Rule2024-08085
Medicaid Program; Medicaid and Children's Health Insurance Program (CHIP) Managed Care Access, Finance, and Quality
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 10, 2024
Effective
July 9, 2024
Issuing agencies
Health and Human Services DepartmentCenters for Medicare & Medicaid Services
Abstract
This final rule will advance CMS's efforts to improve access to care, quality and health outcomes, and better address health equity issues for Medicaid and Children's Health Insurance Program (CHIP) managed care enrollees. The final rule addresses standards for timely access to care and States' monitoring and enforcement efforts, reduces State burdens for implementing some State directed payments (SDPs) and certain quality reporting requirements, adds new standards that will apply when States use in lieu of services and settings (ILOSs) to promote effective utilization and that specify the scope and nature of ILOSs, specifies medical loss ratio (MLR) requirements, and establishes a quality rating system for Medicaid and CHIP managed care plans.
Full Text
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[Federal Register Volume 89, Number 92 (Friday, May 10, 2024)]
[Rules and Regulations]
[Pages 41002-41285]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08085]
[[Page 41001]]
Vol. 89
Friday,
No. 92
May 10, 2024
Part IV
Department of Health and Human Services
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Centers for Medicare & Medicaid Services
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42 CFR Parts 430, 438, and 457
Medicaid Program; Medicaid and Children's Health Insurance Program
(CHIP) Managed Care Access, Finance, and Quality; Final Rule
Federal Register / Vol. 89 , No. 92 / Friday, May 10, 2024 / Rules
and Regulations
[[Page 41002]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 430, 438, and 457
[CMS-2439-F]
RIN 0938-AU99
Medicaid Program; Medicaid and Children's Health Insurance
Program (CHIP) Managed Care Access, Finance, and Quality
AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of
Health and Human Services (HHS).
ACTION: Final rule.
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SUMMARY: This final rule will advance CMS's efforts to improve access
to care, quality and health outcomes, and better address health equity
issues for Medicaid and Children's Health Insurance Program (CHIP)
managed care enrollees. The final rule addresses standards for timely
access to care and States' monitoring and enforcement efforts, reduces
State burdens for implementing some State directed payments (SDPs) and
certain quality reporting requirements, adds new standards that will
apply when States use in lieu of services and settings (ILOSs) to
promote effective utilization and that specify the scope and nature of
ILOSs, specifies medical loss ratio (MLR) requirements, and establishes
a quality rating system for Medicaid and CHIP managed care plans.
DATES:
Effective Dates: These regulations are effective on July 9, 2024.
Applicability Dates: In the Supplemental Information section of
this final rule, we provide a table (Table 1), which lists key changes
in this final rule that have an applicability date other than the
effective date of this final rule.
FOR FURTHER INFORMATION CONTACT:
Rebecca Burch Mack, (303) 844-7355, Medicaid Managed Care.
Laura Snyder, (410) 786-3198, Medicaid Managed Care State Directed
Payments.
Alex Loizias, (410) 786-2435, Medicaid Managed Care State Directed
Payments and In Lieu of Services and Settings.
Elizabeth Jones, (410) 786-7111, Medicaid Medical Loss Ratio.
Jamie Rollin, (410) 786-0978, Medicaid Managed Care Program
Integrity.
Rachel Chappell, (410) 786-3100, and Emily Shockley, (410) 786-
3100, Contract Requirements for Overpayments.
Carlye Burd, (720) 853-2780, Medicaid Managed Care Quality.
Amanda Paige Burns, (410) 786-8030, Medicaid Quality Rating System.
Joshua Bougie, (410) 786-8117, and Chanelle Parkar, (667) 290-8798,
CHIP.
SUPPLEMENTARY INFORMATION:
Applicability and Compliance Timeframes
States are required to comply by the effective date of the final
rule or as otherwise specified in regulation text.
States will not be held out of compliance with the changes adopted
in this final rule until the applicability date indicated in regulation
text for each provision so long as they comply with the corresponding
standard(s) in 42 CFR parts 438 and 457 contained in the 42 CFR, parts
430 to 481, effective as of October 1, 2023. The following is a summary
of the applicability dates in this final rule:
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I. Medicaid and CHIP Managed Care
A. Background
As of September 2023, the Medicaid program provided essential
health care coverage to more than 88 million \1\ individuals, and, in
2021, had annual outlays of more than $805 billion. In 2021, the
Medicaid program accounted for 18 percent of national health
expenditures.\2\ The program covers a broad array of health benefits
and services critical to underserved populations, including low- income
adults, children, parents, pregnant individuals, the elderly, and
people with disabilities. For example, Medicaid pays for approximately
42 percent of all births in the U.S.\3\ and is the largest payer of
long-term services and supports (LTSS),\4\ services to treat substance
use disorder, and services to prevent and treat the Human
Immunodeficiency Virus.\5\ Ensuring beneficiaries can access covered
services is a crucial element of the Medicaid program. Depending on the
State and its Medicaid program structure, beneficiaries access their
health care services using a variety of care delivery systems; for
example, fee-for-service (FFS) and managed care, including through
demonstrations and waiver programs. In 2021, 74.6 percent \6\ of
Medicaid beneficiaries were enrolled in comprehensive managed care
plans; the remaining individuals received all or some services through
FFS.
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\1\ September 2023 Medicaid and CHIP Enrollment Snapshot.
Accessed at <a href="http://www.medicaid.gov/sites/default/files/2023-10/september-2023-medicaid-chip-enrollment-trend-snapshot.pdf">http://www.medicaid.gov/sites/default/files/2023-10/september-2023-medicaid-chip-enrollment-trend-snapshot.pdf</a>.
\2\ CMS National Health Expenditure Fact Sheet. Accessed at
<a href="https://www.cms.gov/data-research/statistics-trends-and-reports/national-health-expenditure-data/nhe-fact-sheet">https://www.cms.gov/data-research/statistics-trends-and-reports/national-health-expenditure-data/nhe-fact-sheet</a>.
\3\ National Center for Health Statistics. Key Birth Statistics
(2020 Data. Final 2022 Data forthcoming). Accessed at <a href="https://www.cdc.gov/nchs/nvss/births.htm">https://www.cdc.gov/nchs/nvss/births.htm</a>.
\4\ Colello, Kirsten J. Who Pays for Long-Term Services and
Supports? Congressional Research Service. Updated June 15, 2022.
Accessed at <a href="https://crsreports.congress.gov/product/pdf/IF/IF10343">https://crsreports.congress.gov/product/pdf/IF/IF10343</a>.
\5\ Dawson, L. and Kates, J. Insurance Coverage and Viral
Suppression Among People with HIV, 2018. September 2020. Kaiser
Family Foundation. Accessed at<a href="https://www.kff.org/hivaids/issue-brief/insurance-coverage-and-viral-suppression-among-people-with-hiv-2018/">https://www.kff.org/hivaids/issue-brief/insurance-coverage-and-viral-suppression-among-people-with-hiv-2018/</a>.
\6\ <a href="https://www.medicaid.gov/medicaid/managed-care/enrollment-report/index.html">https://www.medicaid.gov/medicaid/managed-care/enrollment-report/index.html</a>.
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With a program as large and complex as Medicaid, to promote
consistent access to health care for all beneficiaries across all types
of care delivery systems in accordance with statutory requirements,
access regulations need to be multi-factorial. Strategies to enhance
access to health care services should reflect how people move through
and interact with the health care system. We view the continuum of
health care access across three dimensions of a person-centered
framework: (1) enrollment in coverage; (2) maintenance of coverage; and
(3) access to high-quality services and supports. Within each of these
dimensions, accompanying regulatory, monitoring, and/or compliance
actions may be needed to ensure access to health care is achieved and
maintained.
In early 2022, we released a request for information (RFI) \7\ to
collect feedback on a broad range of questions that examined topics
such as: challenges with eligibility and enrollment; ways we can use
data available to measure, monitor, and support improvement efforts
related to access to services; strategies we can implement to support
equitable and timely access to providers and services; and
opportunities to use existing and new access standards to help ensure
that Medicaid and CHIP payments are sufficient to enlist enough
providers. Some of the most common feedback we received through the RFI
related to promoting cultural competency in access to and the quality
of services for beneficiaries across all dimensions of health care and
using payment rates as a driver to increase provider participation in
Medicaid and CHIP programs. Commenters were also interested in
opportunities to align approaches for payment regulation and compliance
across Medicaid and CHIP delivery systems and services.
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\7\ CMS Request for Information: Access to Coverage and Care in
Medicaid & CHIP. February 2022. For a full list of question from the
RFI, see <a href="https://www.medicaid.gov/medicaid/access-care/downloads/access-rfi-2022-questions.pdf">https://www.medicaid.gov/medicaid/access-care/downloads/access-rfi-2022-questions.pdf</a>.
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As noted above, the first dimension of access focuses on ensuring
that eligible people are able to enroll in the Medicaid program. Access
to Medicaid enrollment requires that a potential beneficiary knows if
they are or may be eligible for Medicaid, is aware of Medicaid coverage
options, and is able to easily apply for and enroll in coverage. The
second dimension of access in this continuum relates to maintaining
coverage once the beneficiary is enrolled in the Medicaid program.
Maintaining coverage requires that eligible beneficiaries are able to
stay enrolled in the program without interruption, or that they know
how to and can smoothly transition to other health coverage, such as
CHIP, Marketplace coverage, or Medicare, when they are no longer
eligible for Medicaid coverage. In September 2022, we published a
proposed rule, Streamlining the Medicaid, Children's Health Insurance
Program, and Basic Health Program Application, Eligibility,
Determination, Enrollment, and
[[Page 41005]]
Renewal Processes (87 FR 54760; hereinafter the ``Streamlining
Eligibility & Enrollment proposed rule'') to simplify the processes for
eligible individuals to enroll and retain eligibility in Medicaid,
CHIP, or the Basic Health Program (BHP).\8\ This rule was finalized on
March 27, 2024.\9\
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\8\ We finalized several provisions from the proposed rule in a
September 2023 Federal Register publication entitled Streamlining
Medicaid; Medicare Savings Program Eligibility Determination and
Enrollment. See 88 FR 65230.
\9\ <a href="https://www.federalregister.gov/public-inspection/2024-06566/medicaid-program-streamlining-the-medicaid-childrens-health-insurance-program-and-basic-health">https://www.federalregister.gov/public-inspection/2024-06566/medicaid-program-streamlining-the-medicaid-childrens-health-insurance-program-and-basic-health</a>.
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The third dimension is access to services and supports and was
addressed in a proposed rule published on May 3, 2023 (88 FR 28092); we
are finalizing it in this final rule. This final rule is focused on
addressing additional critical elements of access: (1) potential access
(for example, provider availability and network adequacy); (2)
beneficiary utilization (the use of health care and health services);
and (3) beneficiaries' perceptions and experiences with the care they
did or did not receive. These terms and definitions build upon our
previous efforts to examine how best to monitor access.\10\
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\10\ Kenney, Genevieve M., Kathy Gifford, Jane Wishner, Vanessa
Forsberg, Amanda I. Napoles, and Danielle Pavliv. ``Proposed
Medicaid Access Measurement and Monitoring Plan.'' Washington, DC:
The Urban Institute. August 2016. Accessed at <a href="https://www.medicaid.gov/sites/default/files/2019-12/monitoring-plan.pdf">https://www.medicaid.gov/sites/default/files/2019-12/monitoring-plan.pdf</a>.
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In addition to the three above referenced rulemakings (the
Streamlining Eligibility & Enrollment proposed rule, this final rule on
managed care, and the Ensuring Access to Medicaid Services proposed
rule), we are also engaged in non-regulatory activities to improve
access to health care services across Medicaid delivery systems.
Examples of these activities include best practices toolkits and other
resources for States, such as the ``Increasing Access, Quality, and
Equity in Postpartum Care in Medicaid and CHIP'' Toolkit \11\ and
direct technical assistance to States through learning collaboratives,
affinity groups and individual coaching to implement best practices,
including the Infant Well-Child Learning Collaborative \12\ and the
Foster Care Learning Collaborative.\13\ As noted earlier, the
Streamlining Eligibility & Enrollment proposed rule addresses the first
two dimensions of access to health care: (1) enrollment in coverage and
(2) maintenance of coverage. Through that proposed rule, we sought to
streamline Medicaid, CHIP and BHP eligibility and enrollment processes,
reduce administrative burden on States and applicants toward a more
seamless eligibility and enrollment process, and increase the
enrollment and retention of eligible individuals. Through the Ensuring
Access to Medicaid Services final rule, and this final rule involving
managed care, we outline additional steps to address the third
dimension of the health care access continuum: access to services. This
rule also addresses quality and financing of services in the managed
care context. We sought to address a range of access-related challenges
that impact how beneficiaries are served by Medicaid across all its
delivery systems.
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\11\ <a href="https://www.medicaid.gov/medicaid/quality-of-care/quality-improvement-initiatives/maternal-infant-health-care-quality/postpartum-care/index.html">https://www.medicaid.gov/medicaid/quality-of-care/quality-improvement-initiatives/maternal-infant-health-care-quality/postpartum-care/index.html</a>.
\12\ <a href="https://www.medicaid.gov/medicaid/quality-of-care/quality-improvement-initiatives/well-child-care/index.html">https://www.medicaid.gov/medicaid/quality-of-care/quality-improvement-initiatives/well-child-care/index.html</a>.
\13\ <a href="https://www.medicaid.gov/medicaid/quality-of-care/quality-improvement-initiatives/foster-care-learning-collaborative/index.html">https://www.medicaid.gov/medicaid/quality-of-care/quality-improvement-initiatives/foster-care-learning-collaborative/index.html</a>.
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The volume of Medicaid beneficiaries enrolled in a managed care
program in Medicaid has grown from 81 percent in 2016 to 85 percent in
2021, with 74.6 percent of Medicaid beneficiaries enrolled in
comprehensive managed care organizations in 2021.\14\ We note that
States may implement a Medicaid managed care delivery system using four
Federal authorities--sections 1915(a), 1915(b), 1932(a), and 1115(a) of
the Social Security Act (the Act); each is described briefly below.
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\14\ <a href="https://www.medicaid.gov/medicaid/managed-care/enrollment-report/index.html">https://www.medicaid.gov/medicaid/managed-care/enrollment-report/index.html</a>.
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Under section 1915(a) of the Act, States can implement a voluntary
managed care program by executing a contract with organizations that
the State has procured using a competitive procurement process. To
require beneficiaries to enroll in a managed care program to receive
services, a State must obtain approval from CMS under two primary
authorities:
<bullet> Through a State plan amendment (SPA) that meets standards
set forth in section 1932(a) of the Act, States can implement a
mandatory managed care delivery system. This authority does not allow
States to require beneficiaries who are dually eligible for Medicare
and Medicaid (dually eligible beneficiaries), American Indians/Alaska
Natives (except as permitted in section 1932 (a)(2)(C) of the Act), or
children with special health care needs to enroll in a managed care
program. State plans, once approved, remain in effect until modified by
the State.
<bullet> We may grant a waiver under section 1915(b) of the Act,
permitting a State to require all Medicaid beneficiaries to enroll in a
managed care delivery system, including dually eligible beneficiaries,
American Indians/Alaska Natives, or children with special health care
needs. After approval, a State may operate a section 1915(b) waiver for
a 2-year period (certain waivers can be operated for up to 5 years if
they include dually eligible beneficiaries) before requesting a renewal
for an additional 2- (or 5-) year period.
We may also authorize managed care programs as part of
demonstration projects under section 1115(a) of the Act that include
waivers permitting a State to require all Medicaid beneficiaries to
enroll in a managed care delivery system, including dually eligible
beneficiaries, American Indians/Alaska Natives, and children with
special health care needs. Under this authority, States may seek
additional flexibility to demonstrate and evaluate innovative policy
approaches for delivering Medicaid benefits, as well as the option to
provide services not typically covered by Medicaid. Such demonstrations
are approvable only if it is determined that the demonstration would
promote the objectives of the Medicaid statute and the demonstration is
subject to evaluation.
The above authorities all permit States to operate their Medicaid
managed care programs without complying with the following standards of
Medicaid law outlined in section of 1902 of the Act:
<bullet> Statewideness (section 1902(a)(1) of the Act): States may
implement a managed care delivery system in specific areas of the State
(generally counties/parishes) rather than the whole State;
<bullet> Comparability of Services (section 1902(a)(10)(B) of the
Act): States may provide different benefits to people enrolled in a
managed care delivery system; and
<bullet> Freedom of Choice (section 1902(a)(23)(A) of the Act):
States may generally require people to receive their Medicaid services
only from a managed care plan's network of providers or primary care
provider.
States that elect to operate a separate CHIP may employ a managed
care delivery system as long as such coverage meets the requirements of
section 2103 of the Act. Specific statutory references to managed care
programs are set out at sections 2103(f)(3) and 2107(e)(1)(N) and (R)
of the Act, which apply specific provisions of sections 1903 and 1932
of the Act related to Medicaid managed care to separate CHIPs. States
that elect Medicaid expansion CHIPs that operate within a managed care
delivery system
[[Page 41006]]
are subject to requirements under section 1932 of the Act.
In the May 6, 2016 Federal Register (81 FR 27498), we published the
``Medicaid and Children's Health Insurance Program (CHIP) Programs;
Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions
Related to Third Party Liability'' final rule (hereinafter referred to
as ``the 2016 final rule'') that modernized the Medicaid and CHIP
managed care regulations to reflect changes in the use of managed care
delivery systems. The 2016 final rule aligned many of the rules
governing Medicaid and CHIP managed care with those of other major
sources of coverage; implemented applicable statutory provisions;
strengthened actuarial soundness payment provisions to promote the
accountability of managed care program rates; strengthened efforts to
reform delivery systems that serve Medicaid and CHIP beneficiaries; and
enhanced policies related to program integrity. The 2016 final rule
applied many of the Medicaid managed care rules to separate CHIP,
particularly in the areas of access, finance, and quality through
cross-references to 42 CFR part 438.
On July 29, 2016, we published the CMCS Informational Bulletin
(CIB) concerning ``The Use of New or Increased Pass-Through Payments in
Medicaid Managed Care Delivery Systems.'' \15\ In the January 18, 2017
Federal Register (82 FR 5415), we published the ``Medicaid Program; The
Use of New or Increased Pass-Through Payments in Medicaid Managed Care
Delivery Systems'' final rule (hereinafter referred to as ``the 2017
final rule''). In the 2017 final rule, we finalized changes to the
transition periods for pass-through payments. Pass-through payments are
defined at Sec. 438.6(a) as any amount required by the State (and
considered in calculating the actuarially sound capitation rate) to be
added to the contracted payment rates paid by the MCO, PIHP, or PAHP to
hospitals, physicians, or nursing facilities that is not for the
following purposes: a specific service or benefit provided to a
specific enrollee covered under the contract; a provider payment
methodology permitted under Sec. 438.6(c)(1)(i) through (iii) for
services and enrollees covered under the contract; a subcapitated
payment arrangement for a specific set of services and enrollees
covered under the contract; graduate medical education (GME) payments;
or Federally-qualified health center (FQHC) or rural health clinic
(RHC) wrap around payments. The 2017 final rule codified the
information in the CIB and gave States the option to eliminate
physician and nursing facility payments immediately or phase down these
pass-through payments over the 5-year transition period if they prefer
and specified the maximum amount of pass-through payments permitted
annually during the transition periods under Medicaid managed care
contract(s) and rate certification(s). That final rule prevented
increases in pass-through payments and the addition of new pass-through
payments beyond those in place when the pass-through payment transition
periods were established in the 2016 final rule.
