On November 2, 2015, CMS published a final rule with comment period that is intended to provide a transparent, data-driven process for states to follow when they set Medicaid provider payment rates, effective January 4, 2016. Under the Social Security Act, state plans must ensure that payment rates for Medicaid services “are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that services are available to Medicaid eligible individuals to the extent that they are available to the general population in the geographic area.” The final rule requires states to review data and trends to evaluate access to care for covered services and conduct public processes to obtain public input on the adequacy of access to covered services in the Medicaid program. Should access deficiencies be identified, the state must submit to CMS within 90 days after discovery a corrective action plan on how it will achieve measurable and sustainable improvements. Notably, the final rule only focuses on the “access” portion of the statute; there is no more than lip services to the “quality of care” aspect of the law. Further, the final rule only applies to Medicaid fee-for-service rates. The final rule is especially important for providers in light of the Supreme Court’s decision in Armstrong v. Exceptional Child Center, Inc. holding that Medicaid providers do not have a cause of action to challenge a state’s Medicaid reimbursement rates. This means that challenges to the adequacy of rates will now likely gravitate to the state level.

The final rule includes specific steps a state must take to review access after reducing provider rates or restructuring payments in a way that could diminish access. While the May 6, 2011 proposed rule would have required such state reviews to include a comparison of Medicaid payment rates to customary charges and Medicare, commercial payments, or provider costs, the final rule streamlines the information states must compile and provides states with enhanced flexibility in demonstrating a comparative analysis of Medicaid payment rates. The final rule also recognizes electronic publication as an optional means for states to provide public notice of proposed changes in rates or ratesetting methodologies that the state intends to include in a Medicaid state plan amendment. In addition, CMS is inviting comments on whether additional adjustments to the access review requirements would be warranted, including the scope of regular state access reviews in the absence of a triggering circumstance. Comments will be accepted on this specific issue until January 4, 2016. 

CMS concurrently published a request for information (RFI) seeking public input on additional data sources and approaches that could be used to more uniformly assess whether Medicaid beneficiary access to care is sufficient in light of the many factors that affect such access (e.g., payment level, geography, health care workforce, scope of practice approaches, delivery system designs, and populations served). In particular, CMS invites input on the feasibility of and methodologies related to the following four approaches: (1) developing a core set of measures of access on which all states would monitor and publicly report; (2) measuring access to long term care and home and community based services; (3) setting national access to care thresholds; and (4) establishing a process for access to care that would allow beneficiaries experiencing access issues to raise and seek resolution of their concerns. Comments on the RFI are due January 4, 2016.