November 11, 2015

Comments Sought on Medicaid Equal Access Final Rule

On October 29, the Centers for Medicare & Medicaid Services (CMS) issued a long-awaited final rule to enforce a very important, but previously unregulated provision of Medicaid law. The so-called "equal access" provision (Section 1902(a)(30)(A) of the Social Security Act), added to the law in 1989, states that a state Medicaid plan must "provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ... as may be necessary to safeguard against unnecessary utilization of such care and services and 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." (Emphasis added.)


In the past, Medicaid providers sometimes sued the state to try to enforce this equal access provision. But in March of 2015, the Supreme Court ruled, in Armstrong v. Exceptional Child Center, Inc., that providers do not have the right to sue under this provision of the law, making it all the more important that the federal government enforce it.


The final rule, which builds upon the proposed rule issued in 2011, requires each state to develop an "access review plan," which must be published and made available for public comment for at least 30 days prior to finalization and submission to CMS for approval. The plan must be established by July 1, 2016, and updated every three years.


The rule describes a certain subset of services that must be reviewed at least once every 3 years, including: primary care services, physician specialist services, behavioral health services, pre- and post-natal obstetric services, home health services, and any additional types of services where rates have been reduced or restructured or for which the state or CMS has received a higher than usual volume of access complaints. Although the rule is final, CMS is seeking comment on Section 447.203(b)(5), specifically about the service categories required for ongoing review, the elements of the review, the timeframe for submission, and whether there should be an exemption process. Comments are due on January 4, 2016.


In addition, CMS released a request for information to solicit comments on additional approaches the agency and states should consider to ensure better compliance with Medicaid access requirements. This includes comments on the potential development of standardized core set measures of access, access measures for long-term care and home and community-based services, national access-to-care thresholds, and resolution processes that beneficiaries could use in facing challenges in accessing essential health care services. CMS will accept responses to the request for information through January 4, 2016.


A fact sheet on the final rule and other information are available on this page of See also this blog post from the Georgetown Center on Children and Families.