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\15\ <a href="https://www.medicaid.gov/sites/default/files/federal-policy-guidance/downloads/cib072916.pdf">https://www.medicaid.gov/sites/default/files/federal-policy-guidance/downloads/cib072916.pdf</a>.
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In the November 13, 2020 Federal Register (85 FR 72754), we
published the ``Medicaid Program; Medicaid and Children's Health
Insurance Program (CHIP) Managed Care'' final rule (hereinafter
referred to as the ``2020 final rule'') which streamlined the Medicaid
and CHIP managed care regulatory framework to relieve regulatory
burdens; support State flexibility and local leadership; and promote
transparency, flexibility, and innovation in the delivery of care. The
rule was intended to ensure that the regulatory framework was efficient
and feasible for States to implement in a cost-effective manner and
ensure that States can implement and operate Medicaid and CHIP managed
care programs without undue administrative burdens.
Since publication of the 2020 final rule, the COVID-19 public
health emergency (PHE) challenged States' ability to ensure
beneficiaries' access to high-quality care, ensure adequate provider
payment during extreme workforce challenges, and provide adequate
program monitoring and oversight. On January 28, 2021, Executive Order
(E.O.) 14009, Strengthening Medicaid and the Affordable Care Act, was
signed establishing the policy objective to protect and strengthen
Medicaid and the Affordable Care Act (ACA) and to make high-quality
health care accessible and affordable for every American. It directed
executive departments and agencies to review existing regulations,
orders, guidance documents, policies, and any other similar agency
actions to determine whether such agency actions are inconsistent with
this policy. On April 25, 2022, Executive Order 14070, Continuing To
Strengthen Americans' Access to Affordable, Quality Health Coverage,
was signed directing agencies with responsibilities related to
Americans' access to health coverage to review agency actions to
identify ways to continue to expand the availability of affordable
health coverage, to improve the quality of coverage, to strengthen
benefits, and to help more Americans enroll in quality health coverage.
This final rule aims to fulfill Executive Orders 14009 and 14070 by
helping States to use lessons learned from the PHE and build stronger
managed care programs to better meet the needs of the Medicaid and CHIP
populations by improving access to and quality of care provided.
This rule finalizes new standards to help States improve their
monitoring of access to care by requiring the establishment of new
standards for appointment wait times, use of secret shopper surveys,
use of enrollee experience surveys, and requiring States to submit a
managed care plan analysis of payments made by plans to providers for
specific services, to monitor plans' network adequacy more closely. It
finalizes standards that will apply when States use in lieu of services
and settings to promote effective utilization and that specify the
scope and nature of these services and settings. It also finalizes
provisions that reduce burden for States that choose to direct MCOs,
PIHPs, or PAHPs in certain ways to use their capitation payments to pay
specified providers specified amounts (known as State directed
payments), enhance quality, fiscal and program integrity of State
directed payments, address impermissible redistribution arrangements
related to State directed payments, and add clarity to the requirements
related to medical loss ratio calculations. To improve transparency and
provide valuable information to enrollees, providers, and CMS, this
rule finalizes State website requirements for content and ease of use.
Lastly, this final rule will make quality reporting more transparent
and meaningful for driving quality improvement, reduce burden of
certain quality reporting requirements, and establish State
requirements for implementing a Medicaid and CHIP quality rating system
aimed at ensuring monitoring of performance by Medicaid and CHIP
managed care plans and empowering beneficiary choice in managed care.
Finally, we believe it is important to acknowledge the role of
health equity within this final rule. Medicaid and CHIP provided
coverage for nearly 55 million people from racial and ethnic minority
backgrounds in 2020. In 2020, Medicaid enrollees were also more likely
to live in a rural community and over ten percent of enrollees spoke a
[[Page 41007]]
primary language other than English, while approximately eleven percent
qualified for benefits based on disability status.\16\ Consistent with
Executive Order 13985 \17\ Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government, we are working
to advance health equity across CMS programs consistent with the goals
and objectives we have outlined in the CMS Framework for Health Equity
2022-2032 \18\ and the HHS Equity Action Plan.\19\ That effort includes
increasing our understanding of the needs of those we serve to ensure
that all individuals have access to equitable care and coverage.
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\16\ CMS Releases Data Briefs That Provide Key Medicaid
Demographic Data for the First Time, <a href="https://www.cms.gov/blog/cms-releases-data-briefs-provide-key-medicaid-demographic-data-first-time">https://www.cms.gov/blog/cms-releases-data-briefs-provide-key-medicaid-demographic-data-first-time</a>.
\17\ Executive Order 13985, <a href="https://www.whitehouse.gov/briefing-room/presidentialactions/2021/01/20/executive-order-advancingracial-equity-and-support-or-underservedcommunities-through-the-federal-government/">https://www.whitehouse.gov/briefing-room/presidentialactions/2021/01/20/executive-order-advancingracial-equity-and-support-or-underservedcommunities-through-the-federal-government/</a>.
\18\ CMS Framework for Health Equity 2022-2032: <a href="https://www.cms.gov/files/document/cmsframework-health-equity.pdf">https://www.cms.gov/files/document/cmsframework-health-equity.pdf</a>.
\19\ HHS Equity Action Plan, <a href="https://www.hhs.gov/sites/default/files/hhs-equity-action-plan.pdf">https://www.hhs.gov/sites/default/files/hhs-equity-action-plan.pdf</a>.
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A key part of our approach will be to work with States to improve
measurement of health disparities through the stratification of State
reporting on certain measures to identify potential differences in
access, quality, and outcomes based on demographic factors like race,
ethnicity, age, rural/urban status, disability, language, sex, sexual
orientation, and gender identity, as well as social determinants of
health (SDOH).
The ``Medicaid Program and CHIP; Mandatory Medicaid and Children's
Health Insurance Program (CHIP) Core Set Reporting'' final rule
(hereinafter referred to as the ``Mandatory Medicaid and CHIP Core Set
Reporting final rule'') was published in the August 31, 2023 Federal
Register (88 FR 60278). In that rule, we finalized that the Secretary
would specify, through annual subregulatory guidance, which measures in
the Medicaid and CHIP Child Core Set, the behavioral health measures of
the Medicaid Adult Core Set, and the Health Home Core Sets, States will
be required to stratify, and by which factors, such as race, ethnicity,
sex, age, rural/urban status, disability, language or other factors
specified by the Secretary. CMS also finalized a phased-in timeline for
stratification of measures in these Core Sets. In the Medicaid Program;
Ensuring Access to Medicaid Services final rule, published elsewhere in
the Federal Register, we also finalized a similar phased-in timeline
and process for mandatory reporting and stratification of the home and
community-based services (HCBS) Quality Measure Set.
Measuring health disparities, reporting these results, and driving
improvements in quality are cornerstones of our approach to advancing
health equity and aligning with the CMS Strategic Priorities.\20\ In
this final rule, we establish our intent to align with the
stratification factors required for Core Set measure reporting, which
we believe will minimize State and managed care plan burden to report
stratified measures. To further reduce burden on States, we will permit
States to report using the same measurement and stratification
methodologies and classifications as those in the Mandatory Medicaid
and CHIP Core Set Reporting final rule and the Ensuring Access to
Medicaid Services final rule. We believe these measures and
methodologies are appropriate to include in States' Managed Care
Program Annual Report (MCPAR) because Sec. 438.66(e)(2) requires
information on and an assessment of the operation of each managed care
program, including an evaluation of managed care plan performance on
quality measures. Reporting these measures in the MCPAR would minimize
State and provider burden while allowing more robust CMS monitoring and
oversight of the quality of the health care provided at a managed care
plan and program level. We anticipate publishing additional
subregulatory guidance and adding specific fields in MCPAR to
accommodate this measure and data stratification reporting to simplify
the process for States.
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\20\ CMS Strategic Plan 2022, <a href="https://www.cms.gov/cms-strategic-plan">https://www.cms.gov/cms-strategic-plan</a>.
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Finally, we are clarifying and emphasizing our intent that if any
provision of this final rule is held to be invalid or unenforceable by
its terms, or as applied to any person or circumstance, or stayed
pending further agency action, it shall be severable from this final
rule and not affect the remainder thereof or the application of the
provision to other persons not similarly situated or to other,
dissimilar circumstances. Through this rule, we adopt provisions that
are intended to and will operate independently of each other, even if
each serves the same general purpose or policy goal. Where a provision
is necessarily dependent on another, the context generally makes that
clear (such as by a cross-reference to apply the same standards or
requirements).
B. Summary of the Provisions of the Proposed Rule and Analysis of and
Responses to Public Comments
For convenience, throughout this document, the term ``PAHP'' is
used to mean a prepaid ambulatory health plan that does not exclusively
provide non-emergency medical transportation services, which is a
subset of what is ordinarily included under the term PAHP. Whenever
this document is referencing a PAHP that exclusively provides non-
emergency medical transportation services, it is specifically
identified as a ``Non-Emergency Medical Transportation (NEMT) PAHP.''
Throughout this document, the use of the term ``managed care plan''
includes managed care organizations (MCOs), prepaid inpatient health
plans (PIHPs), and prepaid ambulatory health plans (PAHPs) (as defined
above) and is used only when the provision under discussion applies to
all three arrangements. An explicit reference is used in the preamble
if the provision applies to primary care case managers (PCCMs) or PCCM
entities.
For CHIP, the preamble uses ``CHIP'' when referring collectively to
separate child health programs and title XXI Medicaid expansion
programs. We use ``separate CHIP'' specifically in reference to
separate child health programs and also in reference to any proposed
changes in subpart L of part 457, which are only applicable to separate
child health programs operating in a managed care delivery system. In
this final rule, all proposed changes to Medicaid managed care
regulations are equally applicable to title XXI Medicaid expansion
managed care programs as described at Sec. 457.1200(c).
We received a total of 415 timely comments from State Medicaid and
CHIP agencies, advocacy groups, health care providers and associations,
health insurers, managed care plans, health care associations, and the
general public. The following sections, arranged by subject area,
include a summary of the comments we received and our responses to
those comments. In response to the May 3, 2023 proposed rule, some
commenters chose to raise issues that were beyond the scope of our
proposals. In this final rule, we are not summarizing or responding to
those comments.
[[Page 41008]]
1. Access (42 CFR 438.2, 438.10, 438.66, 438.68, 438.206, 438.207,
438.214, 438.602, 457.1207, 457.1218, 457.1230, 457.1250, and 457.1285)
a. Enrollee Experience Surveys (Sec. Sec. 438.66(b), 438.66(c),
457.1230(b) and 457.1207)
In the 2016 final rule, we renamed and expanded Sec. 438.66 State
Monitoring Requirements to ensure that States had robust systems to
monitor their managed care programs, utilize the monitoring results to
make program improvements, and report to CMS annually the results of
their monitoring activities. Existing regulations at Sec. 438.66(c)(5)
require States to use the data collected from their monitoring
activities to improve the performance of their managed care programs,
including results from any enrollee or provider satisfaction surveys
conducted by the State or managed care plan. Some States currently use
surveys to gather direct input from their managed care enrollees, which
we believe is a valuable source of information on enrollees' actual and
perceived access to services. As a general matter, disparities in
access to care related to demographic factors such as race, ethnicity,
language, or disability status are, in part, a function of the
availability of the accessible providers who are willing to provide
care and are competent in meeting the needs of populations in medically
underserved communities. Surveys can focus on matters that are
important to enrollees and for which they are the best and, sometimes,
only source of information. Patient experience surveys can also focus
on how patients experienced or perceived key aspects of their care, not
just on how satisfied they were with their care. For example,
experience surveys can focus on asking patients whether or how often
they accessed health care, barriers they encountered in accessing
health care, and their experience including communication with their
doctors, understanding their medication instructions, and the
coordination of their health care needs. Some States already use
enrollee experience surveys and report that the data are an asset in
their efforts to assess whether the managed care program is meeting its
enrollees' needs.
One of the most commonly used enrollee experience survey in the
health care industry, including for Medicare Advantage (MA)
organizations, is the Consumer Assessment of Healthcare Providers and
Systems (CAHPS[supreg]).\21\ CAHPS experience surveys are available for
health plans, dental plans, and HCBS programs, as well as for patient
experience with providers such as home health, condition specific care
such as behavioral health, or facility-based care such as in a
hospital. Surveys specially designed to measure the impact of LTSS on
the quality of life and outcomes of enrollees are the National Core
Indicators-Aging and Disabilities (NCI-AD[supreg]) Adult Consumer
Survey<SUP>TM</SUP> \22\ and the National Core Indicators[supreg]--
Intellectual and Developmental Disabilities (NCI-I/DD). Whichever
survey is chosen by a State, it should complement data gathered from
other network adequacy and access monitoring activities to provide the
State with a more complete assessment of their managed care programs'
success at meeting their enrollees' needs. To ensure that States'
managed care program monitoring systems, required at Sec. 438.66(a),
appropriately capture the enrollee experience, we proposed to revise
Sec. 438.66(b)(4) to explicitly include ``enrollee experience'' as
something that must be addressed under a State's managed care
monitoring system. Section 438.66(c)(5) currently requires States to
use the results from any enrollee or provider satisfaction surveys they
choose to conduct to improve the performance of its managed care
program. To ensure that States have the data from an enrollee
experience survey to include in their monitoring activities and improve
the performance of their managed care programs, we proposed to revise
Sec. 438.66(c)(5) to require that States conduct an annual enrollee
experience survey. To reflect this, we proposed to revise Sec.
438.66(c)(5) to add ``an annual'' before ``enrollee'' and add
``experience survey conducted by the State'' after ``enrollee.'' We
also proposed to replace ``or'' with ``and'' to be explicit that use of
provider survey results alone would not be sufficient to comply with
Sec. 438.66(c)(5). While we encourage States and managed care plans to
utilize provider surveys, we did not propose to mandate them at this
time. We believe other proposals in the proposed rule, such as enrollee
surveys and secret shopper surveys, may yield information that will
inform our decision on the use of provider surveys in the future. We
invited comment on whether we should mandate the use of a specific
enrollee experience survey, define characteristics of acceptable survey
instruments, and the operational considerations of enrollee experience
surveys States use currently.
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\21\ The acronym ``CAHPS'' is a registered trademark of the
Agency for Healthcare Research and Quality.
\22\ NCI-AD Adult Consumer Survey<SUP>TM</SUP> is a copyrighted
tool.
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To reflect these proposals in MCPAR requirements at Sec.
438.66(e), we proposed conforming edits in Sec. 438.66(e)(2)(vii). We
proposed to include the results of an enrollee experience survey to the
list of items that States must evaluate in their report and add
``provider'' before ``surveys'' to distinguish them from enrollee
experience surveys. Additionally, consistent with the transparency
proposals described in section I.B.1.g. of this final rule, we proposed
to revise Sec. 438.66(e)(3)(i) to require that States post the report
required in Sec. 438.66(e)(1) on their website within 30 calendar days
of submitting it to CMS. Currently Sec. 438.66(e)(3)(i) only requires
that the report be posted on the State's website but does not specify a
timeframe; we believe that adding further specificity about the timing
of when the report should be posted will be helpful to interested
parties and bring consistency to this existing requirement. This
proposal is authorized by section 1902(a)(6) of the Act, which requires
that States provide reports, in such form and containing such
information, as the Secretary may from time to time require.
For an enrollee experience survey to yield robust, usable results,
it should be easy to understand, simple to complete, and readily
accessible for all enrollees that receive it; therefore, we believe
they should meet the interpretation, translation, and tagline criteria
in Sec. 438.10(d)(2). Therefore, we proposed to add enrollee
experience surveys as a document subject to the requirements in Sec.
438.10(d)(2). This will ensure that enrollees that receive a State's
enrollee experience survey will be fully notified that oral
interpretation in any language and written translation in the State's
prevalent languages will be readily available, and how to request
auxiliary aids and services, if needed.
These proposals are authorized by section 1932(b)(5) of the Act
which requires each managed care organization to demonstrate adequate
capacity and services by providing assurances to the State and CMS that
they have the capacity to serve the expected enrollment in their
service area, including assurances that they offer an appropriate range
of services and access to preventive and primary care services for the
population expected to be enrolled in such service area, and maintain a
sufficient number, mix, and geographic distribution of providers of
services. The authority for our proposals is extended to prepaid
inpatient health plans (PIHPs) and prepaid ambulatory health plans
(PAHPs) through
[[Page 41009]]
regulations based on our authority under section 1902(a)(4) of the Act.
Because enrollee experience survey results will provide direct and
candid input from enrollees, States and managed care plans could use
the results to determine if their networks offer an appropriate range
of services and access as well as if they provide a sufficient number,
mix, and geographic distribution of providers to meet their enrollees'
needs. Enrollee experience survey data will enable managed care plans
to assess whether their networks are providing sufficient capacity as
experienced by their enrollees and that assessment will inform the
assurances that the plan is required to provide to the State and CMS.
These proposals are also authorized by section 1932(c)(1)(A)(i) and
(iii) of the Act which require States that contract with MCOs to
develop and implement a quality assessment and improvement strategy
that includes: standards for access to care so that covered services
are available within reasonable timeframes and in a manner that ensures
continuity of care and adequate primary care and specialized services
capacity and procedures for monitoring and evaluating the quality and
appropriateness of care and services to enrollees and requirements for
provision of quality assurance data to the State. Data from enrollee
experience surveys will enable States to use the results to evaluate
whether their plans' networks are providing access to covered services
within reasonable timeframes and in a manner that ensures continuity of
care. These data will also inform the development and maintenance of
States' quality assessment and improvement strategies and will be
critical to States' monitoring and evaluation of the quality and
appropriateness of care and services provided to enrollees.
We remind States that in addition to the mandatory external quality
review (EQR) activities under Sec. 438.358(b), there is an existing
optional EQR activity under Sec. 438.358(c)(2) for the administration
or validation of consumer or provider surveys of quality of care.
States that contract with MCOs and use external quality review
organizations (EQROs) to administer or validate the proposed enrollee
experience surveys may be eligible to receive up to a 75 percent
enhanced Federal match, pursuant to Sec. 438.370, to reduce the
financial burden of conducting or validating the proposed enrollee
survey(s).
We requested comment on the cost and feasibility of implementing
enrollee experience surveys for each managed care program as well as
the extent to which States already use enrollee experience surveys for
their managed care programs.
We proposed that States would have to comply with Sec. 438.66(b)
and (c) no later than the first managed care plan rating period that
begins on or after 3 years after the effective date of the final rule
as we believe this is a reasonable timeframe for compliance. We
proposed this applicability date in Sec. 438.66(f).
Since we did not adopt MCPAR for separate CHIPs, we do not plan to
adopt the new Medicaid enrollee experience survey requirements proposed
at Sec. 438.66(b) and (c) for separate CHIPs. However, States
currently collect enrollee experience data for CHIP through annual
CAHPS surveys as required at section 2108(e)(4) of the Act. Currently,
there are no requirements for States to use these data to evaluate
their separate CHIP managed care plans network adequacy or to make
these survey results available to beneficiaries to assist in selecting
a managed care plan. We believed that enrollee experience data can
provide an invaluable window into the performance of managed care plans
and assist States in their annual review and certification of network
adequacy for separate CHIP MCOs, PIHPs, and PAHPs. For this reason, we
proposed to amend Sec. 457.1230(b) to require States to evaluate
annual CAHPS survey results as part of the State's annual analysis of
network adequacy as described in Sec. 438.207(d). Since States already
collect CAHPS survey data for CHIP and will likely not need the same
timeframe to implement as needed for implementing the proposed Medicaid
enrollee experience surveys requirement, we proposed for the provision
at Sec. 457.1230(b) to be applicable 60 days after the effective date
of the final rule. However, we are open to a later applicability date
such as 1, 2, or 3 years after the effective date of the final rule. We
invited comment on the appropriate applicability date for this
provision.
