NHeLP Comments: BBA Reproductive Health Provisions

Centers for Medicare and Medicaid Services

Department of Health and Human Services

Attn: CMS-2104-P

P.O. Box 8016

Baltimore, MD 21244-8016

Dear Sir or Madam:

The National Health Law Program is a private, non-profit organization which advocates on behalf of low-income individuals to access health care. We submit these comments on the Notice of Proposed Rule making regarding the Medicaid managed care program on behalf of the undersigned organizations.

On January 19, 2001, the Centers for Medicare and Medicaid Services (CMS) issued final regulations implementing the Balanced Budget Act of 1997 Medicaid managed care provisions. 66 Fed. Reg. 6228 (Jan. 19, 2001). These regulations were to go into effect on April 19, 2001. However, CMS delayed implementation of the final rules three times, delaying the effective date with the last notice until August 16, 2002.

CMS’ notice of “further delay of effective date” issued in August, and the previous delays, violate the Administrative Procedures Act because they changed the effective date of the January final regulations without first allowing for required notice and comment. In addition, CMS neither claimed, nor would it be able to demonstrate, that the rule meets any of the exceptions allowing CMS to bypass the prior notice and comment requirements. We request that the January regulations be implemented immediately.

The proposed rule omits any requirement on health plans to provide information to enrollees about services that the health plans refuse to provide based on moral or religious grounds. Proposed §§ 438.10(e)(2)(ii)(E), (f)(6)(xii). This omission eliminates an important mechanism for women to receive information when it is most relevant – at the point of service. Allowing health plans not to provide covered services to which they object on moral or religious grounds is already a significant accommodation for any entity -that is all that is required under our Constitution for entities that wish to participate in a public program and to receive our taxpayer dollars which are meant to be spent to ensure health care access to a defined scope of services. The Constitution does not require lifting the obligation on plans to provide this information. Health care access should be made equally available to men and women. By omitting the requirement to provide information, CMS encourages and permits discrimination against women, ignores their health care needs, and discounts the religious and moral beliefs of Medicaid beneficiaries.

We strongly urge at the least that health plans be required to provide a referral to a state-sponsored toll-free number that informs beneficiaries about how and where to access services that the health plan does not provide. Health plans also should inform beneficiaries about the fact that the services are not available within the health plan but are otherwise covered under Medicaid. All of this information should be provided at the point of service and annually. Entities not willing to provide this information could choose not to participate in Medicaid. In addition, each State which contracts with such entities should maintain this toll free number to inform beneficiaries (in appropriate languages) about where and how to access these services in their communities.

Also of concern is the scope of information provided to beneficiaries prior to enrollment and the frequency with which information is provided to current enrollees. With respect to potential enrollees, the state need only provide a summary of certain information. Thereas the January rules would have required complete information to be provided in the first instance (January § 438.10(d)(2)(ii)), under the proposed rules potential enrollees would have to request detailed information on, for example, the scope of benefits covered and the benefits that are available under the State plan but which are excluded under the managed care contract and where and how to obtain these excluded services. Proposed § 438.10(e)(2)(ii). This information is critical for individuals to make their health care choices, especially individuals for whom one or more participating health plan options limit access to reproductive health services. It is unreasonable to expect that individuals who have to make decisions in short periods of time before being defaulted should have to take extra steps to obtain full information. Full information at the earliest point possible is crucial, especially if women are at risk of being defaulted into plans which do not provide the continuum of care to meet their health care needs.

In addition, the proposed rules further delay when potential enrollees can get this information by requiring that information be provided to Medicaid beneficiaries only when they become eligible to enroll in a voluntary program or are required to enroll in a mandatory managed care program.

