program (CHIP) Managed Care Access, Finance, and Quality (CMS-2439-P)

Summary of CMS’s Access-Related Notices of Proposed Rulemaking

Ensuring beneficiaries can access covered services is a critical function of the Medicaid and CHIP programs and a top priority of the Centers for Medicare & Medicaid Services (CMS). Together these two proposed rules, Ensuring Access to Medicaid Services (Access NPRM) and Managed Care Access, Finance, and Quality (Managed Care NPRM), propose historic advancements in access to care, quality of care, and improved health outcomes for Medicaid beneficiaries across fee-for-service (FFS) and managed care delivery systems, including home and community-based services (HCBS) provided through those delivery systems, and for CHIP beneficiaries. Medicaid and CHIP are the nation’s largest health coverage programs. If adopted as proposed, these rules would build on Medicaid’s already strong foundation as an essential program for millions of families and individuals, especially children, pregnant people, older adults, and people with disabilities.

This fact sheet includes an overview of proposed changes to current requirements and proposed new requirements in both proposed rules. These proposals are intended to increase transparency and accountability, standardize data and monitoring, and create opportunities for states to promote active beneficiary engagement in their Medicaid and CHIP programs. Public comments are requested on these Notices of Proposed Rulemaking (NPRMs), including in response to specific questions articulated throughout each publication.

Background

CMS has actively sought to improve access for its beneficiaries, but has been limited by outdated regulations that need to be more comprehensive and consistent across delivery systems and coverage authorities.

The two proposed rules outlined in this fact sheet address critical dimensions of access across both Medicaid FFS and managed care delivery systems, including for HCBS and the CHIP program. Highlights include:

• For Medicaid and CHIP managed care, which now covers the majority of Medicaid and CHIP beneficiaries in this country, we propose establishing national maximum standards for certain appointment wait times and stronger state monitoring and reporting requirements related to access and network adequacy.
• We propose requiring states to conduct independent secret shopper surveys of Medicaid and CHIP managed care plans to validate compliance with appointment wait time standards and to identify where provider directories are inaccurate.
• In both proposed rules, we outline new proposed requirements for states related to provider rate transparency in both FFS and managed care, with the goal of a greater line of sight into how Medicaid payment levels affect access to care. This includes a proposed requirement for states to report some of their Medicaid provider rates relative to Medicare for both FFS and managed care, and to provide data to CMS to support that any provider rate reductions will not harm beneficiary access to care.
• For HCBS, we propose to establish additional transparency and interested party engagement requirements for setting Medicaid rates for HCBS, alongside a proposed requirement that at least 80% of Medicaid payments for personal care, homemaker, and home health aide services be spent on compensation for direct care workers (as opposed to administrative overhead or profit).
• We also propose establishing timeliness of access measures for certain HCBS and strengthening necessary safeguards to ensure health and welfare and promote health equity for people receiving HCBS.
• We propose strengthening and achieving greater consistency in how states must use Medical Care Advisory Committees (MCAC) that advise the Medicaid agency about health and medical care services. This includes modifying the MCAC structure to support more meaningful and accessible engagement by all Committee members, emphasizing Medicaid beneficiaries.
• We propose establishing a new State Beneficiary Advisory Group with crossover to the newly restructured MCAC designed to elevate the voices of Medicaid beneficiaries.
• For Medicaid managed care, we propose requiring states to conduct an annual enrollee experience survey for each managed care plan to gather input directly from enrollees.
• To support beneficiary choice, we propose a framework for states to implement a Medicaid and CHIP quality rating system requirements that would establish a “one-stop-shop” on states’ websites for enrollees to compare Medicaid and CHIP managed care plans.

Improving Access to Care in Managed Care

Medicaid and CHIP Managed Care Access, Finance, and Quality NPRM (CMS-2439-P)

Key to the effectiveness of the Medicaid and CHIP programs is ensuring that they provide timely access to high-quality services in an equitable and consistent manner. This is particularly critical given that  over 70 percent of the Medicaid and CHIP populations are enrolled in managed care plans. The Managed Care NPRM includes standards for timely access to care and states’ monitoring and enforcement efforts as well as many other provisions related to managed care programs. See the Managed Care NPRM fact sheet overview for additional details.

If finalized, the access-related provisions contained in the managed care NPRM would:

• Establish national maximum appointment wait time standards for routine primary care, including pediatric primary care, obstetric/gynecological services, outpatient mental health and substance use disorder—adult and pediatric, and a state-selected service.
• Require states to use an independent entity to conduct annual secret shopper surveys to validate managed care plan compliance with the appointment wait time standards and provider directory accuracy to help identify errors, as well as network providers that do not offer appointments.
• Require states to conduct an annual enrollee experience survey for each Medicaid managed care plan and post the results on states’ websites and report to CMS as part of an existing reporting vehicle.
• Require states to submit an annual payment analysis comparing managed care plan payment rates for certain services as a proportion of Medicare’s payment rate and, for certain HCBS, the state’s Medicaid state plan payment rate.
• Require states to maintain a single web page that is readily identifiable to the public, easy to use, and contains all required information (including the provisions in the above bullets) for public transparency.

Enhancing Transparency and Review of Payment Rates to Protect Access in FFS

Ensuring Access to Medicaid Services NPRM (CMS 2442-P); Provisions of the Proposed Regulations; C. Documentation of access to care and service payment rates.