We also believe that access to enrollee experience data is critical
in affording separate CHIP beneficiaries the opportunity to make
informed decisions when selecting their managed care plan(s). To this
end, we proposed at Sec. 457.1207 to require States to post
comparative summary results of CAHPS surveys by managed care plan
annually on State websites as described at Sec. 438.10(c)(3). The
posted summary results must be updated annually and allow for easy
comparison between the managed care plans available to separate CHIP
beneficiaries. We sought public comment on other approaches to
including CHIP CAHPS survey data for the dual purposes of improving
access to managed care services and enabling beneficiaries to have
useful information when selecting a managed care plan.
We summarize and respond to public comments received on Enrollee
experience surveys (Sec. Sec. 438.66(b) and (c), and 457.1230(b))
below.
Comment: We received many supportive comments on our proposal for
States to conduct an annual enrollee experience survey. Commenters
agreed that enrollees are often the best source of information about
their care and best able to provide insights about how to improve the
quality of the care they receive. Many commenters were particularly
supportive of requiring written survey materials to comply with the
interpretation, translation, and tagline criteria in Sec. 438.10(d)(2)
so that surveys are fully accessible and easy to read and understand.
Many commenters also supported reporting the results in the MCPAR and
requiring States to post them on their website within 30 days of
submission.
Response: We appreciate the comments in support of our proposal for
annual enrollee surveys and the applicability of Sec. 438.10(d)(2) to
facilitate participation by enrollees that require reasonable
accommodations and interpretation or translation. We believe this will
be critical to helping enrollees respond to the surveys and produce
more robust and actionable results. We also appreciate the confirmation
that including the survey results in the MCPAR and posting them on the
State's website timely is the best option to make the results
consistently presented and available.
Comment: A few commenters encouraged CMS to require States to
include a representative sample of enrollees who are dually eligible
for Medicaid and Medicare, in marginalized populations, or had chronic
conditions in the experience surveys and require that results be
disaggregated by population and other key demographics. Several
commenters recommended that we ensure that surveys are not too long,
the questions are not too complex, and that the survey is distributed
and available in multiple ways (mailing, phone, or email).
Response: We thank commenters for these thoughtful suggestions and
encourage States to utilize them to improve the comprehensiveness and
utility of the survey results. We may consider some of these
suggestions in future rulemaking.
Comment: Some commenters stated that the proposed annual enrollee
[[Page 41010]]
experience survey would be duplicative of other surveys currently done
by States and would contribute to enrollee survey fatigue. Commenters
offered several suggestions, including not requiring an annual survey
and letting States choose the cadence, as well as aligning Medicare and
Medicaid surveys particularly for aligned plans. One commenter
suggested that States be permitted to use surveys administered by their
managed care plans while another recommended that States use
independent survey vendors.
Response: We understand commenters' concerns about survey fatigue
for enrollees and the downward impact that could have on response
rates. After considering the comments, we are finalizing Sec.
438.66(c)(5) with an exemption for Medicaid managed care plans in which
all enrollees are enrolled in a Medicare Advantage (MA) dual eligible
special needs plan (D-SNP) subject to the condition in Sec.
422.107(e)(1)(i). In such circumstances, we already require annual
CAHPS surveys for enrollees in D-SNPs, and all enrollees sampled for
the CAHPS survey would be dually eligible individuals within the same
State. Where States choose not to conduct an experience survey based on
this exemption, the requirement still applies at Sec. 438.66(c) that
States use data to improve the performance of their Medicaid managed
care programs, but when all enrollees are enrolled in a D-SNP subject
to the condition in Sec. 422.107(e)(1)(i), the data on enrollee
experiences would come from the D-SNP's CAHPS results. States can
require through the State Medicaid agency contract at Sec. 422.107
that D-SNPs share CAHPS results with the State.
Allowing States to utilize existing annual experience surveys will
reduce the risk of survey fatigue and enable the collection of annual
experience surveys without placing an unreasonable demand on enrollees.
Comment: Some commenters encouraged CMS to also require States to
survey providers as part of their annual surveying process to provide
accurate information on root-cause analyses for issues with access.
Commenters suggested the creation and administration of a family
caregiver experience survey, the inclusion of questions directly
related to mental health access or preferences for in-person services
vs. telehealth services, and population specific surveys. A commenter
recommended that CMS specify that the survey instrument must assess MCO
performance for customer service, provider access, availability of
benefits, any out-of-pocket cost burden, and the availability of
language services and disability accommodations.
Response: We thank commenters for these suggestions and encourage
States to consider including these in their monitoring and oversight
strategy. Provider surveys, while not required at this time, can be a
rich source of information on managed care plan performance on topics
that enrollees cannot provide. We encourage States to use robust
provider surveys as a complement to enrollee surveys to capture a
comprehensive view of the operations of their managed care programs. We
believe the additional topic areas or surveys suggested by commenters
would enable States to collect new types of information to better
inform their monitoring and oversight activities.
Comment: Some commenters recommended that CMS mandate a specific
survey instrument such as CAHPS[supreg] while some other commenters
stated that CMS should not specify a survey instrument and give States
the flexibility to use surveys that capture the topic areas most
relevant to their programs. Others recommended requiring CAHPS to
reduce burden and improve comparability, although some commenters noted
increasing concerns with low response rates to CAHPS surveys. Some
commenters noted that many States have been doing experience surveys
for years and have refined their questions over time to gather the most
valuable and needed data. A few commenters suggested that, at a
minimum, CMS should define characteristics of an acceptable survey or
develop evidence-based questions that States can use in their surveys.
A few commenters stated that given the prevalent and successful
adoption of National Core Indicators[supreg]--Intellectual and
Developmental Disabilities (NCI-I/DD) and National Core Indicators--
Aging and Disabilities (NCI-AD<SUP>TM</SUP>), CMS should align
expectations for the experience of care surveys for managed care with
the approved HCBS measure set, including NCI. One commenter requested
that CMS provide technical guidance on the sample methodology, targets
for the consumer satisfaction index, and the baseline template for an
enrollee experience survey.
Response: While we understand the concern about comparability among
States, we believe that States capturing information that is specific
to their programs and populations is critical for these surveys to
inform the development and execution of effective monitoring and
oversight activities. We expect that enrollee survey responses that are
detailed and specific will be more likely to be utilized by States to
make program improvements as required in Sec. 438.66(c). Standardized
surveys such as CAHPS, NCI-I/DD, and NCI-AD may be sufficient for
monitoring, oversight, and quality improvement activities of some
programs, but not others, such as those with a narrow set of
populations or benefits. As such, we believe we should allow States to
select the enrollee experience survey that will best aid in their
monitoring, oversight, and quality improvement activities. At this
time, we do not believe we should define minimum survey characteristics
or satisfaction index, develop evidence-based questions, or provide a
template. Rather, we will monitor implementation of this requirement
and may propose to revise Sec. 438.66 to include this type of detail
in future rulemaking. Furthermore, the MAC QRS as specified in Sec.
438.510, is requiring the full CAHPS Health Plan survey (both Adult and
Child Surveys) in the initial mandatory measure set for the plans
included in the MAC QRS. (See section I.B.6.e.) The CAHPS survey in the
MAC QRS is a standardized instrument through which beneficiaries
provide information about their experience with their managed care
plan. The MAC QRS itself will, once it is implemented by all States
that contract with an applicable managed care plan, provide
standardized information and quality performance data to support users
in comparing enrollee experience data for Medicaid (and/or CHIP)
managed care plans available within a State and in making comparisons
among plans with similar benefits across States.
Comment: One commenter recommended that States be required to
collect enrollees' preferred languages during the Medicaid enrollment
process and share it with plans so that enrollee surveys may be
administered in the relevant language.
Response: We acknowledge that collecting preferred languages is
ideally done at the time of eligibility determination or enrollment.
However, applicants are not legally required to provide that
information. As such, States and managed care plans should attempt to
collect the information whenever they are in contact with an enrollee
and store the information in their system so that any information
provided to enrollees, including experience surveys, is in their
preferred language.
Comment: One commenter requested that States with small percentages
of enrollees in managed care be exempted from conducting an enrollee
experience survey.
[[Page 41011]]
Response: We do not agree that States with small managed care
programs should be exempted from conducting an enrollee experience
survey. Regardless of the number of enrollees in a program, their
direct input is valuable to States and managed care plans to ensure
that they are meeting the needs of their covered populations.
Comment: One commenter suggested that States share information
gathered from enrollee experience surveys with managed care plans to
support continuous improvement in enrollee experiences across all
plans.
Response: We agree and, although summary results will be provided
by States in their annual MCPARs (which are published on their websites
as required in 42 CFR 438.66(e)(3)(i)), we encourage States to share
the detailed response data with their plans as soon as they are
available. Improving managed care programs and enrollees' experience is
a shared responsibility between CMS, the State, and its managed care
plans and that is best fulfilled through collaboration and shared
goals.
Comment: One commenter suggested that States be permitted to use
surveys administered by their managed care plans while another
recommended that States use independent survey vendors.
Response: States may elect to use an independent survey vendor;
however, we decline to finalize that requirement in this rule to avoid
additional burden on States. We will evaluate the results of the
enrollee experience surveys and may use that information to inform
future policy. We are finalizing Sec. 438.66(c)(5) as a State
obligation to facilitate consistency in administration within managed
care programs. However, we will evaluate survey results and may revisit
this policy in future rulemaking.
Comment: One commenter recommended that enhanced FFP be made
available to cover the cost of administering the secret shopper
surveys.
Response: We do not have the authority to provide enhanced FFP as
the level of FFP available for Medicaid expenditures is specified in
statute.
Comment: One commenter supported requiring States to include their
most recent CHIP CAHPS survey results in their annual analysis of
network adequacy and to post comparative summary results of CAHPS
surveys by managed care plan annually on State websites to be
applicable 60 days after the effective date of the final rule.
Response: We appreciate the support for our applicability date
proposal.
Comment: Many commenters recommended that CMS delay the
requirements to post CHIP CAHPS survey results and evaluate network
adequacy requirements as described in Sec. Sec. 457.1207 and
457.1230(b), respectively. The commenters stated concerns about State
administrative burden (that is, staff training) and the additional time
needed for States to disaggregate Medicaid and CHIP data. Commenters
recommended a range of implementation timelines, from 1 to 2 years
following the effective date of the final rule. Another commenter noted
that they do not believe they will be able to meet the proposed
deadline for posting CHIP CAHPS survey results without technical
assistance from CMS.
Response: We appreciate the commenters' suggestion to extend the
implementation deadline for these provisions and recognize the
administrative burden these proposals may put on States. After
consideration of the public comments we received, we are finalizing an
implementation date of 2 years after the effective date of the final
rule for the proposals at Sec. Sec. 457.1230(b) and 457.1207. We
believe extending the implementation date to 2 years following the
effective date of the final rule will provide States with adequate time
to conduct the network adequacy analysis. As always, we are available
to provide technical assistance if needed.
Comment: Many commenters supported our proposal to post CHIP CAHPS
survey data. Specifically, one commenter noted MCOs serving Medicaid
populations already participate in the CHIP CAHPS survey to capture
feedback from enrollees. The commenter noted that they believe that
leveraging the CAHPS survey would improve comparability across plans
while minimizing the administrative burden on plans to implement a new
survey.
Response: We appreciate the robust number of comments in support of
our proposal to require posting of comparative CHIP enrollee survey
experience information by MCO. We agree that capturing information that
is specific to each State's programs and populations is critical to
inform the development and execution of effective monitoring and
oversight activities.
Comment: One commenter had concerns about the administrative burden
of collecting and reporting CHIP enrollee information in CHIP CAHPS
surveys because low enrollment may make it challenging for States to
collect statistically representative data at the subgroup level. The
commenter recommended that States sample a sufficient number of
beneficiaries to ensure survey results are representative while
weighing considerations related to cost-effectiveness.
Response: We understand the commenter's concern and acknowledge the
administrative burden of collecting and reporting this information. We
note that our minimum enrollment threshold policy at 438.515(a)(1)(i)
for Medicaid, incorporated into separate CHIP regulations through a
cross-reference at Sec. 457.1240(d), requires States to collect data
from contracted managed care plans that have 500 or more enrollees. We
will provide guidance on when quality ratings should be suppressed due
to lower enrollment in the technical resource manual. We believe CHIP
CAHPS surveys are an important tool that States, and managed care plans
can use to ensure they are meeting the needs of their covered
populations regardless of program size.
After consideration of the public comments we received, we are
finalizing Sec. Sec. 438.66(b), and (f), and 457.1230(b) as proposed,
except that we are finalizing an implementation date of 2 years after
the effective date of the final rule for the proposals at Sec. Sec.
457.1230(b) and 457.1207. We are also finalizing Sec. 438.66(c)(5) to
permit States to use a CAHPS survey as required for Medicare Advantage
D-SNPs.
b. Appointment Wait Time Standards (Sec. Sec. 438.68(e) and 457.1218)
In the 2020 final rule, we revised Sec. 438.68(b)(1) and (2) by
replacing the requirement for States to set time and distance standards
with a more flexible requirement that States set a quantitative network
adequacy standard for specified provider types. We noted that
quantitative network adequacy standards that States may elect to use
included minimum provider-to-enrollee ratios; maximum travel time or
distance to providers; a minimum percentage of contracted providers
that are accepting new patients; maximum wait times for an appointment;
hours of operation requirements (for example, extended evening or
weekend hours); and combinations of these quantitative measures. We
encouraged States to use the quantitative standards in combination--not
separately--to ensure that there are not gaps in access to, and
availability of, services for enrollees. (85 FR 72802)
Ensuring that it provides timely access to high-quality services in
a manner that is equitable and consistent is central to an effective
Medicaid and CHIP program. States and managed care plans have sometimes
been challenged
[[Page 41012]]
to ensure that networks can provide all covered services in a timely
manner.\23\ During the PHE, managed care plans faced many new
challenges ensuring access to covered services and those challenges
shed light on opportunities for improvement in monitoring timely
access. These challenges include workforce shortages, changes in
providers' workflows and operating practices, providers relocating
leaving shortages in certain areas, and shifts in enrollee utilization
such as delaying or forgoing preventive care. Some of these challenges
have changed the delivery of health care services, requiring States and
managed care plans to adjust their monitoring, evaluation, and planning
strategies to ensure equitable access to all covered services.
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\23\ <a href="https://oig.hhs.gov/oei/reports/oei-02-11-00320.pdf">https://oig.hhs.gov/oei/reports/oei-02-11-00320.pdf</a>;
<a href="https://oig.hhs.gov/oei/reports/oei-02-13-00670.pdf">https://oig.hhs.gov/oei/reports/oei-02-13-00670.pdf</a>.
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On February 17, 2022, we issued a request for information \24\
(RFI) soliciting public input on improving access in Medicaid and CHIP,
including ways to promote equitable and timely access to providers and
services. Barriers to accessing care represented a significant portion
of comments received, with common themes related to providers not
accepting Medicaid and recommendations calling for us to set specific
quantitative access standards. Many commenters urged us to consider
developing a Federal standard for timely access to providers and
services but giving State Medicaid and CHIP agencies the flexibility to
impose more stringent requirements. A recently published study \25\
examined the extent to which Medicaid managed care plan networks may
overstate the availability of physicians in Medicaid and evaluated the
implications of discrepancies in the ``listed'' and ``true'' networks
for beneficiary access. The authors concluded that findings suggest
that current network adequacy standards might not reflect actual access
and that new methods are needed that account for physicians'
willingness to serve Medicaid patients. Another review of 34 audit
studies demonstrated that Medicaid is associated with a 1.6-fold lower
likelihood in successfully scheduling a primary care appointment and a
3.3-fold lower likelihood in successfully scheduling a specialty
appointment when compared with private insurance.\26\
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\24\ CMS Request for Information: Access to Coverage and Care in
Medicaid & CHIP. February 2022. For a full list of question from the
RFI, see <a href="https://www.medicaid.gov/medicaid/access-care/downloads/access-rfi-2022-questions.pdf">https://www.medicaid.gov/medicaid/access-care/downloads/access-rfi-2022-questions.pdf</a>.
\25\ <a href="https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2021.01747">https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2021.01747</a>.
\26\ W. Hsiang, A. Lukasiewicz, and M. Gentry, ``Medicaid
Patients Have Greater Difficulty Scheduling Health Care Appointments
Compared With Private Insurance Patients: A Meta-Analysis,'' SAGE
Journals, April 5, 2019, available at <a href="https://journals.sagepub.com/doi/full/10.1177/0046958019838118">https://journals.sagepub.com/doi/full/10.1177/0046958019838118</a>.
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Based on the RFI comments received, research, engagement with
interested parties, and our experience in monitoring State managed care
programs, we are persuaded about the need for increased oversight of
network adequacy and overall access to care and proposed a new
quantitative network adequacy standard. Specifically, we proposed to
redesignate existing Sec. 438.68(e) regarding publication of network
adequacy standards to Sec. 438.68(g) and create a new Sec. 438.68(e)
titled ``Appointment wait time standards.''
At Sec. 438.68(e)(1)(i) through (iv), we proposed that States
develop and enforce wait time standards for routine appointments for
four types of services: outpatient mental health and substance use
disorder (SUD)--adult and pediatric, primary care--adult and pediatric,
obstetrics and gynecology (OB/GYN), and an additional type of service
determined by the State (in addition to the three listed) in an
evidence-based manner for Medicaid. We included ``If covered in the
MCO's, PIHP's, or PAHP's contract'' before the first three service
types (paragraphs (e)(1)(i) through (iii)) to be clear that standards
only need to be developed and enforced if the service is covered by the
managed care plan's contract, but the fourth service (paragraph
(e)(1)(iv)) must be one that is covered by the plan's contract. For
example, we understand that primary care and OB/GYN services are likely
not covered by a behavioral health PIHP; therefore, a State will not be
required to set appointment wait time standards for primary care and
OB/GYN providers for the behavioral health PIHP and will only have to
set appointment wait time standards for mental health and SUD
providers, as well as one State-selected provider type. To ensure that
our proposal to have States set appointment wait time standards for
mental health and SUD, as well as one State-selected provider type for
behavioral PIHPs and PAHPs is feasible, we requested comment on whether
behavioral health PIHPs and PAHPs include provider types other than
mental health and SUD in their networks. Although we believe behavioral
health PIHPs and PAHPs may include other provider types, we wanted to
validate our understanding. We proposed to adopt the proposed wait time
standards for separate CHIP through an existing cross-reference at
Sec. 457.1218. We proposed primary care, OB/GYN, and mental health and
SUD because they are indicators of core population health; therefore,
we believe requiring States to set appointment wait time standards for
them will have the most impact on access to care for Medicaid and CHIP
managed care enrollees.
At Sec. 438.68(e)(1)(iv), we proposed that States select a
provider type in an evidence-based manner to give States the
opportunity to use an appointment wait time standard to address an
access challenge in their local market. We did not propose to specify
the type of evidence to be used; rather, we defer to States to consider
multiple sources, such as encounter data, appeals and grievances, and
provider complaints, as well as to consult with their managed care
plans to select a provider type. We believe proposing that States
select one of the provider types subject to an appointment wait time
standard will encourage States and managed care plans to analyze
network gaps effectively and then innovate new ways to address the
challenges that impede timely access. States will identify the provider
type(s) they choose in existing reporting in MCPAR, per Sec.
438.66(e), and the Network Adequacy and Access Assurances Report
(NAAAR), per Sec. 438.207(d).