Proposed § 438.10(e)(1)(i). Under the January rules, potential enrollees were to be given information as soon as they had become eligible for Medicaid. January § 438.10(d)(ii). Depending on the state, the time difference between Medicaid eligibility and mandatory nrollment can be significant, providing needed time for beneficiaries to read, digest, and utilize often complex information describing their health care access choices. Complete information should be provided to individuals in all mandatory and voluntary eligibility categories from the point of Medicaid eligibility. States do or should know who these individuals are as soon as their eligibility is determined. For example, California maintains a very detailed listing of the managed care enrollment status of each eligibility category, by county. There is no reason not to provide this information at the earliest stage to beneficiaries.As under the January rules, the proposed rules require that soon after enrollment, certain information be provided to beneficiaries. However, the January rules explicitly made the health plans responsible for providing this information. January § 438.10(e)(1). The proposed rules eliminate reference to the responsible party. Proposed § 438.10(f). The State Medicaid agency, as the single state agency, must be held ultimately accountable for the provision of information. States may have discretion to decide whether the State itself will provide the information, or whether it will be the health plans. However, the issue of accountability is a separate issue which should be of concern to CMS. The rule should make the State responsible for either providing required information or ensuring that health plans provide it. Enrollees and potential enrollees should not bear the consequences of lack of compliance by the State or the health plans.

The January rules also required that the information be provided annually thereafter. Under the proposed rules, enrollees will receive annual information only on their right to request and obtain this information. Compare January § 438.10(e)(1)(i) with proposed § 438.10(f)(2). Enrollees should automatically be given accurate, current, and comparable information on an annual basis so that they can, during open enrollment periods, decide whether to stay in the plan or switch to another plan. Over the year, there can be changes in a health plan. Without annual information, enrollees will have to keep track of piece meal changes that may have occurred. Private insurance enrollees typically are given information during this time. Medicaid enrollees deserve no less. Annual information also is important to remind individuals about how to access services, especially those services which are not included in the plan contract.

In the discussion regarding the requirement that enrollees be told of any limits on freedom of choice among network providers (Proposed 438.10(f)(6)), the Preamble states that this information must clearly indicate which providers are available under any subnetworks with which the plan contracts and must explain the procedures under which an enrollee may request a referral to an affiliate provider not included in the subnetwork. 66 Fed. Reg. at 43624. This is important for women who may be obtaining services from a medical group which limits access to reproductive health services. CMS should include this requirement in the regulation. The proposed rules add § 438.10(f) to require States to notify enrollees of their disenrollment rights at least annually and at least 60 days prior to each open enrollment period. We support this provision.

A significant omission is a requirement that health plans that exclude coverage of certain counseling or referral services on the basis of moral or religious objections, provide information on those services. Proposed § 438.102(c)(2). We have the same concerns and recommendations as described above under the information requirements -that a sufficient accommodation is provided for these entities by allowing them to exclude these services and that omitting any responsibility to provide information to beneficiaries eliminates the crucial means for women to access information at the point of service. This discounts the moral and religious beliefs and the health care needs of female Medicaid beneficiaries. Female Medicaid beneficiaries should not be discriminated against. They should at least receive information about a toll-free number that can provide them with needed information.

The proposed rules include certain reasons for disenrollment for cause that were included in the January regulations. Three of these are important for female enrollees who, while ensured free access to family planning services under the Medicaid Act, may not be able to access those services through their managed care entity. By allowing disenrollment for cause, the proposed rule protects the ability of women to obtain covered family planning and other reproductive health services. Thus, we support including the following as reasons for disenrollment for cause:

(1) the plan does not, because of moral or religious objections, cover the service the enrollee seeks;

(2) the enrollee needs related services (for example a cesarean section and tubal ligation) to be performed at the same time; not all related services are available within the network; and the enrollee’s primary care provider or another provider determines that receiving the services separately would subject the enrollee to unnecessary risk;

(3) other reasons, including but not limited to, poor quality of care, lack of access to services covered under the contract, or lack of access to providers experienced in dealing with the enrollee’s health care needs.

See proposed § 438.56(d)(2); January § 438.56(d)(2).

