NHeLP’s Comments on Proposed Rule Governing Medicaid Rate Setting

Re: File Code CMS-2328-P 
Medicaid Program: Methods for Assuring Access to covered Medicaid Services 
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Baltimore, MD 21244-8016
Dear Sir or Madam:
Writing on behalf of itself and the undersigned organizations, the National Health Law Program (NHeLP) appreciates the opportunity to comment on the Proposed Rule entitled ?Medicaid Program: Methods for Assuring Access to Covered Medicaid Services,? published in the Federal Register on May 6, 2011 (76 Fed. Reg. 26,342).
Founded in 1970, NHeLP is a public interest law firm working to advance access to quality health care and protect the legal rights of low-income and underserved people. As such, the availability of sufficient access to health care providers and services by Medicaid enrollees is central to NHeLP?s mission. The regulations governing setting of provider reimbursement rates by states, and CMS?s oversight of that process, are a critical part of assuring that our clients receive quality health care services.
The necessity of strong CMS oversight of Medicaid rate-setting by the states is extremely important, now more than ever. Historically, lawsuits by private parties, both Medicaid enrollees and providers, have kept some pressure on the states to keep them from slashing provider rates to meet budgetary objectives without considering the impact on access to care. With private enforcement of 42 U.S.C. § 1396a(a)(30)(A) (?Section (30)(A)?) at risk due to the pending Douglas v. Independent Living Center case at the Supreme Court, CMS?s role in assuring that the mandates of this Medicaid Act provision are met by the states will be all the more critical. CMS will have to provide strict oversight to ensure that states are setting and maintaining their Medicaid rate structures at levels to assure that there is sufficient provider participation so that Medicaid enrollees can access necessary services.
Comments made in the Preamble to the proposed regulation make it clear that states are not currently following the mandates of Section (30)(A), which makes strong federal oversight critical. The Preamble indicates that, when CMS has sought clarification on states? process for determining that access standards are met, it has become clear that states are not taking the determination seriously. The Preamble states: ?When asked for additional detail on the methodology that States used to determine compliance with the access requirement, only a few Sates indicated that they relied upon actual data to make a determination.? (76 Fed. Reg. at 26,348). Clearly, such determinations must be made on actual data, or they are meaningless. This confirms that a strongly enhanced regulatory framework is needed to ensure state compliance.
General Comments on Proposed Regulations 
NHeLP supports CMS?s efforts to make states more accountable for assuring that there is sufficient access to quality services for their Medicaid populations, both when proposing provider rate reductions and also on an ongoing basis to make sure that rates are not falling below levels necessary to assure adequate provider participation. NHeLP also strongly supports provisions that assure the public the opportunity to review and comment on proposed rate reductions before they are submitted for CMS review. However, NHeLP believes that the regulations, as proposed, do not provide for sufficiently clear criteria for measuring access and should be strengthened. Otherwise, the regulations will not even begin to resemble a federal enforcement scheme. The proposed regulations should be modified to set clear standards against which the agency will measure access to care in state Medicaid programs and should set uniform measures of access for which states must collect data. Further, NHeLP disagrees with CMS?s position that the regulations implementing Section (30)(A) should not be applicable to Medicaid managed care rates. Finally, NHeLP believes it is very important for the regulations to clearly state that (1) no State Plan Amendments lowering rates may be implemented prior to CMS review and approval, and (2) public notice and comment provisions apply to rate reductions enacted by state legislatures. These various points are discussed below.
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