To be clear that the appointment wait time standards proposed in
Sec. 438.68(e) cannot be the quantitative network adequacy standard
required in Sec. 438.68(b)(1), we proposed to add ``. . . , other than
for appointment wait times . . .'' in Sec. 438.68(b)(1). We did not
propose to define routine appointments in this rule; rather, we defer
to States to define it as they deem appropriate. We encouraged States
to work with their managed care plans and their network providers to
develop a definition of ``routine'' that will reflect usual patterns of
care and current clinical standards. We acknowledged that defining
``urgent'' and ``emergent'' for appointment wait time standards could
be much more complex given the standards of practice by specialty and
the patient-specific considerations necessary to determine those
situations. We invited comments on defining these terms should we
undertake additional rulemaking in the future. We clarified that
setting appointment wait time standards for routine appointments as
proposed at Sec. 438.68(e)(1) will be a minimum; States are encouraged
to set additional appointment wait time standards for other types of
[[Page 41013]]
appointments. For example, States may consider setting appointment wait
time standards for emergent or urgent appointments as well.
To provide States with flexibility to develop appointment wait time
standards that reflect the needs of their Medicaid and CHIP managed
care populations and local provider availability while still setting a
level of consistency, we proposed maximum appointment wait times at
Sec. 438.68(e)(1): State developed appointment wait times must be no
longer than 10 business days for routine outpatient mental health and
substance use disorder appointments at Sec. 438.68(e)(1)(i) and no
longer than 15 business days for routine primary care at Sec.
438.68(e)(1)(ii) and OB/GYN appointments at Sec. 438.68(e)(1)(iii). We
did not propose a maximum appointment wait time standard for the State-
selected provider type. These proposed maximum timeframes were informed
by standards for individual health insurance coverage offered through
Federally-Facilitated Marketplaces (FFMs) established under the
Affordable Care Act that will begin in 2025 of 10 business days for
behavioral health and 15 business days for primary care services; we
noted that we elected not to adopt the FFMs' appointment wait time
standard of 30 business days for non-urgent specialist appointments as
we believe focusing on primary care, OB/GYN, and mental health and SUD
is the most appropriate starting place for Medicaid and CHIP managed
care standards. These proposed timeframes were also informed by
engagement with interested parties, including comments in response to
the RFI. We proposed to require appointment wait times for routine
appointments only in this rule as we believe that providers utilize
more complex condition and patient-specific protocols and clinical
standards of care to determine scheduling for urgent and emergent care.
We may address standards for other types of appointments in future
rulemaking and hope that information from the use of appointment wait
time standards for routine appointments will inform future proposals.
In developing this proposal, we considered appointment wait time
standards between 30 calendar days and 45 calendar days. Some
interested parties stated that these standards would be more
appropriate for routine appointments and would more accurately reflect
current appointment availability for most specialties. However, we
believe 30 calendar days and 45 calendar days as the maximum wait time
may be too long as a standard; we understand it may be a realistic
timeframe currently for some specialist appointments, but we were not
convinced that they should be the standard for outpatient mental health
and SUD, primary care, and OB/GYN appointments. We invited comment on
aligning with FFM standards at 10 and 15 business days, or whether wait
time standards should differ, and if so, what standards will be the
most appropriate.
To make the appointment wait time standards as effective as
possible, we deferred to States on whether and how to vary appointment
wait time standards for the same provider type; for example, by adult
versus pediatric, telehealth versus in-person, geography, service type,
or other ways. However, we proposed that wait time standards must, at a
minimum, reflect the timing proposed in Sec. 438.68(e)(1). We
encouraged States to consider the unique access needs of certain
enrollees when setting their appointment wait time standards to
facilitate obtaining meaningful results when assessing managed care
plan compliance with the standards.
As a general principle, we sought to align across Medicaid managed
care, CHIP managed care, the FFMs, and Medicare Advantage (MA) when
reasonable to build consistency for individuals who may change coverage
over time and to enable more effective and standardized comparison and
monitoring across programs. Proposing 90 percent compliance with a 10-
and 15-business day maximum appointment wait time standards will be
consistent with standards set for qualified health plans (QHPs) on the
FFMs for plan year 2025.\27\ However, we note that for MA, CMS expects
MA plans to set reasonable standards for primary care services for
urgently needed services or emergencies immediately; services that are
not emergency or urgently needed, but in need of medical attention
within one week; and routine and preventive care within 30 days.\28\
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\27\ 45 CFR 156.230(a)(2)(i)(B); Draft 2025 Letter to Issuers in
the Federally-facilitated Exchanges, chapter 2, section 3.iii.b,
available at <a href="https://www.cms.gov/files/document/2025-draft-letter-issuers-11-15-2023.pdf">https://www.cms.gov/files/document/2025-draft-letter-issuers-11-15-2023.pdf</a>.
\28\ MCM Chapter 4 (<a href="http://www.cms.gov">www.cms.gov</a>).
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To ensure that managed care plans' contracts reflect their
obligation to comply with the appointment wait time standards, we
proposed to revise Sec. 438.206(c)(1)(i) to include appointment wait
time standards as a required provision in MCO, PIHP, and PAHP contracts
for Medicaid, which is included in separate CHIP regulations through an
existing cross-reference at Sec. 457.1230(a). We believe this was
necessary since our proposal at Sec. 438.68(e)(1) to develop and
enforce appointment wait time standards is a State responsibility; this
revision to Sec. 438.206(c)(1)(i) will specify the corresponding
managed care plan responsibility.
We proposed to revise the existing applicability date in Sec.
438.206(d) for Medicaid, which is applicable for separate CHIPs through
an existing cross-reference at Sec. 457.1230(a) and a proposed cross-
reference at Sec. 457.1200(d), to reflect that States will have to
comply with Sec. 438.206(c)(1)(i) no later than the first managed care
plan rating period that begins on or after 4 years after the effective
date of the final rule. We believe this is a reasonable timeframe for
compliance.
Current requirements at Sec. 438.68(c)(1) and (2) for Medicaid,
and through a cross-reference at Sec. 457.1218 for separate CHIP,
direct States to consider 12 elements when developing their network
adequacy standards. We reminded States that Sec. 438.68(c)(1)(ix)
includes the availability and use of telemedicine, e-visits, and/or
other evolving and innovative technological solutions as an element
that States must consider when developing their network adequacy
standards. Services delivered via telehealth seek to improve a
patient's health through two-way, real time interactive communication
between the patient and the provider. Services delivered in this manner
can, for example, be used for assessment, diagnosis, intervention,
consultation, and supervision across distances. Services can be
delivered via telehealth across all populations served in Medicaid
including, but not limited to children, individuals with disabilities,
and older adults. States have broad flexibility to cover telehealth
through Medicaid and CHIP, including the methods of communication (such
as telephonic or video technology commonly available on smart phones
and other devices) to use.\29\ States need to balance the use of
telehealth with the availability of providers that can provide in-
person care and enrollees' preferences for receiving care to ensure
that they establish network adequacy standards under Sec. 438.68 that
accurately reflect the practical use of both types of care in their
State. Therefore, States should review encounter data to gauge
telehealth use by enrollees over time and the availability of
telehealth appointments by providers and account for that information
when developing
[[Page 41014]]
their appointment wait time standards. We also reminded States that
they have broad flexibility for covering services provided via
telehealth and may wish to include quantitative network adequacy
standards or specific appointment wait time standards for telehealth in
addition to in-person appointment standards, as appropriate based on
current practices and the extent to which network providers offer
telehealth services. Although States have broad flexibility in this
area, we reminded States of their responsibility under section 504 of
the Rehabilitation Act and section 1557 of the Affordable Care Act to
ensure effective communications for patients with disabilities for any
telehealth services that are offered and to provide auxiliary aids and
services at no cost to the individual to ensure that individuals with
disabilities are able to access and utilize services provided via
telehealth; we also reminded States of their responsibilities under
Title VI of the Civil Rights Act of 1964, including the obligation to
take reasonable steps to ensure meaningful language access for persons
with limited English proficiency when providing telehealth
services.\30\
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\29\ <a href="https://www.medicaid.gov/medicaid/benefits/downloads/medicaid-chip-telehealth-toolkit.pdf">https://www.medicaid.gov/medicaid/benefits/downloads/medicaid-chip-telehealth-toolkit.pdf</a>.
\30\ U.S. Department of Justice, Civil Rights Division and
Department of Health and Human Services, Office for Civil Rights,
``Guidance on Nondiscrimination in Telehealth: Federal Protections
to Ensure Accessibility to People with Disabilities and Limited
English Proficient Persons,'' July 29, 2022, available online at
<a href="https://www.hhs.gov/civil-rights/for-individuals/disability/guidance-on-nondiscrimination-in-telehealth/index.html">https://www.hhs.gov/civil-rights/for-individuals/disability/guidance-on-nondiscrimination-in-telehealth/index.html</a>.
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Current Medicaid regulations at Sec. 438.68(e), and through a
cross-reference at Sec. 457.1218 for separate CHIP, require States to
publish the network adequacy standards required by Sec. 438.68(b)(1)
and (2) on their websites and to make the standards available upon
request at no cost to enrollees with disabilities in alternate formats
or through the provision of auxiliary aids and services. To ensure
transparency and inclusion of the new proposed appointment wait time
standards in this provision, we proposed several revisions: to
redesignate Sec. 438.68(e) to Sec. 438.68(g); to replace ``and'' with
a comma after ``(b)(1);'' add ``(b)'' before ``(2)'' for clarity; and
add a reference to (e) after ``(b)(2).'' We believe these changes make
the sentence clearer and easier to read. Lastly, Sec. 438.68(e)
currently includes ``. . . the website required by Sec. 438.10.'' For
additional clarity in redesignated Sec. 438.68(g), we proposed to
replace ``438.10'' with ``Sec. 438.10(c)(3)'' to help readers more
easily locate the requirements for State websites. These proposed
changes apply equally to separate CHIP managed care through existing
cross-references at Sec. Sec. 457.1218 and 457.1207.
At Sec. 438.68(e)(2), which is included in separate CHIP
regulations through an existing cross-reference at Sec. 457.1218, we
proposed that managed care plans will be deemed compliant with the
standards established in paragraph (e)(1) when secret shopper results,
described in section I.B.1.c. of this final rule, reflect a rate of
appointment availability that meets State established standards at
least 90 percent of the time. By proposing a minimum compliance rate
for appointment wait time standards, we will provide States with
leverage to hold their managed care plans accountable for ensuring that
their network providers offer timely appointments. Further, ensuring
timely appointment access 90 percent of the time will be an important
step toward helping States ensure that the needs of their Medicaid and
CHIP populations are being met timely. As with any provision of part
438 and subpart L of part 457, we may require States to take corrective
action to address noncompliance.
To ensure that appointment wait time standards will be an effective
measure of network adequacy, we believe we needed some flexibility to
add provider types to address new access or capacity issues at the
national level. Therefore, at Sec. 438.68(e)(3), which is included in
separate CHIP regulations through an existing cross-reference at Sec.
457.1218, we proposed that CMS may select additional types of
appointments to be added to Sec. 438.68(e)(1) after consulting with
States and other interested parties and providing public notice and
opportunity to comment. From our experience with the COVID-19 PHE, as
well as multiple natural disasters in recent years, we believe it
prudent to explicitly state that we may utilize this flexibility as we
deem appropriate in the future.
We recognized that situations may arise when an MCO, PIHP, or PAHP
may need an exception to the State established provider network
standards, including appointment wait times. Prior to this final rule,
Sec. 438.68(d) provided that, to the extent a State permitted an
exception to any of the provider-specific network standards, the
standard by which an exception will be evaluated and approved must be
specified in the MCO, PIHP, or PAHP contract and must be based, at a
minimum, on the number of providers in that specialty practicing in the
MCO's, PIHP's, or PAHP's service area. We proposed to make minor
grammatical revisions to Sec. 438.68(d)(1) by deleting ``be'' before
the colon and inserting ``be'' as the first word of Sec.
438.68(d)(1)(i) and (ii), which is included in separate CHIP
regulations through an existing cross-reference at Sec. 457.1218. We
also proposed to add a new standard at Sec. 438.68(d)(1)(iii) for
Medicaid, and through an existing cross-reference at Sec. 457.1218 for
separate CHIP, for reviews of exception requests, which will require
States to consider the payment rates offered by the MCO, PIHP, or PAHP
to providers included in the provider group subject to the exception.
Managed care plans sometimes have difficulty building networks that
meet network adequacy standards due to low payment rates. We believe
that States should consider whether this component is a contributing
factor to a plan's inability to meet the standards required by Sec.
438.68(b)(1) and (2) and (e), when determining whether a managed care
plan should be granted an exception. We reminded States of their
obligation at Sec. 438.68(d)(2) to monitor enrollee access on an
ongoing basis to the provider types in managed care networks that
operate under an exception and report their findings as part of the
annual Medicaid MCPAR required at Sec. 438.66(e).
Our proposal for States to develop and enforce appointment wait
time standards proposed at Sec. 438.68(e) and the accompanying secret
shopper surveys of plan's compliance with them (described in section
I.B.1.c. of this final rule) proposed at Sec. 438.68(f) are authorized
by section 1932(b)(5) of the Act, and is extended to PIHPs and PAHPs
through regulations based on our authority under section 1902(a)(4) of
the Act, and authorized for CHIP through section 2103(f)(3) of the Act.
We believed that secret shopper surveys could provide unbiased,
credible, and representative data on how often network providers are
offering routine appointments within the State's appointment wait time
standards and these data will aid managed care plans as they assess
their networks, under Sec. 438.207(b), and provide an assurance to
States that their networks have the capacity to serve the expected
enrollment in their service area and that it offers appropriate access
to preventive and primary care services for their enrollees. States
should find the results of the secret shopper surveys a rich source of
information to assess compliance with the components of their quality
strategy that address access to care and determine whether covered
services are available within reasonable timeframes, as required in
section 1932(c)(1)(A)(i) of the Act and required
[[Page 41015]]
for CHIP through section 2103(f)(3) of the Act.
Section 1932(d)(5) of the Act requires that, no later than July 1,
2018, contracts with MCOs and PCCMs, as applicable, must include a
provision that providers of services or persons terminated (as
described in section 1902(kk)(8) of the Act) from participation under
this title, title XVIII, or title XXI must be terminated from
participating as a provider in any network. Although States have had to
comply with this provision for several years, we believe we should
reference this important provision in 42 CFR part 438, as well as use
our authority under section 1902(a)(4) of the Act to apply it to PIHPs
and PAHPs. To do this, we proposed a new Sec. 438.214(d)(2) to reflect
that States must ensure through their MCO, PIHP, and PAHP contracts
that providers of services or persons terminated (as described in
section 1902(kk)(8) of the Act) from participation under this title,
title XVIII, or title XXI must be terminated from participating as a
provider in any Medicaid managed care plan network.
We proposed that States comply with Sec. 438.68(b)(1), (e), and
(g) no later than the first MCO, PIHP, or PAHP rating period that
begins on or after 3 years after the effective date of the final rule
as we believe this is a reasonable timeframe for compliance. We
proposed that States comply with Sec. 438.68(f) no later than the
first MCO, PIHP, or PAHP rating period that begins on or after 4 years
after the effective date of the final rule. We proposed that States
comply with Sec. 438.68(d)(1)(iii) no later than the first MCO, PIHP,
or PAHP rating period that begins on or after 2 years after the
effective date of the final rule. We have proposed these applicability
dates in Sec. 438.68(h) for Medicaid, and for separate CHIPs through
an existing cross-reference at Sec. 457.1218 and a proposed cross-
reference at Sec. 457.1200(d).
We summarize and respond to public comments received on appointment
wait time standards (Sec. Sec. 438.68(e) and 457.1218) below.
Comment: Many commenters supported our proposals related to
appointment wait time standards in Sec. 438.68(e) for Medicaid, and
through cross-reference at Sec. 457.1218 for separate CHIPs, and
affirmed that development and enforcement of appointment wait times
would contribute to improved access to enrollees.
Response: We appreciate the support for our proposals and believe
that appointment wait time standards will complement the quantitative
network adequacy standards already implemented and enrich the data
available to States for monitoring access to care.
Comment: Many commenters supported requiring appointment wait time
standards but suggested that 10- and 15-business days may not be the
appropriate standards. Most commenters that offered alternatives
recommended either 30 business days--which is consistent with Medicare
Advantage for routine appointments--or 30- and 45-days. A few
recommended other maximum timeframes as high as 90 days. Some
commenters stated that although aligning Medicaid managed care wait
time standards with those of the FFMs seems a reasonable approach given
the churn between the programs, the FFMs have not yet implemented the
10- and 15-business day standards so there is no data to verify whether
they are realistic. A few commenters noted that they believe that
Medicaid standards should not be significantly shorter than the average
wait time for physician services in the United States generally. One
commenter recommended that CMS collect data to calculate a baseline
over a multi-year period and then use that to inform the development of
a benchmark for improved access that is both feasible and meaningful.
Response: We appreciate the many comments on our 10- and 15-
business day appointment wait time proposal. In developing this
proposal, we considered other appointment wait time standards including
30 business days and 45 business days. However, we believe 30 business
days and 45 business days as the maximum wait time may be too long as a
standard; we understand it may be a realistic timeframe currently for
other types of appointments but we were not convinced that they should
be the standard for outpatient mental health and SUD, primary care, and
OB/GYN appointments as these appointment types are the most commonly
used, are indicators of core population health, and very often prevent
the need for urgent or emergent care. We acknowledge that we do not yet
have compliance data from the FFMs to substantiate that 10- and 15-
business day appointment wait time standards are achieveable or
appropriate for Medicaid and CHIP managed care programs. However, we
believe that any alignment with the FFMs strengthens managed care plan
and provider performance due to the high overlap between the programs.
Many issuers offering QHPs also offer Medicaid and CHIP managed care
plans and may be able to find efficiencies in their policies and
practices. Similarly, payers that have QHPs and Medicaid and CHIP
managed care plans often have many of the same providers in both
networks, and having similar standards eases administrative burden on
the providers. We agree that monitoring data over time is important and
will help us assess whether the 10- and 15-business day standards need
revision or if other systemic efforts are needed to improve appointment
wait times, such as national initiatives to increase the provider
supply. However, we believe we should finalize the new requirements and
collect data concurrently to generate the most useful results.
Comment: Some commenters recommended that CMS define ``routine''
for appointment wait time standards for consistency in implementation
and results while others supported letting States define it to be
reflective of their local markets.
Response: We understand commenters' concerns regarding consistency
in implementation and interpreting the results of secret shopper
surveys for compliance with appointment wait times. Currently,
Medicaid, CHIP, Medicare, and the FFMs do not have a codified
definition for a ``routine'' appointment. We believe that providers use
many factors, including current specialty-specific clinical standards
to assess appointment requests. We encourage States to work with their
managed care plans and their network providers and even other States to
develop a definition of ``routine'' appointment to ensure consistency
within and across their managed care programs. At a minimum, we expect
any definition of a ``routine'' appointment to include appointments for
services such as well-child visits, annual gynecological exams, and
medication management. We decline to adopt a definition of ``routine''
that States would be required to use in this final rule but will review
data from the secret shopper surveys and may consider adding a
definition in future guidance or rulemaking.
Comment: Some commenters recommended that CMS define ``urgent'' and
``emergent'' and include these types of appointments in the appointment
wait time standards as well. A few commenters suggested that CMS refine
the appointment wait time standards by specifying existing patient
appointments separately from new patient appointments given that new
patients often need an extended initial visit which is often not
available within 10- or 15-business days.
