United States: Viewing CMS' Proposed Rule On The Equal Access Requirement Through A Legal Lens

Last Updated: April 6 2018
Article by Christian Springer

Our readers may remember our discussion of the ongoing saga surrounding enforcement of the entitlement to Medicaid. We have covered it several times before ( here and here) on this blog. Aside from discussing the topic because it allows us to flex our legal muscle with italicized case names, we also believe it's critical for our readers to understand how Medicaid entitlement has evolved over time. Today, we discuss a proposed rule recently published by the Center for Medicare and Medicaid Services that raises some interesting legal considerations regarding the enforceability of § 1902(a)(30)(A), also referred to as the "equal access" requirement. In short, the proposed rule1 would reduce the administrative burden for states that is associated with the process for documenting whether Medicaid payments in fee-for-service (FFS) systems are sufficient to enlist providers to assure beneficiary access to covered care and services.

BACKGROUND

Under § 1902(a)(30)(A) of the Social Security Act, states are required to "assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area" (equal access requirement). CMS has historically relied on state certifications and available supporting information that Medicaid payment reductions met the equal access requirement.

This changed on November 2, 2015 when CMS published a final rule with comment period that imposed a data-driven process for states to meet their statutory obligations under the equal access requirement. Under this data driven process, referred to as the "Access Monitoring Review Plan" (AMRP), states must empirically support their determination of whether beneficiaries have sufficient access to care. States must update the AMRP at least every three years for eight different categories of services, such as primary care, behavioral health, home health services, and additional types of services selected by the state. At a minimum, the AMRP must document the specific measures that the state uses to analyze access to care (e.g. time and distance standards, provider participation in Medicaid, providers with open panels, providers accepting new Medicaid beneficiaries, service utilization patterns, identified beneficiary needs, data on beneficiary and provider feedback and suggestions for improvement, etc.).

According to CMS, many states with high rates of comprehensive, risk-based managed care complained about the administrative burden associated with the AMRP requirements during the first year of implementation. Now CMS believes that certain changes to its AMRP regulations are warranted based on its implementation experience thus far.

PROPOSED RULE

To address the administrative burden described above, CMS is proposing to establish a threshold over which certain states with high managed care enrollment will be exempt from submitting an AMRP (managed care exemption). States with an overall comprehensive, risk-based managed care enrollment rate of 85 percent or greater would be exempt. Moreover, states qualifying under the managed care exemption would not be required to conduct a public process and access analysis for payment reductions as required under current regulations. Instead, these states would need to submit alternative information supporting compliance with section § 1902(a)(30)(A). In the proposed rule, CMS solicits comments on the types of alternative data and analysis that states may present to support compliance with the statute.

Furthermore, CMS is proposing to codify a broader exemption to the proposed rate reductions or restructuring procedures in § 447.203(b)(6). For this exemption to apply, states do not need to have high rates of managed care enrollment. Rather, the exemption applies for payment reductions within a state plan service category that are less than 4 percent of overall spending on the category within a single state fiscal year, and less than 6 percent over 2 consecutive state fiscal years. CMS believes that changes below this 4 percent threshold (nominal reductions) are generally unlikely to diminish access to care. CMS solicits comments on whether the threshold should be higher or lower.

Finally, CMS is proposing that states will not be required to provide a detailed analysis of the changes' effect on access. CMS states that their experience has shown these analyses are limited in their accuracy and usefulness due to inherent uncertainties. CMS believes that the monitoring and corrective action provisions in the regulations ensure that access remains undiminished after a payment rate change goes into effect. CMS also believes that the public input process for payment reductions in excess of the 4 percent threshold will help it understand the potential effects of any proposed changes. Therefore, CMS is proposing to instead require that states submit an "assurance that current access is consistent with the requirements of § 1902(a)(30)(A) at the time of the SPA submission, and the baseline data that supports this assurance."

LEGAL CONSIDERATIONS

Many Medicaid providers and beneficiaries have reason to be concerned with CMS' proposal because it may lead to weaker federal oversight of provider payments and access to care.

As alluded to in our previous blog piece, the Supreme Court dramatically curtailed the use of the federal Civil Rights statute to enforce federal law against the states in Gonzaga v. Doe. Appellate courts across the country thereafter interpreted Gonzaga as meaning that § 1902(a)(30)(A) could not be enforced via § 1983 because § 1902(a)(30)(A) does not confer a "right" to providers. (See e.g., Long-Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50 (1st Cir. 2004); Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005)). Then, in Armstrong v. Exceptional Child Center, 135 S. Ct. 1378 (2015), the Supreme Court also effectively foreclosed enforcement of the equal access requirement under the Supremacy Clause of the United States Constitution. Therefore, to the extent that a state Medicaid program violates § 1902(a)(30)(A), it appears that solely CMS is responsible for providing the appropriate remedy: the withholding of federal funds.

In response to these court decisions, CMS promulgated the November 2015 rule discussed above that established the AMRP. But in doing so, CMS clarified that "provider and beneficiary challenges are not available to supplement CMS' review and enforcement" pursuant to the AMRP regulations. In other words, the AMRP gives CMS a framework under which to evaluate whether a state Medicaid proposal is compliant with the equal access requirement, but it should not be interpreted as giving beneficiaries or providers a cause of action for seeking judicial review.

Now that the proposed rule exempts some states from the AMRP and other related provisions, however, some providers, beneficiaries and their advocates may be concerned that there is insufficient federal oversight to ensure states comply with the equal access requirement. And without a clear avenue for seeking judicial review, federal oversight is really all that's left.

Providers and patient groups should be sure to provide input on CMS' proposed rule, particularly on the question of what "alternative information" will replace the requirement to submit an AMRP. The public comment period closes at 5:00pm on May 22, 2018.

Footnotes

1 "Methods for Assuring Access to Covered Medicaid Services—Exemptions for States with High Managed Care Penetration Rates and Rate Reduction Threshold," 83 Fed. Reg. 12696 (March 23, 2018).

To view Foley Hoag's Medicaid and the Law blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
12 Oct 2018, Other, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions