Medicaid’s equal access regulations in danger of being eliminated

Medicaid’s equal access regulations in danger of being eliminated

CMS Administrator Seema Verma recently opined in a Washington Post Op-Ed: “Medicaid payment rates are even lower than Medicare rates. That’s why a substantial proportion of providers — 30 percent — do not accept new patients on Medicaid.” It is curious, then, that only a few days earlier Ms. Verma’s agency proposed to do away with federal regulations aimed at ensuring that Medicaid rates are sufficient to ensure that beneficiaries can access the services they need. Evidence supports Ms. Verma’s statement: when payment rates are low, fewer providers participate in state Medicaid programs. Thus, the National Health Law Program is urging CMS not to rescind its regulations on equal access, but rather to strengthen them.

Currently, state Medicaid programs set payment rates to ensure provider participation

As background, state Medicaid programs must set payment rates to ensure provider participation such that Medicaid services are at least as available they are for people who are not in Medicaid. (See 42 U.S.C. Sec. 1396a(a)(30)(A)). Over the years, beneficiaries and providers enforced this legal requirement, known as the “equal access provision,” in court to hold states accountable when they cut Medicaid provider payment rates, or allowed rates to stagnate such that access to covered Medicaid services was diminished. In 2015, however, the Supreme Court ignored the provision’s long track record of enforcement and ruled in Armstrong v. Exceptional Child that providers could not enforce the equal access provision in federal court.

Equal access covers 1 in 5 Americans

Equal access is important because Medicaid covers one in five Americans including two in five children, two in five people with disabilities, three in five nursing home residents – of which, the majority are seniors – and one out of two low-income individuals.

In response to the Court’s decision in Armstrong, HHS under the Obama administration issued regulations on the equal access provision in late 2015. The regulations require states to measure access to a specified set of Medicaid services for beneficiaries who receive services through a fee-for-service delivery system. States have to report their findings to HHS every three years, or whenever the state reduces rates that could cause diminished access. (See 42 C.F.R. Sec. 447.203(b)(6)(i)). The National Health Law Programs ‘s comments on the final rule commended CMS for taking steps to monitor access in Medicaid, and also suggested improvements and ways CMS could do more to ensure that beneficiaries have access to Medicaid services.

CMS proposes to eliminate Medicaid’s equal access regulation

In July, rather than implement improvements to the rule, CMS proposed to get rid of it entirely. The National Health Law Program has reviewed current efforts by states to ensure equal access to covered services and providers and found that rescinding the current Medicaid regulations will lead to reductions in access to services that would have significant, negative impacts on millions of people. This is supported by research showing that access to Medicaid coverage is associated with better health outcomes, particularly improvements in mental health, depression, self-reported health improvement, and reductions in the number of people delaying care and utilizing catastrophic care.

Comments submitted to CMS opposing equal access regulation changes

The National Health Law Program has submitted comments to CMS opposing its wrongheaded approach. We have also proposed metrics assessing the availability of care and providers, allowing beneficiaries to report their access to services and providers, oversight of service utilization, and payment to providers at achievable thresholds which will ensure increased coverage to quality care for this vulnerable population of people.

There is certainly room to improve the current regulations, and we have made suggestions for doing so in both our prior comments, and our comments on the proposed rescission. But getting rid of the regulations without setting up any alternative scheme to monitor access to Medicaid services will only make it easier for state Medicaid programs to cut provider payment rates and reduce access to covered services, rather than shoring up access in Medicaid. After all, HHS’s job is to implement and enforce federal laws, not sideline them.

Advocates urged to submit comments on CMS’s proposal by September 13, 2019

We urge advocates to join us in submitting comments on CMS’s proposal, which are due September 13, 2019, to send a clear message that rescinding the rule is not the right approach to improving provider payment rates and access to services in Medicaid.

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