[[Page 41016]]
Response: We decline to define ``urgent'' and ``emergent'' as we
are not implementing appointment wait time standards in Sec. 438.68(e)
and through cross-reference at Sec. 457.1218 for urgent or emergent
appointments. We did not propose appointment wait time standards for
urgent or emergent appointments given the potential for serious harm
when there is a need for such care. We believe it is prudent to start
with less time-sensitive appointments and use secret shopper data to
inform any potential future rulemaking on urgent or emergent wait time
standards. However, we remind States and managed care plans that
``emergency medical condition'' is defined in Sec. Sec. 438.114(a) and
457.10 as a medical condition manifesting itself by acute symptoms of
sufficient severity (including severe pain) that a prudent layperson,
who possesses an average knowledge of health and medicine, could
reasonably expect the absence of immediate medical attention to result
in the following: (i) Placing the health of the individual (or, for a
pregnant woman, the health of the woman or her unborn child) in serious
jeopardy; (ii) Serious impairment to bodily functions; or (iii) Serious
dysfunction of any bodily organ or part. As noted in the prior
response, we will review data from the secret shopper surveys to
determine if adding additional definitions could improve appointment
wait time compliance or measurement.
We appreciate commenters' suggestion to add specificity to
appointment availability by separately measuring for new and existing
patients. However, we do not want to make developing and implementing
appointment wait time standards unnecessarily complicated, particularly
since this will be a new way of assessing access for some States.
States are welcome to add this level of detail to their appointment
wait time standards, but we decline to require it in this final rule.
States that set appointment wait time standards separately for new and
existing patients must ensure that both standards comply with the
maximum wait times in Sec. 438.68(e).
Comment: A few commenters recommended that States obtain input from
interested parties to aide in choosing the fourth appointment type.
Response: We agree with commenters and encourage States to consult
with a wide range of interested parties--including their Medicaid and
CHIP managed care plans, other plan types, providers, enrollees, and
local advocacy organizations--when determining which provider or
specialty to select to comply with Sec. Sec. 438.68(e)(1)(iv) and
457.1218.
Comment: One commenter questioned how appointment wait time
standards apply to dual eligible special needs plans (D-SNPs) and how
they intersect with existing Medicare requirements. The commenter noted
concern that, without clarification, there could be confusion on secret
shopper surveys and enforcement of wait time standards.
Response: We appreciate the comment and the opportunity to clarify.
The appointment wait time standards finalized in Sec. 438.68(e) apply
to routine appointments with certain types of Medicaid and CHIP managed
care network providers. For Medicaid managed care plans that are also
D-SNPs in Medicare Advantage, States are only required by Sec.
438.68(e)(1)(i) through (iii) to apply appointment wait time standards
if the MCO, PIHP or PAHP is the primary payer. Any requirements on D-
SNPs for services under the D-SNP contract with CMS are addressed in
Medicare Advantage regulations.
Comment: A few commenters suggested that instead of measuring
compliance with appointment wait time standards linked to remedy plans,
CMS should provide incentives to providers that meet certain wait time
standards. These commenters noted this would be far more effective than
approaching it from a punitive perspective. Commenters also recommended
that managed care plans look at other policies and practices that
impact provider contracting and appointment availability such as timely
credentialing, accurate and timely claims payment, and inefficient and
redundant prior authorization processes.
Response: We agree that managed care plans offering incentives to
providers that meet appointment wait time standards is a very useful
suggestion and encourage managed care plans to consider it as part of
developing a more comprehensive approach to appointment availability.
There are many processes used by managed care plans that influence a
provider's willingness to be part of a network and managed care plans
should continually monitor processes that may jeopardize their
networks' stability and take action to address them. However, we do not
agree that the results from secret shopper surveys should be used for
incentives alone. We believe that remedy plans will help States and
managed care plans address identified access concerns and secret
shopper survey results will provide timely data to inform the
development of robust and effective remedy plans. We acknowledge that
remedy plans should not be the only tool used by states and managed
care plans and support the use of multifaceted approaches to improve
access.
Comment: Some commenters recommended that CMS require managed care
plans to include a hold harmless provision in their network provider
contracts so that network providers cannot be held responsible for the
managed care plan's compliance with appointment wait time standards.
Commenters stated concern that some managed care plans may impose some
type of penalty on network providers that do not offer appointments
that comply with the appointment wait time standards and that these
actions could have the unintended consequence of worsening enrollees'
access to care as physician practices are forced to see fewer Medicaid
patients or opt out of being network providers.
Response: We appreciate commenters raising this concern and while
it is not immediately clear to us why managed care plans would believe
punitive action on network providers would be an effective way to
encourage providers to offer more timely appointments, we defer to
States and managed care plans to determine the appropriateness of a
hold harmless provision in network contracts. As we note in the prior
comment, strengthening managed care plan networks through timely
credentialing, accurate and timely claims payment, and efficient prior
authorization processes would seem a far more productive way to support
providers to improve or expand access. States and managed care plans
should collaborate to bolster relationships with providers and focus on
the shared goal of improving access.
Comment: One commenter suggested that we revise Sec. 438.68(e) to
use ``services'' instead of ``provider types'' to allow PCPs that do
gynecological services to be counted towards compliance for primary
care, as well as OB/GYN.
Response: We appreciate this comment and agree that ``services''
instead of ``provider types'' in Sec. 438.68(e)(1) would be clearer
and more consistent with Sec. Sec. 438.68(a) and 438.206. Using
``services'' would also be more consistent with managed care plan
contracts' specification of ``covered services.'' Our intent in
proposing and finalizing appointment wait time standards is assessing
access to care, not to limit the types of providers that could offer
the services in paragraphs (e)(1)(i) through (iii). Understanding the
scope of services subject to appointment wait time standards can be
useful when
[[Page 41017]]
incorporated into the secret shopper survey by producing more detailed
results and a truer view of access as experienced by enrollees. We
accordingly are adopting the commenter's suggestion to use ``services''
instead of ``provider types'' in the final version of Sec.
438.68(e)(1) and, for consistency, (e)(3).
To ensure consistency in Sec. 438.68(d) with the adoption of
``services, we are finalizing minor wording revisions. In paragraph
(d)(1), we are removing ``provider-specific'' to be more inclusive of
all network standards in Sec. 438.68; in (d)(1)(iii), we are adding
``or for the service type;'' and in paragraph (d)(2), we are adding
``or service'' after ``provider type'' for consistency with Sec.
438.68(e)(1).
Comment: We received numerous suggestions for variations on our
proposed wait time standards. One commenter recommended setting
appointment wait time standards for obstetrical services based on
trimesters, such as appointments within 14 calendar days in the first
trimester, 7 calendar days in second trimester, and 3 calendar days in
the third trimester. Another commenter recommended that CMS permit
States to define an appointment wait time standard for additional
behavioral health specialists, facility types, or service types, either
inpatient or outpatient, as long as the specialist, facility, or
service type identified in the State-defined standard is distinct from
the broader group of outpatient mental health and SUD providers subject
to the 10-business day standard.
Response: States have the flexibility to develop appointment wait
time standards by using more detailed criteria as long as the
additional level of detail does not create a standard that exceeds the
maximum timeframes in Sec. 438.68(e). For example, requiring
obstetrical appointments within 14, 7, and 3 calendar days is
acceptable as none of them exceed the 15- calendar day limit in Sec.
438.68(e)(1)(iii). Additionally, States can also include additional
wait time standards for other services beyond the requirement in
(e)(1)(iv) for a State-selected type, but they cannot replace or
supplant the services in Sec. 438.68(e)(1)(i)-(iii).
Comment: A few commenters recommended that the appointment wait
time standards in Sec. 438.68(e)(1) use ``calendar days'' instead of
``business days'' for ease of application and monitoring. One commenter
recommended adding appointment wait time standards for HCBS, which is
rendered 24/7 thus making ``calendar days'' more appropriate.
Response: We decline to accept the commenters' suggestion as we
believe that requiring appointment wait time standards only for routine
appointments in this final rule makes ``business days'' appropriate.
Additionally, using ``business'' days is consistent with standards for
the FFMs and Medicare Advantage, which reduces burden on States,
managed care plans, and providers. Should we consider revising Sec.
438.68(e) in future rulemaking to address HCBS, we will consider the
impact of using a calendar day standard.
Comment: Some commenters recommended that there be an exception
process for rural areas or health professional shortage areas (HPSAs),
as they will present some very large challenges for managed care plans
to meet the appointment wait time standards due to provider shortages.
One commenter recommended that CMS add more specificity to Sec.
438.68(d) so that States use exceptions consistently.
Response: We understand that provider shortages, particularly
prevalent in rural areas and HPSAs, present challenges to ensuring
timely access. This is why we believe requiring the use of appointment
wait time standards and measuring compliance with them is important and
should produce valuable information that can help States and managed
care plans develop effective solutions. However, we acknowledge that
implementing standards, analyzing results, and developing solutions to
access issues that need improvement will take time and in the interim,
States may want a mechanism to identify known access challenges.
Existing regulations at Sec. 438.68(d) permit States to use an
exception process for any of the provider-specific network standards
required in Sec. 438.68. The flexibility to permit States to decide if
and/or when to use an exception process was codified in the 2016 final
rule. States have been using exception processes that meet the needs of
their programs and may find this provision useful as areas for
improvement are identified and remedy plans are implemented.
Comment: Some commenters did not support requiring appointment wait
time standards; they stated that one of the most common reasons for
access issues is a shortage of providers in an area or a specialty and
that appointment wait time standards cannot address provider supply.
Commeters stated particular concerns for mental health and SUD, rural
areas, and HPSAs. These commenters stated that appointment wait time
standards will generate a significant amount of burden for States,
plans, and providers with little, if any, improvement in access. Some
commenters raised concerns that appointment wait time standards will
increase pressure on providers and lead to burn out, expand patient
panels to unmanageable levels, and potentially drive providers out of
Medicaid. One commenter stated that national standards without
consideration for regional variances, market makeup, or workforce
constraints, are overly rigid and, despite States' and plans' best
efforts, may simply prove unachievable. Another stated that States must
have the autonomy to design and implement their own standards to
account for State-specific conditions. Commenters recommended that CMS
partner with other agencies such as the Health Resources and Services
Administration to promote growth of the provider supply nationally.
Response: We acknowledge that States developing and enforcing
appointment wait time standards will not solve all access issues.
However, we believe they can be effective for the majority of the
routine appointments for services that we are finalizing. While some
States already enforce appointment wait time standards, we know that it
will be new and impose some new burden initially for other States. We
believe the effort will have a positive impact on access once the
standards are implemented and the State, managed care plans, and
providers are taking a coordinated approach towards the same goal. We
also believe that there are opportunities for managed care plans to
ease provider burden to enable them to provide timely appointments such
as by ensuring timely, efficient credentialing processes, ensuring that
prior authorization is used effectively and meaningfully, and by
ensuring timely and accurate claims payment. We believe we provide
States the ability to account for regional variances, State-specific
conditions, market makeup, or workforce constraints in two ways: by
only providing the maximum appointment wait time with States setting
the exact standard within that parameter for three types of services
and by allowing States to set the wait time standard for an additional
State-selected service. We reflect these in Sec. 438.68(e) with ``[. .
.]State-established timeframes but no longer than[. . .]'' and Sec.
438.68(e)(1)(iv) with ``[. . .]State-established timeframes.'' We
intentionally drafted Sec. 438.68(e) to provide parameters for
appointment wait time standards while also giving States the ability to
customize the
[[Page 41018]]
standards for their specific markets, populations, and programs.
Lastly, broader efforts are underway to address access nationally. For
example, on July 25, 2023, the Department of Agriculture announced
USDA's Emergency Rural Health Care Grants \31\ to help strengthen rural
America's health care infrastructure. Additionally, we released a
proposed rule on September 1, 2023 proposing minimum staffing standards
for long-term care facilities and Medicaid institutional payment
transparency reporting.\32\
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\31\ <a href="https://www.usda.gov/media/press-releases/2023/07/25/biden-harris-administration-helps-expand-access-rural-health-care">https://www.usda.gov/media/press-releases/2023/07/25/biden-harris-administration-helps-expand-access-rural-health-care</a>.
\32\ <a href="https://www.federalregister.gov/public-inspection/2023-18781/medicare-and-medicaid-programs-minimum-staffing-standards-for-long-term-care-facilities-and-medicaid">https://www.federalregister.gov/public-inspection/2023-18781/medicare-and-medicaid-programs-minimum-staffing-standards-for-long-term-care-facilities-and-medicaid</a>.
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Comment: Many commenters suggested revising the compliance date for
appointment wait time standards from the first rating period for
contracts with MCOs, PIHPs and PAHPs beginning on or after 3 years
after the effective date of the final rule. We received comments
suggesting an applicability date as soon as 1 year after the final
rule's effective date and a few for applicability dates in excess of 5
years.
Response: We appreciate the comments on our proposed applicability
date. We considered all of the access provisions in the final rule and
have chosen applicability dates that balance the needs of enrollees
with the level of effort necessary to effectively implement each
provision. We believe finalizing the applicability date of the first
rating period for contracts with MCOs, PIHPs and PAHPs beginning on or
after 3 years after the effective date of the final rule is appropriate
for appointment wait time standards in Sec. 438.68(e).
Comment: We received a few comments in response to our request in
the preamble on whether behavioral health PIHPs and PAHPs include other
services that would enable States to select another service to fulfill
Sec. 438.68(e)(1)(iv). Commenters clarified that most behavioral
health PIHPs and PAHPs do not include other covered services, and
therefore, States would be unable to comply with Sec.
438.68(e)(1)(iv).
Response: We appreciate commenters clarifying this for us as we
want to ensure that the regulation text is accurate. To reflect this,
we will finalize a revision to Sec. 438.68(e)(1)(iv) to add ``and
covered in the MCO's, PIHP's, or PAHP's contract'' after ``[. . .]other
than those listed in paragraphs (e)(1)(i) through (iii) of this
section.'' This will clarify that States do not need to develop
appointment wait time standards or perform secret shopper surveys for
services other than mental health and SUD for PIHPs and PAHPs that
cover mental health and SUD services only.
Comment: One commenter stated that CMS does not have the authority
to set national appointment wait time standards because section
1932(c)(1)(A)(i) of the Act authorizes States to develop standards for
access to care, not the Secretary.
Response: We clarify for the commenter that the text at Sec.
438.68(e) requires States to develop appointment wait time standards
and that Sec. 438.68(e)(i) through (iii) only establish the maximum
times within which States must set their standards.
Comment: We received several comments supportive of including
appointment wait time standards as a required provision in MCO, PIHP,
and PAHP contracts in Sec. 438.206(c)(1)(i).
Response: We thank commenters for their support. We note a drafting
error in the proposed rule for the applicability date for Sec.
438.206(c)(1)(i) as specified in Sec. 438.206(d). We proposed an
applicability date in Sec. 438.206(d) of the first rating period that
begins on or after 4 years after July 9, 2024; however; to align with
the requirement for States to develop and enforce appointment wait time
standards at Sec. 438.68(b), managed care plan contracts need to
reflect the appointment wait time standards on the same timeframe.
Because Sec. 438.68(b) was proposed and is being finalized as the
first rating period beginning on or after 3 years after July 9, 2024,
so should Sec. 438.206(c)(1)(i) as specified in Sec. 438.206(d).
Therefore, in this final rule, Sec. 438.206(d) is being finalized as
applicable on the first rating period beginning on or after 3 years
after July 9, 2024.
Comment: One commenter suggested that CMS strengthen Federal
requirements to ensure children enrolled in CHIP managed care plans
have timely access to all covered services, when available, and
encouraged CMS to further define specialists as being pediatric
specialists. The commenter noted that they believe pediatric
specialists are often not included in CHIP MCO networks if the State or
Federal standard does not specifically require them. Therefore, CHIP
MCOs may be able to satisfy network adequacy requirements by including
adult specialists, despite their inability to adequately care for the
specialized needs of pediatric patients.
Response: We appreciate the commenters' concern for strengthening
requirements to ensure children enrolled in managed care plans have
timely access to all covered services, when available. We currently
define pediatric specialist in Medicaid at Sec. 438.68(b)(iv), which
is incorporated into CHIP regulations through cross-reference at Sec.
457.1218. We remind States that the standards described in Medicaid at
Sec. 438.68(b)(iv) and in CHIP through cross-reference at Sec.
457.1218 are the minimum standards that a State must meet to comply
with their annual quality review. If a State has identified
deficiencies in pediatric specialist availability, States have the
option to develop higher standards than the Federal minimum.
After reviewing the public comments, we are finalizing Sec.
438.68(e) as proposed except for a revision to use ``services'' instead
of ``provider types'' in Sec. 438.68(e)(1) and (e)(3) and to add ``and
covered in the MCO's, PIHP's, or PAHP's contract'' to Sec.
438.68(e)(1)(iv). We are also finalizing minor conforming changes in
Sec. 438.68(d)(1) and (2). We are finalizing Sec. 438.206(d), which
is applicable for separate CHIPs through an existing cross-reference at
Sec. 457.1230(a) and a proposed cross-reference at Sec. 457.1200(d),
as ``. . . the first rating period that begins on or after 3 years
after July 9, 2024 . . .'' We are finalizing Sec. Sec. 438.68(h),
438.206(c) and 457.1218 as proposed.
c. Secret Shopper Surveys (Sec. Sec. 438.68(f), 457.1207 and 457.1218)
We recognized that in some States and for some services, Medicaid
beneficiaries face significant gaps in access to care. Evidence
suggested that in some localities and for some services, it takes
Medicaid beneficiaries longer to access medical appointments compared
to individuals with other types of health coverage.\33\ This may be
exacerbated by difficulties in accessing accurate information about
managed care plans' provider networks; although Medicaid and CHIP
managed care plans are required to make regular updates to their online
provider directories in accordance with Sec. Sec. 438.10(h)(3) and
457.1207 respectively, analyses of these directories suggest that a
significant share of provider listings include inaccurate information
on, for example, how to contact the provider, the provider's network
participation, and whether the provider is accepting new
[[Page 41019]]
patients.\34\ Relatedly, analyses have shown that the vast majority of
services delivered to Medicaid beneficiaries are provided by a small
subset of health providers listed in managed care plan provider
directories, with a substantial share of listed providers delivering
little or no care for Medicaid beneficiaries.\35\ Some measures of
network adequacy may not be as meaningful as intended if providers are
``network providers'' because they have a contract with a managed care
plan, but in practice are not actually accepting new Medicaid enrollees
or impose a cap on the number of Medicaid enrollees they will see.
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\33\ W. Hsiang, A. Lukasiewicz, and M. Gentry, ``Medicaid
Patients Have Greater Difficulty Scheduling Health Care Appointments
Compared With Private Insurance Patients: A Meta-Analysis,'' SAGE
Journals, April 5, 2019, available at <a href="https://journals.sagepub.com/doi/full/10.1177/0046958019838118">https://journals.sagepub.com/doi/full/10.1177/0046958019838118</a>.
\34\ A. Burman and S. Haeder, ``Directory Accuracy and Timely
Access in Maryland's Medicaid Managed Care Program,'' Journal of
Health Care for the Poor and Underserved, available at <a href="https://pubmed.ncbi.nlm.nih.gov/35574863/">https://pubmed.ncbi.nlm.nih.gov/35574863/</a> A. Bauman and S. Haeder,
``Potemkin Protections: Assessing Provider Directory Accuracy and
Timely Access for Four Specialties in California,'' Journal of
Health Politics, Policy and Law, 2022, available at <a href="https://pubmed.ncbi.nlm.nih.gov/34847230/">https://pubmed.ncbi.nlm.nih.gov/34847230/</a>.
\35\ A. Ludomirsky, et. al., ``In Medicaid Managed Care
Networks, Care is Highly Concentrated Among a Small Percentage of
Physicians,'' Health Affairs, May 2022, available at <a href="https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2021.01747">https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2021.01747</a>.