We support the clarifying language that, under the BBA, beneficiaries have the right to a free choice of provider to obtain family planning services. Thus, beneficiaries enrolled in managed care can seek family planning in or out of network, as long as the provider is a qualified, participating Medicaid provider. Proposed § 431.51(a)(4), (5), (6).

The proposed rule includes a requirement in § 438.206(b)(4) that if the network cannot provide the necessary services covered under the contract needed by the enrollee, these services must be adequately and timely covered out-of-network for as long as the health plan is unable to provide them. We support this provision.

In addition, whereas the January rules required States to directly ensure that health plans meet this and other access standards, the proposed rule requires only that the state ensure compliance through their contracts with health plans. Compare January § 438.206(d) with proposed § 438.206(b). This change invites States to argue that their monitoring and oversight obligations are complete if the contract contains the appropriate terms. The rule should be amended to require direct accountability

by States.

The proposed rule includes a requirement that the out-of-network services do not result in greater costs to the enrollee than would occur if the services were furnished within the network. We support this provision. Proposed § 438.206(b)(5).

For beneficiaries in rural areas, the January rule would have allowed individuals to access out-ofnetwork providersif the service or type of provider were not available within the health plan. January 438.52(b)(2)(ii)(A). This access provision is included in the proposed rule, except that “type of provider” is defined to mean “in terms of training, experience, and specialization.” Proposed § 438.52(b)(2)(ii)(A). We are concerned that this change will allow a health plan to deny out-ofnetwork access if there is a provider who has the training, experience, and specialization in the network, but who may be otherwise unavailable due to, for example, geographic inaccessibility or long waits for getting appointments. The added language should be deleted.

Under the January rules, out-of-plan access also was available in managed care plans in rural areas where a beneficiary has a pre-existing relationship with an out-of-network provider and that provider is the primary source of care for the beneficiary. January § 438.52(b)(2)(ii)(B). In promulgating this January rule, CMS clarified that it applied as long as the provider continued to be the main source of the service. Id. In its discussion, CMS stated that the rule would apply to, for example, pregnant women who have initiated prenatal care prior to enrollment. January, 66 Fed. Reg. at 6260. In the proposed rule, CMS would limit a beneficiary to continue this relationship for a maximum of up to 60 days only, during which time the provider would be given an opportunity to join a health plan. If

the provider chose not to join or did not meet the qualifications to join, the enrollee is to be transitioned (either by choosing a provider or by assignment) to a health plan provider. Proposed § 438.52(b)(2)(ii)(B). This can cause serious continuity of care problems for pregnant women who have started their prenatal care with an out-of-network provider. Many providers are reluctant to take pregnant women as patients in their second or third trimester, especially if they are perceived as or are high risk. This can be a common issue, especially since there is presumptive eligibility for pregnant women, and presumptive eligibility providers are not always the same as managed care providers. This rule can have the effect of leaving pregnant women with no provider or delaying continued prenatal care. The 60-day limit should be deleted.

The proposed rules also maintain the right of rural enrollees to access services out-of-network where (1) the only plan or provider available to the recipient does not, because of moral or religious objections, provide the service the enrollee seeks; (2) the recipient’s primary care provider or other provider determines that the recipient needs related services that would subject the recipient to unnecessary risk if received separately (for example, a cesarean section and tubal ligation) and not all of the related services are available within the network); or (3) the State determines that other circumstances warrant out-of-network treatment. Proposed §§ 438.52(b)(2)(ii)(C), (b)(2)(ii)(D), (b)(2)(ii)(E); January §§ 438.52(b)(2)(ii)(C), (b)(2)(ii)(D), (b)(2)(ii)(E). We support this provision. However, we are concerned about the confusing and seemingly contradictory discussion in the preamble in which CMS would not require States to have any fee-for-service access to be in compliance with these out-of-network provisions in rural areas. Allowing individuals to disenroll

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