Centers for Medicare & Medicaid Services (CMS) announced two proposed rules: Ensuring Access to Medicaid services (hereinafter referred to as “Access Rule”), and the Managed Care Access, Finance, and Quality (hereinafter referred to “Managed Care Rule”). The deadlines for submitting comments are July 3.

The Administration has stated the release of both rules is the first step of agency action to push forward objectives outlined in multiple executive orders, most recently on April 16. (See LeadingAge blog responses to this executive order, here and here.) If implemented as proposed, the rules aim to increase access to, and the quality of, Medicaid-funded services through: transparency, imposition of accountability metrics, standardization of data collection, and reporting at the state level for comparison of programs across states. Medicaid programs are large and complex, and long-term services and supports comprise only a small portion of Medicaid-funded services. As such, only segments of these rules will have effects on LeadingAge members.

Access Rule

Within the Access Rule, CMS proposes a number of actions to promote beneficiary involvement in and education on the Medicaid program. First, the rule proposes changes to the Medical Care Advisory Committee (MCAC) to ensure more participation from actual beneficiaries of services.  The rule establishes minimum percentages of 25% of committee composition to be individuals or family members of individuals who are enrolled in Medicaid programs. In addition, it recommends that the MCACs include the full spectrum of Medicaid beneficiaries, including children enrolled in CHIP, traditional expansion populations, and older adults and people with disabilities. LeadingAge applauds these proposed increases in transparency and consumer engagement.

The rule makes the following proposals regarding states’ administration of home and community based services delivered through 1915 (c), (i), (j), (k), programs:

• Person-centered planning (PCP): establishes reassessment and PCP review timelines annually for 90% of enrollees receiving HCBS in 1915 I, (i), ( j), (k), programs.
• Grievance Systems: requires states to establish a beneficiary grievance system for fee for service HCBS.
• Incident Management System: requires states to amend critical incident definitions to include minimum requirements. Additionally, states must adopt electronic incident management systems that collect, track, and trend data on critical incidents. This system should cross reference and be interoperable with data from claims, protective services, and fraud units, among others to identify unreported critical incidents including missed service delivery. States will have three years to implement these changes in FFS and should be included in contract amendments beginning on or after years from the effective date of the rule.
• HCBS Payment Adequacy: requires 80% of Medicaid reimbursements, including supplemental payments, to support compensation to direct care workers in three service categories: homemaker, home health aide, and personal care. This provision has received a lot of media attention and LeadingAge looks forward to feedback from members on this proposal, as well as others outlined in this article.

CMS proposes elimination of the Access, Monitoring, and Review Plans (AMRP) in fee for service to be replaced by publicly available rate postings. CMS enacted AMRPs in the 2015 final rule requiring states to review participant access to services as a function of provider rate adequacy. Because of state complaints and challenges, CMS is proposing to eliminate AMRPs in favor of requiring states to develop a website housing information on rates paid to providers. The shift towards transparency will offer CMS and providers leverage in negotiating need for additional funding to assure adequate service access and availability to Medicaid enrollees.

Managed Care Rule

The managed care rule’s goal is aligned with that of the access rule–increase access to services in managed care programs. The rule is comprehensive in its approach and below are some highlighted examples of interest to aging services providers:

• CMS is proposing to use the Average Commercial Rate ACR as an upper limit for inpatient services like nursing facility services. ACR review would include any related state directed payments.
• Changes to documentation and transparency for state directed payments to better compel value-based payments and quality improvement initiatives. CMS is considering caps on state directed payments as percentages of capitation payments in particular rate cells. In some states, this will require rethinking of directed payments, possibly including provider taxes for specific provider classes like nursing facilities.
• Clarifies that the approval and use of In Lieu of Services (ILOS) can be used as preventive measures. Preventive ILOS can be approved for either short or longer term substitution of a covered state plan service. These changes and clarifications are intended to allow states and managed care organizations to better address and support health related social needs (HRSN) and reduce costs associated with Medicaid enrollees.
  • ILOS is a priority item in this proposed rule as a manner MCOs can use to pay for innovative bridge services. These services offer cost effective alternatives to state plan covered services. CMS focus on this area demonstrates a commitment to promote MCO application for and state approval of ILOS to better utilize the risk-based payment agreements between states and MCOs.
  • Providers offering services outside of the normal scope of your state’s managed care contracts could consider how their position reduces costs, reduces needs for more expensive services, and maintains participant independence as bargaining leverage. This leverage can be used in negotiations with managed care network staff.

These rules impose significant requirements and infrastructure development on states. CMS does not have authority to fund their proposals, though the additional requirements will certainly cost states in time, energy, and funding. Implementation timelines for various provisions range from 60 days following publication as final to three years post publication. Once those dates are final, providers will be on the clock, also. The imposition of data reporting and standardization on states will filter down to providers as states demonstrate compliance with the rules.

Transparency and service access have been recurring themes from the current Administration. Similarly, recent recommendations from advisory bodies within and aligned with the federal government have touched on similar threads. LeadingAge remains supportive of efforts to increase transparency and highlight the quality of services delivered by our members. We look forward to your feedback and conversation to enhance our comments on these rules while balancing increased transparency with moderation of administrative burden on providers.