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To add a greater level of validity and accuracy to States' efforts
to measure network adequacy and access, we proposed to require States
to use secret shopper surveys as part of their monitoring activities.
Secret shopper surveys are a form of research that can provide high-
quality data and actionable feedback to States and managed care plans
and can be performed either as ``secret'' meaning the caller does not
identify who they are performing the survey for or ``revealed'' meaning
the caller identifies the entity for which they are performing the
survey. While both types of surveys can produce useful results, we
believe the best results are obtained when the survey is done as a
secret shopper and the caller pretends to be an enrollee (or their
representative) trying to schedule an appointment. Results from these
surveys should be unbiased, credible, and reflect what it is truly like
to be an enrollee trying to schedule an appointment, which is a
perspective not usually provided by, for example, time and distance
measures or provider-to-enrollee ratios. Many States and managed care
plans currently use some type of survey to monitor access; however, we
believe there should be some consistency to their use for Medicaid
managed care programs to enable comparability.
To ensure consistency, we proposed a new Sec. 438.68(f) to require
that States use independent entities to conduct annual secret shopper
surveys of managed care plan compliance with appointment wait time
standards proposed at Sec. 438.68(e) and the accuracy of certain data
in all managed care plans' electronic provider directories required at
Sec. 438.10(h)(1). These proposed changes apply equally to separate
CHIPs through existing cross-references at Sec. Sec. 457.1218 and
457.1207. We believe that the entity that conducts these surveys must
be independent of the State Medicaid or CHIP agency and its managed
care plans subject to the survey to ensure unbiased results. Therefore,
at Sec. 438.68(f)(3)(i), we proposed to consider an entity to be
independent of the State if it is not part of the State Medicaid agency
and, at Sec. 438.68(f)(3)(ii), to consider an entity independent of a
managed care plan subject to a secret shopper survey if the entity is
not an MCO, PIHP, or PAHP; is not owned or controlled by any of the
MCOs, PIHPs, or PAHPs subject to the surveys; and does not own or
control any of the MCOs, PIHPs, or PAHPs subject to the surveys. Given
the valuable data the proposed secret shopper surveys could provide
States, we believe requiring the use of an independent entity to
conduct the surveys is critical to ensure unbiased results.
We also proposed to require States to use secret shopper surveys to
determine the accuracy of certain provider directory information in
MCOs', PIHPs', and PAHPs' most current electronic provider directories
at Sec. 438.68(f)(1)(i). Since we believe that paper directory usage
is dwindling due to the ever-increasing use of electronic devices and
because electronic directory files are usually used to produce paper
directories, we are not requiring secret shopper validation of paper
directories. Rather, we proposed in Sec. 438.68(f)(1)(i)(A) through
(C) to require surveys of electronic provider directory data for
primary care providers, OB/GYN providers, and outpatient mental health
and SUD providers, if they are included in the managed care plan's
provider directories. We proposed these provider types because they are
the provider types with the highest utilization in many Medicaid
managed care programs.
To ensure that a secret shopper survey can be used to validate
directory data for every managed care plan, we proposed in Sec.
438.68(f)(1)(i)(D) to require secret shopper surveys for provider
directory data for the provider type selected by the State for its
appointment wait time standards in Sec. 438.68(e)(1)(iv). We
acknowledged that the State-chosen provider type may vary across
managed care plan types and thus, States may have to select multiple
provider types to accommodate all their managed care programs. For
example, a State may select a provider type from their MCOs'
directories that is not a provider type included in their mental health
PIHP's directories; just as the State may select a provider type from
their behavioral health PIHPs' directories that is not a provider type
included in their dental PAHPs' directories. We noted that the State-
chosen provider type cannot vary among plans of the same type within
the same managed care program. Although this degree of variation
between States will limit comparability, we believe that the value of
validating provider directory data outweighs this limitation and that
having results for provider types that will be important to State-
specific access issues will be a rich source of data for States to
evaluate managed care plan performance and require the impacted plan to
implement timely remediation, if needed.
At Sec. 438.68(f)(1)(ii)(A) through (D), we proposed to require
that States use independent entities to conduct annual secret shopper
surveys to verify the accuracy of four pieces of data in each MCO,
PIHP, or PAHP electronic provider directory required at Sec.
438.10(h)(1): the active network status with the MCO, PIHP, or PAHP;
the street address as required at Sec. 438.10(h)(1)(ii); the telephone
number as required at Sec. 438.10(h)(1)(iii); and whether the provider
is accepting new enrollees as required at Sec. 438.10(h)(1)(vi). We
believe these are the most critical pieces of information that
enrollees rely on when seeking network provider information.
Inaccuracies in this information can have a tremendously detrimental
effect on enrollees' ability to access care since finding providers
that are not in the managed care plan's network, have inaccurate
addresses and phone numbers, or finding providers that are not
accepting new patients listed in a plan's directory can delay their
ability to contact a network provider and ultimately, receive care.
To maximize the value of using secret shopper surveys to validate
provider directory data, identified errors must be corrected as quickly
as possible. Therefore, at Sec. 438.68(f)(1)(iii) and (iv)
respectively, we proposed that States must receive information on all
provider directory data errors identified in secret shopper surveys no
later than 3 business days from identification by the entity conducting
the secret shopper survey and that States must then send that data to
the applicable managed care plan within 3 business days of receipt. We
also proposed in Sec. 438.68(f)(1)(iii) that
[[Page 41020]]
the information sent to the State must be ``sufficient to facilitate
correction'' to ensure that enough detail is provided to enable the
managed care plans to quickly investigate the accuracy of the data and
make necessary corrections. We note that States could delegate the
function of forwarding the information to the managed care plans to the
entity conducting the secret shopper surveys so that the State and
managed care plans receive the information at the same time. This will
hasten plans' receipt of the information, as well as alleviate State
burden. To ensure that managed care plans use the data to update their
electronic directories, we proposed at Sec. 438.10(h)(3)(iii) to
require MCOs, PIHPs, and PAHPs to use the information from secret
shopper surveys required at Sec. 438.68(f)(1) to obtain corrected
information and update provider directories no later than the
timeframes specified in Sec. 438.10(h)(3)(i) and (ii), and included in
separate CHIP regulations through an existing cross-reference at Sec.
457.1207. While updating provider directory data after it has been
counted as an error in secret shopper survey results will not change a
managed care plan's compliance rate, it will improve provider directory
accuracy more quickly and thus, improve access to care for enrollees.
To implement section 5123 of the Consolidated Appropriations Act,
2023,\36\ which requires that managed care plans' and PCCM entities'
(if applicable) provider directories be searchable and include specific
information about providers, we proposed to revise Sec. 438.10(h)(1)
by adding ``searchable'' before ``electronic form'' to require that
managed care plans' and PCCM entities' (if applicable) electronic
provider directories be searchable. We also proposed to add paragraph
(ix) to Sec. 438.10(h)(1) to require that managed care plans' and PCCM
entities' (if applicable) provider directories include information on
whether each provider offers covered services via telehealth. These
proposals will align the text in Sec. 438.10(h) with section
1932(a)(5) of the Act, as amended by section 5123 of the Consolidated
Appropriations Act, 2023. Section 5123 of the Consolidated
Appropriations Act, 2023 specifies that the amendments to section
1932(a)(5) of the Act will take effect on July 1, 2025; therefore, we
proposed that States comply with the revisions to Sec. 438.10(h)(1)
and new (h)(1)(ix) by July 1, 2025.
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\36\ <a href="https://www.congress.gov/117/bills/hr2617/BILLS-117hr2617enr.pdf">https://www.congress.gov/117/bills/hr2617/BILLS-117hr2617enr.pdf</a>.
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Our proposals for a secret shopper survey of provider directory
data proposed at Sec. 438.68(f)(1) are authorized by section
1932(a)(5)(B)(i) of the Act for Medicaid and through section 2103(f)(3)
of the Act for CHIP, which require each Medicaid MCO to make available
the identity, locations, qualifications, and availability of health
care providers that participate in their network. The authority for our
proposals is extended to PIHPs and PAHPs through regulations based on
our authority under section 1902(a)(4) of the Act. We proposed that
secret shopper surveys include verification of certain providers'
active network status, street address, telephone number, and whether
the provider is accepting new enrollees; these directory elements
reflect the identity, location, and availability, as required for
Medicaid in section 1932(a)(5)(B)(i) of the Act and required for CHIP
through section 2103(f)(3) of the Act. Although the statute does not
explicitly include ``accurate'' to describe ``the identity, locations,
qualifications, and availability of health care providers,'' we believe
it is the intent of the text and therefore, utilizing secret shopper
surveys to identify errors in provider directories will help managed
care plans ensure the accuracy of the information in their directories.
Further, our proposal at Sec. 438.10(h)(3)(iii) for managed care plans
to use the data from secret shopper surveys to make timely corrections
to their directories will also be consistent with statutory intent to
reflect accurate identity, locations, qualifications, and availability
information. Secret shopper survey results will provide vital
information to help managed care plans fulfill their obligations to
make the identity, locations, qualifications, and availability of
health care providers that participate in the network available to
enrollees and potential enrollees.
We believe using secret shopper surveys could also be a valuable
tool to help States meet their enforcement obligations of appointment
wait time standards, required in Sec. 438.68(e). Secret shopper
surveys are perhaps the most commonly used tool to assess health care
appointment availability and can produce unbiased, actionable results.
At Sec. 438.68(f)(2), we proposed to require States to determine each
MCO's, PIHP's, and PAHP's rate of network compliance with the
appointment wait time standards proposed in Sec. 438.68(e)(1). We also
proposed in Sec. 438.68(f)(2)(i) that, after consulting with States
and other interested parties and providing public notice and
opportunity to comment, we may select additional provider types to be
added to secret shopper surveys of appointment wait time standards. We
believe that after reviewing States' assurances of compliance and
accompanying analyses of secret shopper survey results as proposed at
Sec. 438.207(d), and through an existing cross-reference at Sec.
457.1230(b) for separate CHIP, we may propose additional provider types
be subject to secret shopper surveys in future rulemaking.
In section I.B.1.b. of this final rule above, we noted that States
need to balance the use of telehealth with the availability of
providers that can provide in-person care and enrollees' preferences
for receiving care to ensure that they establish network adequacy
standards under Sec. 438.68(e) that accurately reflect the practical
use of telehealth and in-person appointments in their State. To ensure
that States reflect this, in Sec. 438.68(f)(2)(ii) we proposed that
appointments offered via telehealth only be counted towards compliance
with appointment wait time standards if the provider also offers in-
person appointments and that telehealth visits offered during the
secret shopper survey be separately identified in the survey results.
We believe it is appropriate to prohibit managed care plans from
meeting appointment wait time standards with telehealth appointments
alone and by separately identifying telehealth visits in the results
because this will help States determine if the type of appointments
being offered by providers is consistent with expectations and
enrollees' needs. We note that this proposal differs from the draft
requirement for QHPs in the FFMs beginning in 2025, which does not take
telehealth appointments into account for purposes of satisfying the
appointment wait time standards.\37\ Managed care encounter data in
Transformed Medicaid Statistical Information system (T-MSIS) reflect
that most care is still provided in-person and that use of telehealth
has quickly returned to near pre-pandemic levels. We believe by
explicitly proposing to limit the counting of telehealth visits to meet
appointment wait time standards, as well as the segregation of
telehealth and in-person appointment data, secret shopper survey
results will produce a more accurate reflection of what enrollees'
experience when attempting to access care. We considered aligning
appointment wait times and telehealth visits with the process used by
MA for
[[Page 41021]]
demonstrating overall network adequacy, which permits MA organizations
to receive a 10-percentage point credit towards the percentage of
beneficiaries residing within published time and distance standards for
the applicable provider specialty type and county when the plan
includes one or more telehealth providers that provide additional
telehealth benefits. See Sec. 422.116. However, we believe our
proposed methodology will provide States and CMS with more definitive
data to assess the use of telehealth and enrollee preferences and will
be the more appropriate method to use at this time. We requested
comment on this proposal.
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\37\ 45 CFR 156.230; 2025 Draft Letter to Issuers in the
Federally facilitated Exchanges, available at <a href="https://www.cms.gov/files/document/2025-draft-letter-issuers-11-15-2023.pdf">https://www.cms.gov/files/document/2025-draft-letter-issuers-11-15-2023.pdf</a>.
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Secret shopper surveys of plans' compliance with appointment wait
time standards proposed at Sec. 438.68(f)(2) is authorized by section
1932(b)(5) of the Act for Medicaid and through section 2103(f)(3) of
the Act for CHIP, because secret shopper surveys could provide
unbiased, credible, and representative data on how often network
providers are offering routine appointments within the State's
appointment wait time standards. This data should aid managed care
plans as they assess their networks, pursuant to Sec. 438.207(b), and
provide an assurance to States that their networks have the capacity to
serve the expected enrollment in their service area. States should find
the results of the secret shopper surveys a rich source of information
to assess compliance with the components of their quality strategy that
address access to care and determine whether covered services are
available within reasonable timeframes, as required in section
1932(c)(1)(A)(i) of the Act for Medicaid and section 2103(f)(3) of the
Act for CHIP.
It is critical that secret shopper survey results be obtained in an
unbiased manner using professional techniques that ensure objectivity.
To reflect this, we proposed at Sec. 438.68(f)(3) that any entity that
conducts secret shopper surveys must be independent of the State
Medicaid agency and its managed care plans subject to a secret shopper
survey. In Sec. 438.68(f)(3)(i) and (ii), we proposed the criteria for
an entity to be considered independent: Section 438.68(f)(3)(i)
proposes that an entity cannot be a part of any State governmental
agency to be independent of a State Medicaid agency and Sec.
438.68(f)(3)(ii) proposes that to be independent of the managed care
plans subject to the survey, an entity will not be an MCO, PIHP, or
PAHP, will not be owned or controlled by any of the MCOs, PIHPs, or
PAHPs subject to the surveys, and will not own or control any of the
MCOs, PIHPs, or PAHPs subject to the surveys. We proposed to define
``independent'' by using criteria that is similar, but not as
restrictive, as the criteria used for independence of enrollment
brokers and specified at Sec. 438.810(b)(1). We believe this
consistency in criteria will make it easier for States to evaluate the
suitability of potential survey entities. We reminded States that the
optional EQR activity at Sec. 438.358(c)(5) could be used to conduct
the secret shopper surveys proposed at Sec. 438.68(f) and for secret
shopper surveys conducted for MCOs, States may be able to receive
enhanced Federal financial participation (FFP), pursuant to Sec.
438.370.
Secret shopper surveys can be conducted in many ways, using varying
levels of complexity and gathering a wide range of information. We
wanted to give States flexibility to design their secret shopper
surveys to produce results that not only validate managed care plans'
compliance with provider directory data accuracy as proposed at Sec.
438.68(f)(1) and appointment wait time standards at Sec. 438.68(f)(2),
but also provide States the opportunity to collect other information
that will assist them in their program monitoring activities and help
them achieve programmatic goals. To provide this flexibility, we
proposed a limited number of methodological standards for the required
secret shopper surveys. In Sec. 438.68(f)(4), we proposed that secret
shopper surveys use a random sample and include all areas of the State
covered by the MCO's, PIHP's, or PAHP's contract. We believe these are
the most basic standards that all secret shopper surveys must meet to
produce useful results that enable comparability between plans and
among States. We proposed in Sec. 438.68(f)(4)(iii) that secret
shopper surveys to determine plan compliance with appointment wait time
standards will have to be completed for a statistically valid sample of
providers to be clear that a secret shopper surveys must be
administered to the number of providers identified as statistically
valid for each plan. To ensure consistency, equity, and context to the
final compliance rate for each plan, we believe it is important that
inaccurate provider directory data not reduce the number of surveys
administered. Therefore, as a practical matter, if the initial data
provided by a State to the entity performing the survey does not permit
surveys to be completed for a statistically valid sample, the State
must provide additional data to enable completion of the survey for an
entire statistically valid sample. We did not believe this provision
needed to apply to secret shopper surveys of provider directory data
proposed in paragraph (f)(1) since the identification of incorrect
directory data is the intent of those surveys and should be reflected
in a plan's compliance rate.
Because we believe secret shopper survey results can produce
valuable data for States, managed care plans, enrollees, and other
interested parties, we proposed at Sec. 438.68(f)(5), that the results
of these surveys be reported to CMS and posted on the State's website.
Specifically, at Sec. 438.68(f)(5)(i), we proposed that the results of
the secret shopper surveys of provider directory data validation at
Sec. 438.68(f)(1) and appointment wait time standards at Sec.
438.68(f)(2) must be reported to CMS annually using the content, form,
and submission times proposed in Sec. 438.207(d). At Sec.
438.68(f)(5)(ii), we proposed that States post the results on the
State's website required at Sec. 438.10(c)(3) within 30 calendar days
of the State submitting them to CMS. We believe using the existing
report required at Sec. 438.207(d) will lessen burden on States,
particularly since we published the NAAAR template \38\ in July 2022
and are also developing an electronic reporting portal to facilitate
States' submissions. We anticipate revising the data fields in the
NAAAR \39\ to include specific fields for secret shopper results,
including the provider type chosen by the State as required in Sec.
438.68(e)(1)(iv) and (f)(1)(i)(D). This proposal is authorized by
section 1902(a)(6) of the Act which requires that States provide
reports, in such form and containing such information, as the Secretary
may from time to time require.
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\38\ <a href="https://www.medicaid.gov/medicaid/managed-care/downloads/network-assurances-template.xlsx">https://www.medicaid.gov/medicaid/managed-care/downloads/network-assurances-template.xlsx</a>.
\39\ https://www.medicaid.gov/medicaid/managed-care/guidance/
medicaid-and-chip-managed-care-reporting/
index.html#NETWORK:~:text=Report.%20%C2%A0The%20current-
,excel%20template,-(XLSX%2C%20218.99%20KB.
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We recognize that implementing secret shopper surveys will be a
significant undertaking, especially for States not already using them;
but we believe that the data produced by successful implementation of
them will be a valuable addition to States' and CMS's oversight
efforts. As always, technical assistance will be available to help
States effectively implement and utilize secret shopper surveys. We
invited comment on the type of technical assistance that will be most
useful for States, as well as States' best practices and lessons
learned from using secret shopper surveys.
We also proposed in Sec. 438.68(h) that States would have to
comply with
[[Page 41022]]
Sec. 438.68(f) no later than the first MCO, PIHP, or PAHP rating
period that begins on or after 4 years after the effective date of the
final rule.
We summarize and respond to public comments received on Secret
shopper surveys (Sec. Sec. 438.68(f), 457.1207, 457.1218) below.
Comment: Many commenters supported requiring States to use secret
shopper surveys to validate compliance with appointment wait time
standards and to verify the accuracy of certain provider directory
data. Commenters stated that these surveys would provide valuable
information on the access provided by plan networks and provide a
mechanism to drive improvements in accuracy and specificity of provider
directories. Another commenter stated that the results of secret
shopper surveys would provide accurate and transparent plan information
that is vital to ensuring Medicaid managed care populations have access
to the care they need. A few commenters stated the proposed
requirements would bring much-needed consistency to the way these
surveys are conducted which should lead to uniform identification and
quick correction of inaccurate information.
Response: We thank commenters for their support to require secret
shopper surveys as proposed in Sec. 438.68(f). We believe that all
interested parties will benefit from an independent evaluation of the
degree to which managed care plans' networks provide timely
appointments and the accuracy of provider directory data. The results,
particularly for provider directory data, will enable timely
corrections that will improve access.