The Medicaid statute requires states to “assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan, at least to the extent that such care and services are available to the general population in the geographic area.”[1] CMS’s current access monitoring review plan policy to ensure compliance with this statutory access requirement in FFS Medicaid has proven overly burdensome to states in relation to its effectiveness in helping ensure sufficient access to covered services, particularly with the majority of Medicaid beneficiaries enrolled in managed care, and was therefore identified as an area for improvement. However, since its enactment various efforts to modify the access monitoring review (AMRP) process have not come to fruition. CMS is therefore proposing policies that would increase rate transparency, standardize rate information across states, and decrease burden through targeted rate review.

If finalized, these provisions would:

• Require states to make all FFS Medicaid payment rates public and accessible on a state website.
• Require states to report on their state Medicaid rates relative to comparable Medicare FFS rates. This requirement would apply to certain categories of services (certain HCBS services would have a separate disclosure requirement) every two years.
• Establish an interested parties advisory group comprised of beneficiaries, providers, and other interested parties to advise on current or proposed payment rates.
• Rescind and replace the current AMRP requirements for states with a tiered approach to data submission for determining whether states’ rate change proposals comply with section 1902(a)(30)(A) of the Act. The tiered approach would include a comparison of Medicaid payments to Medicare payments as an important basis for understanding whether Medicaid rates are likely to be sufficient.

Improving Access to and Quality of Home and Community-Based Services

Ensuring Access to Medicaid Services NPRM (CMS 2442-P); Provisions of the Proposed Regulations; B. Home and Community-Based Services.

Over the past several decades, HCBS have become a critical component of the Medicaid program and are part of a larger framework of progress toward community integration of older adults and people with disabilities that spans efforts across the federal government. Furthermore, HCBS play an important role in states’ efforts to achieve compliance with the Americans with Disabilities Act (ADA), section 504 of the Rehabilitation Act, section 1557 of the Affordable Care Act, and the Supreme Court’s decision in Olmstead v. L.C., in which the Court held that the unjustified segregation of people with disabilities is a form of unlawful discrimination under the ADA and states must ensure that services be provided in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

CMS is proposing both to amend and to add new federal HCBS requirements to improve access to care, quality of care, and beneficiary health and quality of life outcomes, while ensuring that there are safeguards in place for beneficiaries who receive HCBS through both FFS and managed care delivery systems.

If finalized, these provisions will:

• Establish a new strategy for oversight, monitoring, quality assurance, and quality improvement for HCBS programs;
• Strengthen person‑centered service planning and incident management systems in HCBS;
• Require states to establish grievance systems in FFS HCBS programs;
• Require that at least 80% of Medicaid payments for personal care, homemaker and home health aide services be spent on compensation for the direct care workforce (as opposed to administrative overhead or profit);
• Require states to publish the average hourly rate paid to direct care workers delivering personal care, home health aide, and homemaker services;
• Require states to establish an advisory group[2] for interested parties to advise and consult on provider rates for direct care workers;
• Require states to report on waiting lists in section 1915(c) waiver programs; service delivery timeliness for personal care, homemaker and home health aide services; and a standardized set of HCBS quality measures; and
• Promote public transparency related to the administration of Medicaid‑covered HCBS through public reporting of quality, performance, and compliance measures.

Promoting Public Engagement in State Medicaid Programs through the Use of Medical Care Advisory Committees and Beneficiary Advisory Groups

Ensuring Access to Medicaid Services NPRM (CMS 2442-P); Provisions of the Proposed Regulations; A. Medicaid Advisory Committee and Beneficiary Advisory Group.

Federal statute requires states to have a Medical Care Advisory Committee (MCAC) in place to advise the state Medicaid agency about health and medical care services. CMS has determined that the requirements governing MCACs need to be more robust to ensure all states are using these committees optimally to realize a more effective and efficient Medicaid program that is informed by the experiences of beneficiaries, their caretakers, and other stakeholders. The current MCAC regulations establish the importance of broad feedback from interested parties, but they lack the specificity that can ensure states use MCACs in ways that facilitate that feedback. The proposed rule outlines changes that will support the implementation of the principles of two-way communication, transparency, and accountability.

If finalized, these provisions will:

• Rename and expand the scope and use of states’ Medical Care Advisory Committees. The renamed Medicaid Advisory Committees (MAC) would advise states on a range of issues, including on medical and non-medical services.
• Require states to establish a beneficiary advisory group with crossover membership with the MAC.
• Establish minimum requirements for Medicaid beneficiary representation on the MAC, membership, meeting materials, and meeting attendance.
• Promote transparency and accountability between the state and its stakeholders by making information on the MAC and beneficiary advisory group activities publicly available.

Supporting Beneficiary Choice through the Medicaid and CHIP Quality Rating System

Medicaid and CHIP Managed Care Access, Finance, and Quality NPRM (CMS-2439-P)

Unlike in Medicare and the Marketplace, Medicaid and CHIP beneficiaries do not currently have a way to compare managed care plans based on quality. This rule also includes proposals to empower states and beneficiaries with readily available plan quality and access information through the new Medicaid and CHIP quality rating system.

If finalized, these proposals would:

• Establish the MAC QRS website as a state’s “one-stop-shop” for beneficiaries to access information about Medicaid and CHIP eligibility and managed care, compare plans based on quality and other factors key to beneficiary decision-making, such as the plan’s drug formulary and provider network, and select a plan that meets their needs.
• Establish the CMS framework and state requirements for the MAC QRS, including an initial set of mandatory measures and methodology for the quality ratings, and the process by which the mandatory measures would be updated in the future.
• Broaden flexibility for states to implement an alternative QRS, outside the CMS framework.

The following table summarizes the access-related provisions contained across the two proposed rules.

For more information, these proposed rules are available https://www.federalregister.gov/public-inspection. Public comments are due by July 3, 2023.

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