Comment: Many commenters supported the use of independent entities
to perform the secret shopper surveys. Commenters stated that this
would ensure that surveys were conducted in an impartial manner and
would produce more reliable results. One commenter recommended that we
also include ``any direct or indirect relationship'' to our definition
of ``independence,'' consistent with Sec. 438.810(b)(2)(i).
Response: We appreciate the supportive comments; our intent in
including an independence requirement for the surveyors was to improve
the validity of the results and to assure interested parties that the
results presented an objective assessment of routine appointment
availability for their managed care plan and its network providers. We
decline to modify the definition of ``independence'' in this final
rule. We acknowledge a more robust definition is appropriate in Sec.
438.810(b)(2) for enrollment brokers, but do not believe the same level
is warranted for secret shopper surveys. Enrollment brokers are
responsible for providing information to enrollees to assist them in
making informed decisions when selecting a managed care plan. Because
enrollees are often limited to changing their managed care plans
annually and because managed care plans receive a capitation payment
for each enrollee enrolled in their plan, ensuring that enrollment
brokers are independent of the managed care plans from which enrollees
can choose is critical to ensure that enrollees receive information and
assistance in an unbiased manner and that the enrollees' best interest
is prioritized. We do not believe the same level of risk exists with
secret shopper surveys. Additionally, we have been made aware that
States are sometimes challenged to find entities that meet the
requirements in Sec. 438.810 to fulfill the functions of an enrollment
broker and we did not want to impose those same challenges on States
when procuring secret shopper survey vendors. We believe the functions
of an enrollment broker and a secret shopper survey vendor are
sufficiently different to warrant a different level of requirements for
independence.
Comment: One commenter recommended using revealed shopper surveys
instead of secret shopper surveys. Another commenter recommended that
CMS produce standardized definitions, methodologies, and templates for
use in conducting secret shopper surveys.
Response: We appreciate the comments but decline to adopt them in
this final rule. We believe that secret shopper surveys capture
information that is unbiased, credible, and reflect what enrollees
experience when trying to schedule an appointment. This is not possible
with a revealed survey and, therefore, is less likely to fulfill our
goal of assessing appointment availability or encountering incorrect
provider directory data as enrollees do. To the suggestion that we
publish definitions, methodologies, and templates, we do not believe
that is necessary as we believe States have sufficient experience in
using secret shopper surveys or can rely on the expertise of outside
entities. Further, while we are finalizing a minimum set of
methodological standards for secret shopper surveys in Sec.
438.68(f)(4), we believe States should have some latitude to customize
their surveys beyond the minimum requirements to capture information
and details that impact their programs and populations. We believe that
being overly prescriptive may lessen the surveys' utility.
Comment: A few commenters recommended requiring implementation
sooner than the rating period for contracts with MCOs, PIHPs, and PAHPs
that begins on or after 4 years after the effective date, while other
commenters recommended extending implementation beyond 4 years. A few
commenters stated that a shorter timeframe was reasonable because some
States already use secret shopper surveys for certain aspects of their
program.
Response: We appreciate the range of comments on the applicability
date. Because secret shopper surveys will be used to measure compliance
with appointment wait time standards and provider directory accuracy,
we intentionally proposed an applicability date that was 1 year after
the applicability date for appointment wait time standards. We clarify
that States can comply with Sec. 438.68(f) sooner than the first
rating period for contracts with MCOs, PIHPs, or PAHPs beginning on or
after 4 years after the effective date of the rule and we encourage
them to do so, particularly for surveys of provider directory data
accuracy. We considered all of the access provisions in the final rule
and have chosen applicability dates for each provision that balance the
needs of enrollees with the level of effort necessary to effectively
implement each one. We believe finalizing the applicability date as the
first rating period for contracts with MCOs, PIHPs, or PAHPs beginning
on or after 4 years after the effective date of the final rule is
appropriate for Sec. 438.68(f).
Comment: A few commenters stated that dually eligible individuals
must navigate multiple provider networks and directories with Medicare
serving as the primary payer of most services for which the secret
shopper survey will evaluate appointment availability. These commenters
recommended that secret shopper surveys for integrated D-SNPs should
account for Medicare as a primary payer for many of the services
evaluated in the survey and the challenges due to misalignment of
provider networks.
Response: We clarify that network adequacy standards and any
associated secret shopper surveys only apply for services for which the
Medicaid managed care plan is the primary payer. Section 438.68(e) and
(f) do not apply for services for which Traditional Medicare, a D-SNP,
or another Medicare Advantage plan has primary responsibility for
dually eligible Medicaid managed care plan enrollees.
[[Page 41023]]
Comment: A few commenters stated that many States already do some
form of secret shopper surveys and requested CMS to clarify if existing
secret shopper surveys will meet the requirements of Sec. 438.68(f).
Response: It is possible that States' existing secret shopper
surveys may satisfy the requirements of Sec. 438.68(f); however, that
is an assessment that each State would have to make by evaluating each
existing survey's content and methodology to ensure that it complies
with all requirements in Sec. 438.68(f).
Comment: Some commenters recommended that CMS prohibit duplicative
or multiple provider surveys. If CMS finalizes the requirement for
States to utilize secret shopper surveys to determine timely access
compliance, these commenters believe potential duplication must be
addressed to prevent over burdening providers' staff and detracting
from the time they have available to take actual patients' phone calls.
Response: We understand the commenters' concern and agree that
States should make every effort to supply provider data to their survey
entities that does not generate repeated calls to the same provider for
multiple managed care plans. We acknowledge this may not always be
possible in small geographic areas or areas with few providers.
However, as Sec. 438.68(f)(4)(iii) only requires a statistically valid
sample of providers be included in each survey, we believe that the
level of repeat calls to the same provider will be minimal.
Comment: We received many comments on our proposal that managed
care plans must meet a 90 percent compliance threshold. Some commenters
noted that they believe that 90 percent will likely prove exceedingly
difficult to attain, particularly given the national shortages of
providers of certain services and in certain geographic areas. These
commenters recommended that CMS adopt a lower percentage in initial
years and then adjust it as plans and providers acclimate to the new
standards; suggestions included compliance rates from 50 percent to 75
percent. Other commenters supported a 90 percent compliance rate
believing that it was appropriate for access to the services proposed.
Some commenters also stated that aligning with FFM standards was
effective and efficient given the high overlap of managed care plans
between Medicaid and the FFMs.
Response: We acknowledge that achieving a 90 percent compliance
rate is a high standard, but we believe that as we are finalizing
appointment wait time standards for only four types of services
(primary care, OB/GYN, mental health and SUD, and a State chosen one),
three of which are the most commonly used on a frequent and repetitive
basis, we believe it is critically important that managed care plans
have robust networks for these services with sufficient capacity to
provide timely appointments to meet the needs of the plan's enrollees.
Additionally, as commenters noted, there is a high overlap of managed
care plans between Medicaid and the FFMs, so efficiencies are likely
achievable that will aid in meeting requirements for both products.
Additionally, we intentionally proposed an applicability date for
secret shopper surveys in Sec. 438.68(f)(2) that was 1 year after the
applicability date for appointment wait time standards in Sec.
438.68(e)(1) to give managed care plans time to ensure that their
networks are able to meet established standards. Given the importance
for enrollees to be able to access routine appointments for the
required services in a timely manner, we are finalizing a 90 percent
compliance rate in Sec. 438.68(e)(2).
Comment: A few commenters recommended a range of revisions to Sec.
438.68(f) including adding additional services or all plan covered
services to the secret shopper survey requirement. Other commenters
suggested additional fields for surveys of provider directory data. One
commenter recommended that CMS allow State-derived studies to continue
which focus on key areas based on State needs instead of specifying
provider types and directory fields.
Response: We believe that it is important to consistently focus the
requirements for appointment wait time standards and secret shopper on
the same provider and service types. This will enable coordinated and
focused approaches and strategies. We believe it prudent to start with
a core set of the most used services and let States and managed care
plans evaluate and refine their network management activities to ensure
appropriate access rather than be overly broad and dilute the impact of
their efforts. After reviewing secret shopper survey data, we may
include additional services in Sec. 438.68(e)(1) in future rulemaking.
Comment: A few commenters stated that conducting annual studies of
appointment availability for the same services does not allow
initiatives based on the previous year's results to be implemented and
assessed for effectiveness before the next study is done. A few
commenters also stated that requiring an annual secret shopper survey
does not consider seasonality.
Response: We acknowledge that not all areas for improvement
identified in a secret shopper survey can be remedied within a year, as
we reflected in Sec. 438.207(f)(2). However, there are some that can
be and conducting an annual secret shopper survey enables timely
reporting of the results of managed care plans' successful efforts to
improve access. To the comment on the impact of seasonality on secret
shopper results, we acknowledge that some provider types are more
impacted by seasonal fluctuations in appointment requests than others.
We believe States can take that into consideration when they schedule
their secret shopper surveys and, if done consistently from year to
year, the impact should be consistent and not disproportionate.
Comment: A few commenters recommended that CMS make clear to States
that the secret shopper surveys are to be used to collect the
information proposed in this rule only and not use them to collect and
make public any information about reproductive health care services.
Response: We confirm that the secret shopper surveys required at
Sec. 438.68(f) are to be used to collect information within the scope
and intent of this final rule and not used to collect any other
information or make public information beyond information on the
performance of MCOs, PIHPs, and PAHPs in meeting wait time standards.
Comment: Some commenters recommended that CMS clarify whether the
secret shopper survey requires that appointments be offered by a
specific provider or by any provider in the practice that is in the
managed care plan's network. For example, if a patient wants an
appointment and a specific provider does not have availability but
other comparable providers in the practice do, an appointment with
another provider should be counted as meeting the appointment wait time
standard. One commenter contended that secret shopper surveys are not
the best tool to identify providers that do not see Medicaid enrollees
(despite being in a plan's directory) or see only a minimal number.
This commenter recommended using what the commenter believes were more
productive approaches such as claims data analysis to identify
providers in directories that do not bill Medicaid, analysis of hours
authorized in a treatment plan versus hours of services delivered and
analyzing direct feedback from members.
Response: We appreciate commenters raising this issue and giving us
the opportunity to clarify our intent. We did not specify that the
appointment wait
[[Page 41024]]
time standard had to be met by the specific provider in the directory,
but rather that a routine appointment for primary care services, OB/GYN
services, mental health and SUD services, and the State-chosen service
type must be offered within established timeframes. We understand that
while a specific provider may be listed in the directory, that provider
may not have availability when an appointment is requested. Our goal
with the initial implementation of the appointment wait time standards
and secret shopper surveys is to determine if enrollees can access care
when they request it. As such, we believe that being offered an
appointment by any provider in a practice is sufficient for determining
compliance with appointment wait time standards.
However, we want to clarify that when verifying the accuracy of
provider directory data, secret shopper surveys must verify the
published information. Meaning, if the provider directory lists Dr. X,
then the active network status, address, phone number, and open panel
status for Dr. X must be verified; a directory reflecting accurate
information for other providers in the same practice is not sufficient
for Dr. X's data to be considered ``accurate'' for compliance with
Sec. 438.68(f)(1)(ii). In the proposed rule preamble, we acknowledged
the issue of providers being listed in managed care plan directories
but delivering little or no care for Medicaid enrollees (88 FR 28101).
This issue could be addressed in secret shopper surveys of appointment
wait times and we encourage States to build their surveys to include
this level of detail. However, we did not specifically require this in
Sec. 438.68(f) as we believe secret shopper surveys that verify
provider directory data will capture this information. We believe there
are efficiencies that can be utilized between the appointment wait time
and provider directory data surveys, such as by requesting an
appointment and verifying the information in 438.68(f)(ii) in the same
call to a provider, that will reflect a more robust and accurate
picture of access to providers listed in managed care plans' provider
directories. We agree with the commenter's suggestions for other
methods that can be used to validate network providers' availability
and utilization to ensure that they are ``active'' network providers.
However, we believe the commenters' suggestions should be used in
addition to the secret shopper surveys to further refine and
contextualize the secret shopper results.
Comment: Some commenters recommended that CMS require the entity
conducting the secret shopper surveys and States to send the applicable
information on provider directory data errors on a schedule other than
the proposed 3-business days. Suggestions ranged from 6 days to
monthly. One commenter recommended that CMS consider an approach that
allows States to receive and report managed care plan errors in an
aggregate or summarized form on a quarterly basis in addition to an
individual 6-day communication to managed care plans. One commenter
recommended that States be permitted to select their own timeframe for
when data would be sent to managed care plans. One commenter suggested
that managed care plans should be given a seven-day grace period to
correct directory data errors before it is counted against their final
accuracy rate.
Response: We appreciate the range of comments on our proposals in
Sec. 438.68(f)(1)(iii) and (iv) on the timeframes for directory data
identified in secret shopper surveys to be sent to States and managed
care plans. As we stated in the proposed rule preamble, inaccuracies in
the information subject to a secret shopper survey can have a
tremendously detrimental effect on enrollees' ability to access care
since finding providers that are not in the managed care plan's
network, have inaccurate addresses and phone numbers, or finding
providers that are not accepting new patients listed in a plan's
directory can delay their ability to contact a network provider that
can provide care (88 FR 28102). We acknowledge that 3 business days is
a fast turnaround time but we believe it's reasonable given that: (1)
the information from the survey vendor will be transmitted
electronically; (2) we explicitly stated that States could delegate the
function of forwarding the information to the managed care plans to the
entity conducting the secret shopper surveys so that the State and
managed care plans receive the information at the same time; and (3)
given that the applicability date for secret shopper surveys is the
first rating period for MCOs, PIHPs, or PAHPs that begins on or after 4
years after the effective date of the rule, States and managed care
plans have ample time to establish processes for this data exchange. We
do not agree with the commenter that managed care plans should have a
grace period in which to make corrections before the error is counted.
The point of using secret shopper surveys is to assess enrollees'
experience when they utilize a plan's provider directory; therefore,
not calculating an accurate error rate undermines the goal of the
survey.
Comment: A few commenters stated that 3 business days was not
sufficient time for managed care plans to make corrections to
inaccurate directory data.
Response: We appreciate commenters raising this concern as it seems
the preamble may have been unclear on this issue to some readers.
Section 438.68(f)(1)(iii) specifies that States must receive
information on errors in directory data identified in secret shopper
surveys no later than 3 business days from the day the error is
identified. Section 438.68(f)(1)(iv) requires States to send that
information to the applicable managed care plan no later than 3
business days from receipt. As such, the 3 business day timeframes are
for data transmission, not correction of the erroneous data. Section
438.10(h)(3)(iii) specifies that managed care plans must use the
information received from the State to update provider directories no
later than the timeframes specified in Sec. 438.10(h)(3)(i) and (ii)
and included in separate CHIP regulations through an existing cross-
reference at Sec. 457.1207.
Comment: Some commenters opposed requiring secret shopper surveys
and stated that utilizing secret shopper surveys requires significant
State resources to contract with third party survey organizations,
provide limited accuracy, and ultimately are not a meaningful way of
advancing the goal of directory accuracy. A few commenters stated that
secret shopper surveys are not effective for addressing the root causes
of access issues and cause provider burden and dissatisfaction. One
commenter believed that the burden would be particularly apparent for
behavioral health providers, who often operate small businesses
independently without staffing support. One commenter recommended just
collecting attestations from plans, consistent with the approach in the
2024 Notice of Benefit and Payment Parameters final rule for QHPs on
the FFMs.
Response: We understand commenters' concerns. However, despite
existing regulations on network adequacy and access in Sec. Sec.
438.68 and 438.206 and monitoring and reporting requirements in
Sec. Sec. 438.66 and 438.207, we continue to hear from enrollees and
other interested parties that managed care plan networks do not provide
access to covered services that meets the needs of covered populations.
As we noted in the proposed rule preamble, external studies document
findings that suggest that current network adequacy standards might not
reflect actual access
[[Page 41025]]
and that new methods are needed that account for physicians'
willingness to serve Medicaid patients. Additionally, 34 audit studies
demonstrated that Medicaid is associated with a 1.6-fold lower
likelihood in successfully scheduling a primary care appointment (88 FR
28098). We believe that proactive steps are necessary to address areas
that need improvement, and we believe provisions in this final rule,
including requirements for secret shopper surveys to assess the
accuracy of provider directory data and compliance with appointment
wait time standards, are an important first step. The use of secret
shopper surveys is consistent with the proposed requirements for QHPs
on the FFMs as specified in the 2025 Draft Letter to Issuers in the
Federally-facilitated Exchanges.\40\
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\40\ <a href="https://www.cms.gov/files/document/2025-draft-letter-issuers-11-15-2023.pdf">https://www.cms.gov/files/document/2025-draft-letter-issuers-11-15-2023.pdf</a>.
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Comment: We received a wide range of comments and suggestions on
the methodology for secret shopper surveys including: entities
conducting secret shopper surveys need to be equipped with the same
information that a Medicaid enrollee would have including Medicaid
program name, plan name, member ID number, and date of birth; much of
the value of a secret shopper survey depends on how a question is
worded and requested; familiarity of office scheduling staff with
secret shopper surveys- particularly when surveyors are unable to
provide necessary information indicating they are real patients; and
survey questions may need to account for factors such as providers that
generally rely on electronic rather than telephone appointments.
Response: We appreciate the many comments that shared valuable
input on secret shopper survey methodologies. We encourage States to
consider these and collaborate with the survey entity when designing
their surveys. We encourage States to consider providing sufficient
details to their survey entity such as a verifiable Medicaid ID number
to enable them to respond to requests for such information.
Comment: One commenter noted that given the mandatory nature of
EQRO provider data validation activities Sec. 438.358(b)(1)(iv), it is
unclear how the proposed secret shopper survey will add any value to
the existing policy framework or is not duplicative of existing
processes. The commenter recommended that CMS require States to
administer the CAHPS[supreg] survey which includes questions focused on
appointment availability and access to care to prevent secret shopper
surveys outside of CAHPS[supreg] inadvertently negatively impacting
CAHPS[supreg] results due to duplicative data collection, different
survey methodologies, and inconsistent results across different surveys
measuring appointment availability.
Response: We do not agree that secret shopper surveys would be
duplicative of provider data validation activities in Sec.
438.358(b)(1)(iv). As stated in the CMS EQR Protocols published in
February 2023,\41\ the activities in protocol 4 include validating the
data and methods used by managed care plans to assess network adequacy,
validating the results and generating a validation rating, and
reporting the validation findings in the annual EQR technical report.
These activities are different than the secret shopper surveys
finalized in Sec. 438.68(f) which will verify appointment access and
the accuracy of directory data directly with a provider's office. We
are unclear why the commenter noted their belief that secret shopper
surveys outside of CAHPS[supreg] could inadvertently negatively impact
CAHPS[supreg] results due to duplicative data collection, different
survey methodologies, and inconsistent results. We acknowledge that no
single tool to measure access is perfect, which is why the managed care
regulations in 42 CFR part 438 require multiple tools that will provide
a more comprehensive and contextualized view of access for each
program.
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\41\ <a href="https://www.medicaid.gov/medicaid/quality-of-care/medicaid-managed-care/quality-of-care-external-quality-review/index.html">https://www.medicaid.gov/medicaid/quality-of-care/medicaid-managed-care/quality-of-care-external-quality-review/index.html</a>.
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Comment: Many commenters supported posting the results of secret
shopper surveys on States' websites and noted it will help individual
patients and patient advocates better understand if there are
individual or systemic issues. Some commenters appreciated our
requiring that the results of secret shopper surveys be included in the
NAAAR as that will make it easier to locate and provide context for the
other network adequacy information in the report. A few commenters
suggested that States' NAAARs also be posted on <a href="http://Medicaid.gov">Medicaid.gov</a>.
Response: We believe that reporting secret shopper survey results
in the NAAAR is a logical and low burden option for States and will
provide a consistent place for interested parties to locate them. We
appreciate the suggestion to also include States' NAAARs on
<a href="http://Medicaid.gov">Medicaid.gov</a>. Currently, there are challenges with producing the MCPAR
and NAAAR as documents that are compliant with sections 504 and 508 of
the Rehabilitation Act; thus, they cannot currently be posted on
<a href="http://Medicaid.gov">Medicaid.gov</a>. Efforts are underway to resolve these issues for MCPARs
which are collected through the web-based portal, and we expect that
when we are collecting NAAARs through a web-based portal, we will be
able to resolve the current formatting challenges to produce compliant
documents that can be posted.
Comment: A few commenters recommended that CMS not implement secret
shopper surveys pending further decisions on development of a National
Directory of Healthcare Providers and Services, the subject of a CMS
request for information released in October 2022. These commenters
stated that using a national directory to validate provider data would
greatly reduce duplicative calls to providers that participate in
multiple managed care plans and lessen burden on providers.
Response: We acknowledge that work on the National Directory of
Healthcare Providers and Services is ongoing. We agree that if or when
a national directory is available, there likely will be efficiencies
that can be leveraged to lessen burden on providers and States.
However, we believe that inaccurate directory data has been an issue
for too long and has a great impact on access; as such, we do not agree
that delaying the secret shopper requirement in Sec. 438.68(f)(1) is
appropriate.
Comment: One commenter requested clarification on how the proposed
wait time standards interact with services that States ``carve out'' of
managed care plan contracts (that is, services delivered in FFS) and
requested that CMS issue guidance to ensure secret shopper surveys only
assess compliance with appointment wait times for covered services.
Response: As specified in Sec. 438.68(e)(1)(i) through (iii),
appointment wait time standards must be established for routine
appointments if the required services are covered by the managed care
plan's contract. To make this clear, we explicitly include ``If covered
in the MCO's, PIHP's, or PAHP's contract,[. . .]'' in paragraphs
(e)(1)(i) through (iii). Therefore, secret shopper surveys must not
include services that are not covered in a managed care plan's
contract.
Comment: Some commenters supported our proposal to only count
telehealth appointments toward wait time standards if the provider also
offered in-person appointments. One commenter noted that telehealth
should not replace in-person care, as there are some significant equity
concerns and telehealth is not a one-size-fits-all solution. Many other
commenters stated that all telehealth appointments should
[[Page 41026]]
be counted towards a plan's compliance rate and that this is especially
important for mental health and SUD appointments. Other commenters
recommended that CMS adopt the ten percent credit toward a plan's
compliance rate as is used by Medicare Advantage. A few commenters
recommended that States be permitted to determine how much telehealth
appointments should be counted toward a plan's compliance score.
Response: We thank commenters for their comments on this important
aspect of secret shopper surveys. As we stated in the preamble, we
acknowledge the importance of telehealth, particularly for mental
health and SUD services. However, we do not believe that managed care
plans should be able to provide services via telehealth only. Managed
care encounter data in T-MSIS reflects that most care is still provided
in-person and that use of telehealth has quickly returned to near pre-
pandemic levels. We believe limiting the counting of telehealth visits
to meet appointment wait time standards, as well as the segregation of
telehealth and in-person appointment data, is the correct approach to
use. While increased reliance on telehealth can and should be part of
the solution to address access deficiencies and used to address a
network adequacy or access issue for a limited time, it should be used
in concert with other efforts and strategies to address the underlying
access issue. We do not believe that relying solely on telehealth is an
appropriate way to meet all enrollees' care needs in the long term. We
will monitor information over time, such as encounter data, secret
shopper survey results, MCPAR submissions, and NAAAR submissions to
inform potential future revisions to Sec. 438.68(f)(2)(ii). We do not
believe adopting Medicare Advantage's ten-percentage point credit
methodology would be appropriate as it is designed to apply to time and
distance standards--which are substantially different than appointment
wait time standards.
Comment: One commenter recommended that CMS require that
appointment wait time data evaluations be disaggregated by key social,
demographic, and geographic variables to identify and address any
access discrepancies for specific subpopulations.
Response: We decline to add these additional requirements on secret
shopper survey results in this final rule; however, we believe data
disaggregated as suggested by the commenter could provide States with
valuable information about their programs. We encourage States to
consider these suggestions as they develop their surveys.
After reviewing the public comments, we are finalizing Sec. Sec.
438.68(f), 457.1207, and 457.1218 as proposed.
d. Assurances of Adequate Capacity and Services--Provider Payment
Analysis (Sec. Sec. 438.207(b) and 457.1230(b))
We believe there needs to be greater transparency in Medicaid and
CHIP provider payment rates for States and CMS to monitor and mitigate
payment-related access barriers. There is considerable evidence that
Medicaid payment rates, on average, are lower than Medicare and
commercial rates for the same services and that provider payment
influences access, with low rates of payment limiting the network of
providers willing to accept Medicaid patients, capacity of those
providers who do participate in Medicaid, and investments in emerging
technology among providers that serve large numbers of Medicaid
beneficiaries. However, there is no standardized, comprehensive, cross-
State comparative data source available to assess Medicaid and CHIP
payment rates across clinical specialties, managed care plans, and
States. Given that a critical component of building a managed care plan
network is payment, low payment rates can harm access to care for
Medicaid and CHIP enrollees in multiple ways. Evidence suggests that
low Medicaid physician fees limit physicians' participation in the
program, particularly for behavioral health and primary care
providers.<SUP>42 43</SUP> Relatedly, researchers have found that
increases in the Medicaid payment rates are directly associated with
increases in provider acceptance of new Medicaid patients. In short,
two key drivers of access--provider network size and capacity--are
inextricably linked with Medicaid provider payment levels and
acceptance of new Medicaid patients.<SUP>44 45</SUP> While many factors
affect provider participation, given the important role that payment
rates play in assuring access, greater transparency is needed to
understand when and to what extent provider payment may influence
access in State Medicaid and CHIP programs to specific provider types
or for Medicaid and CHIP beneficiaries enrolled in specific plans.
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\42\ Holgash K, Heberlein M. Physician acceptance of new
Medicaid patients. Washington (DC): Medicaid and CHIP Payment and
Access Commission; 2019 Jan 24. Available from <a href="https://www.macpac.gov/wp-content/uploads/2019/01/Physician-Acceptance-of-New-Medicaid-Patients.pdf">https://www.macpac.gov/wp-content/uploads/2019/01/Physician-Acceptance-of-New-Medicaid-Patients.pdf</a>.
\43\ Zuckerman S, Skopec L, and Aarons J. Medicaid Physician
Fees Remained Substantially Below Fees Paid by Medicare in 2019.
Health Aff (Millwood). 2021;40(2). doi:10.1377/hlthaff.2020.00611.
\44\ National Bureau of Economic Research, ``Increased Medicaid
Reimbursement Rates Expand Access to Care,'' October 2019, available
at <a href="https://www.nber.org/bh-20193/increased-medicaid-reimbursement-rates-expand-access-care">https://www.nber.org/bh-20193/increased-medicaid-reimbursement-rates-expand-access-care</a>.
\45\ Zuckerman S, Skopec L, and Aarons J. Medicaid Physician
Fees Remained Substantially Below Fees Paid by Medicare in 2019.
Health Aff (Millwood). 2021;40(2). doi:10.1377/hlthaff.2020.00611.
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We also believe that greater transparency and oversight is
warranted as managed care payments have grown significantly as a share
of total Medicaid payments; in FY 2021, the Federal government spent
nearly $250 billion on payments to managed care plans.\46\ With this
growth, we seek to develop, use, and facilitate State use of data to
generate insights into important, provider rate related indicators of
access. Unlike FFS Medicaid and CHIP programs, managed care plans
generally have the ability to negotiate unique reimbursment rates for
individual providers. Generally, unless imposed by States through a
State-directed payment or mandated by statute (such as Federally
qualified health center (FQHC) payment requirements established under
section 1902(bb) of the Act), there are no Federal regulatory or
statutory minimum or maximum limits on the payment rates a managed care
plan can negotiate with a network provider. As such, there can be
tremendous variation among plans' payment rates, and we often do not
have sufficient visibility into those rates to perform analyses that
will promote a better understanding of how these rates are impacting
access. Section 438.242(c)(3) for Medicaid, and through cross-reference
at Sec. 457.1233(d) for separate CHIP, requires managed care plans to
submit to the State all enrollee encounter data, including allowed
amounts and paid amounts, that the State is required to report to us.
States are then required to submit those data to T-MSIS as required in
Sec. 438.818 for Medicaid, and through cross-reference at Sec.
457.1233(d) for separate CHIP. However, variation in the quantity and
quality of T-MSIS data, particularly for data on paid amounts, remains.
We believe that provider payment rates in managed care are inextricably
linked with provider network sufficiency and capacity and proposed a
process through which managed care plans must report, and States must
review and analyze, managed care payment rates to
[[Page 41027]]
providers as a component of States' responsibility to ensure network
adequacy and enrollee access consistent with State and Federal
standards. Linking payment levels to quality of care is consistent with
a strategy that we endorsed in our August 22, 2022 CIB \47\ urging
States to link Medicaid payments to quality measures to improve the
safety and quality of care.
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\46\ Congressional Budget Office, ``Baseline Projections--
Medicaid,'' May 2022, available at <a href="https://www.cbo.gov/system/files/2022-05/51301-2022-05-medicaid.pdf">https://www.cbo.gov/system/files/2022-05/51301-2022-05-medicaid.pdf</a>.
\47\ <a href="https://www.medicaid.gov/federal-policy-guidance/downloads/cib08222022.pdf">https://www.medicaid.gov/federal-policy-guidance/downloads/cib08222022.pdf</a>.
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To ensure comparability in managed care plans' payment analyses, in
our May 3, 2023 proposed rule, we proposed to require a payment
analysis that managed care plans would submit to States per Sec.
438.207(b)(3) and States would be required to review and include in the
assurance and analysis to CMS per Sec. 438.207(d). Specifically, we
proposed to replace the periods at the end of Sec. 438.207(b)(1) and
(2) with semi-colons and add ``and'' after Sec. 438.207(b)(2) to make
clear that (b)(1) through (3) will all be required for Medicaid managed
care, and for separate CHIP through an existing cross-reference at
Sec. 457.1230(b).
At Sec. 438.207(b)(3) for Medicaid, and for separate CHIP through
an existing cross-reference at Sec. 457.1230(b), we proposed to
require that MCOs, PIHPs, and PAHPs submit annual documentation to the
State that demonstrates a payment analysis showing their level of
payment for certain services, if covered by the managed care plan's
contract. We proposed that the analysis use paid claims data from the
immediate prior rating period to ensure that all payments are captured,
including those that are negotiated differently than a plan's usual fee
schedule. We also believe that using claims data ensures that
utilization is considered to prevent extremely high or low payments
from inappropriately skewing the results. We acknowledged that paid
claims data will likely not be complete within 180 days of the end of a
rating period, which is when this analyis is proposed to be reported by
the State in Sec. 438.207(d)(3)(ii). However, we believe that the data
are sufficiently robust to produce a reasonable percentage that
reflects an appropriate weighting to each payment based on actual
utilization and could be provided to the State far enough in advance of
the State submitting its reporting to CMS to be incorporated. We
believe this analysis of payments provides States and CMS with vital
information to assess the adequacy of payments to providers in managed
care programs, particularly when network deficiencies or quality of
care issues are identified or grievances are filed by enrollees
regarding access or quality.
In Sec. 438.207(b)(3)(i) for Medicaid, and for separate CHIP
through an existing cross-reference at Sec. 457.1230(b), we proposed
to require each MCO, PIHP, and PAHP to use paid claims data from the
immediate prior rating period to determine the total amount paid for
evaluation and management current procedural terminology (CPT) codes
for primary care, OB/GYN, mental health, and SUD services. Due to the
unique payment requirements in section 1902(bb) of the Act for FQHCs
and rural health clinics (RHCs), we proposed in Sec. 438.207(b)(3)(iv)
to exclude these provider types from the analysis. We further proposed
that this analysis provide the percentage that results from dividing
the total amount the managed care plan paid by the published Medicare
payment rate for the same codes on the same claims. Meaning, the
payment analysis will reflect the comparison of how much the managed
care plan paid for the evaluation and managment CPT codes to the
published Medicare payment rates including claim-specific factors such
as provider type, geographic location where the service was rendered,
and the site of service. In Sec. 438.207(b)(3)(i)(A) for Medicaid, and
for separate CHIP through an existing cross-reference at Sec.
457.1230(b), we also proposed that the plans will include in the
analysis separate total amounts paid and separate comparison
percentages to Medicare for primary care, OB/GYN, mental health, and
substance use disorder services for ease of analysis and clarity.
Lastly in Sec. 438.207(b)(3)(i)(B) for Medicaid, and for separate CHIP
through an existing cross-reference at Sec. 457.1230(b), we proposed
that the percentages be reported separately if they differ between
adult and pediatric services. We believe the proposals in Sec.
438.207(b)(3)(i)(A) and (B) would ensure sufficient detail in the data
to enable more granular analysis across plans and States, as well as to
prevent some data from obscuring issues with other data. For example,
if payments for adult primary care are significantly lower than
pediatric primary care, providing separate totals and comparison
percentages will prevent the pediatric data from artificially inflating
the adult totals and percentages. We believe this level of detail will
be necessary to prevent misinterpretation of the data.
We proposed in Sec. 438.207(b)(3)(ii) for Medicaid, and for
separate CHIP through an existing cross-reference at Sec. 457.1230(b),
to require that the payment analysis provide the total amounts paid for
homemaker services, home health aide services, and personal care
services and the percentages that results from dividing the total
amount paid by the amount the State's Medicaid or CHIP FFS program
would have paid for the same claims. We proposed two differences
between this analysis and the analysis in Sec. 438.207(b)(3)(i):
first, this analysis will use all codes for the services as there are
no evaluation and management CPT codes for these LTSS; and second, we
proposed the comparison be to Medicaid or CHIP FFS payment rates, as
applicable, due to the lack of comparable Medicare rates for these
services. We proposed these three services as we believe these have
high impact to help keep enrollees safely in the community and avoid
institutionalization. Again, we believe this analysis of payment rates
will be important to provide States and CMS with information to assess
the adequacy of payments to providers in managed care programs,
particularly when enrollees have grievances with services approved in
their care plans not being delivered or not delivered in the authorized
quantity. We requested comment on whether in-home habilitation services
provided to enrollees with I/DD should be added to this analysis.
We believe that managed care plans could perform the analyses in
Sec. 438.207(b)(3)(i) and (ii) by: (1) Identifying paid claims in the
prior rating period for each required service type; (2) identifying the
appropriate codes and aggregating the payment amounts for the required
service types; and (3) calculating the total amount that will be paid
for the same codes on the claims at 100 percent of the appropriate
published Medicare rate, or Medicaid/CHIP FFS rate for the analysis in
Sec. 438.207(b)(3)(ii), applicable on the date of service. For the
aggregate percentage, divide the total amount paid (from (2) above) by
the amount for the same claims at 100 percent of the appropriate
published Medicare rate or Medicaid/CHIP FFS, as appropriate (from (3)
above). We believe this analysis would require a manageable number of
calculations using data readily available to managed care plans.
To ensure that the payment analysis proposed in Sec. 438.207(b)(3)
is appropriate and meaningful, we proposed at paragraph (b)(3)(iii) for
Medicaid, and for separate CHIP through an existing cross-reference at
Sec. 457.1230(b), to exclude payments for claims for the services in
paragraph (b)(3)(i) for which the managed care
[[Page 41028]]
plan is not the primary payer. A comparison to payment for cost sharing
only or payment for a claim for which another payer paid a portion will
provide little, if any, useful information.
The payment analysis proposed at Sec. 438.207(b)(3) is authorized
by sections 1932(c)(1)(A)(ii) and 2103(f)(3) of the Act, which requires
States' quality strategies to include an examination of other aspects
of care and service directly related to the improvement of quality of
care. The authority for our proposals is extended to PIHPs and PAHPs
through regulations based on our authority under section 1902(a)(4) of
the Act. Because the proposed payment analysis will generate data on
each managed care plan's payment levels for certain provider types as a
percent of Medicare or Medicaid FFS rates, States could use the
analysis in their examination of other aspects of care and service
directly related to the improvement of quality of care, particularly
access. Further, sections 1932(c)(1)(A)(iii) and 2103(f)(3) of the Act
authorize the proposals in this section of this final rule as enabling
States to compare payment data among managed care plans in their
program, which could provide useful data to fulfill their obligations
for monitoring and evaluating quality and appropriateness of care.
We also proposed to revise Sec. 438.207(g) to reflect that managed
care plans will have to comply with Sec. 438.207(b)(3) no later than
the first rating period that begins on or after 2 years after the
effective date of the final rule as we believe this is a reasonable
timeframe for compliance.
We summarize and respond to public comments received on Assurances
of adequate capacity and services--Provider payment analysis
(Sec. Sec. 438.207(b) and 457.1230(b)) below.
Comment: Many commenters supported our proposal for a managed care
plan payment analysis in Sec. 438.207(b)(3). Commenters noted they
believe it will provide greater insight into how Medicaid provider
payment levels affect access to care. One commenter stated that it was
abundantly clear that low provider payment rates harm Medicaid
beneficiaries, as they limit provider participation. Some commenters
stated the payment analysis can contribute to identifying and
redressing gaps in access. One commenter stated that Medicaid FFS and
Medicare rates are a matter of public knowledge and the rates paid by
managed care plans should be as well.
Response: We agree that managed care programs should have
comparable transparency on provider payment to Medicaid and CHIP FFS
programs and the analysis finalized at Sec. 438.207(b)(3) for
Medicaid, and for separate CHIP through an existing cross-reference at
Sec. 457.1230(b) is an important step. We acknowledge an oversight in
the wording of Sec. 438.207(b)(3)(i) in the proposed regulation text.
The preamble noted how the necessary calculations could be produced and
included ``For the aggregate percentage, divide the total amount paid
(from 2. above) by the amount for the same claims at 100 percent of the
appropriate published Medicare rate or Medicaid/CHIP FFS, as
appropriate (from 3. Above).'' (88 FR 28105) Unfortunately, ``amount
paid by the'' was erroneously omitted in (b)(3)(i) so that the sentence
did not reflect the two components needed to produce a percentage. To
correct this, we are finalizing Sec. 438.207(b)(3)(i) to state that
the payment analysis must provide the total amount paid for evaluation
and management CPT codes in the paid claims data from the prior rating
period for primary care, OB/GYN, mental health, and substance use
disorder services, as well as the percentage that results from dividing
the total amount paid by the published Medicare payment rate for the
same services.
Comment: Many commenters did not support our proposal for a managed
care plan payment analysis in Sec. 438.207(b)(3). A few commenters
stated that CMS should rely on States to work with their contracted
managed care plans in evaluating which factors they believe are most
relevant to access in their specific areas, and in determining what
types of comparative data (whether it is payment information or other
metrics) would be most useful and cost effective for such evaluations.
Some commenters were concerned that the comparison CMS is requesting
will be misleading, statistically invalid, present an incomplete
narrative on provider payment, and will dissuade participation by
providers in the Medicaid program which is contrary to CMS's stated
goals. Commenters believe that comparing payment on a per code level is
likely to result in a volume of information that is overwhelming for a
member of the general public and unlikely to yield information that is
beneficial.
Response: We understand why St
[…truncated; see source link]Indexed from Federal Register on May 10, 2024.
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