Rule2024-08363
Medicaid Program; Ensuring Access to Medicaid Services
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 takes a comprehensive approach to improving access to care, quality and health outcomes, and better addressing health equity issues in the Medicaid program across fee-for-service (FFS), managed care delivery systems, and in home and community-based services (HCBS) programs. These improvements increase transparency and accountability, standardize data and monitoring, and create opportunities for States to promote active beneficiary engagement in their Medicaid programs, with the goal of improving access to care.
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[Federal Register Volume 89, Number 92 (Friday, May 10, 2024)]
[Rules and Regulations]
[Pages 40542-40874]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08363]
[[Page 40541]]
Vol. 89
Friday,
No. 92
May 10, 2024
Part II
Department of Health and Human Services
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Centers for Medicare & Medicaid Services
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42 CFR Parts 431, 438, 441, et al.
Medicaid Program; Ensuring Access to Medicaid Services; Final Rule
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and
Regulations
[[Page 40542]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 431, 438, 441, and 447
[CMS-2442-F]
RIN 0938-AU68
Medicaid Program; Ensuring Access to Medicaid Services
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 takes a comprehensive approach to improving
access to care, quality and health outcomes, and better addressing
health equity issues in the Medicaid program across fee-for-service
(FFS), managed care delivery systems, and in home and community-based
services (HCBS) programs. These improvements increase transparency and
accountability, standardize data and monitoring, and create
opportunities for States to promote active beneficiary engagement in
their Medicaid programs, with the goal of improving access to care.
DATES: These regulations are effective on July 9, 2024.
FOR FURTHER INFORMATION CONTACT:
Karen LLanos, (410) 786-9071, for Medicaid Advisory Committee.
Jennifer Bowdoin, (410) 786-8551, for Home and Community-Based
Services.
Jeremy Silanskis, (410) 786-1592, for Fee-for-Service Payment.
SUPPLEMENTARY INFORMATION:
I. Background
A. Overview
Title XIX of the Social Security Act (the Act) established the
Medicaid program as a joint Federal and State program to provide
medical assistance to eligible individuals, including many with low
incomes. Under the Medicaid program, each State that chooses to
participate in the program and receive Federal financial participation
(FFP) for program expenditures must establish eligibility standards,
benefits packages, and payment rates, and undertake program
administration in accordance with Federal statutory and regulatory
requirements. The provisions of each State's Medicaid program are
described in the Medicaid ``State plan'' and, as applicable, related
authorities, such as demonstration projects and waivers of State plan
requirements. Among other responsibilities, CMS approves State plans,
State plan amendments (SPAs), demonstration projects authorized under
section 1115 of the Act, and waivers authorized under section 1915 of
the Act; and reviews expenditures for compliance with Federal Medicaid
law, including the requirements of section 1902(a)(30)(A) of the Act
relating to efficiency, economy, quality of care, and access to ensure
that all applicable Federal requirements are met.
The Medicaid program provides essential health coverage to tens of
millions of people, covering a broad array of health benefits and
services critical to underserved populations,\1\ including low-income
adults, children, parents, pregnant individuals, older adults, and
people with disabilities. For example, Medicaid pays for approximately
41 percent of all births in the U.S.\2\ and is the largest payer of
long-term services and supports (LTSS),\3\ the largest, single payer of
services to treat substance use disorders,\4\ and services to prevent
and treat the Human Immunodeficiency Virus.\5\
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\1\ Executive Order 13985: <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/">https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/</a>.
\2\ National Center for Health Statistics. Key Birth Statistics.
Accessed at <a href="https://www.cdc.gov/nchs/nvss/births.htm">https://www.cdc.gov/nchs/nvss/births.htm</a>.
\3\ Colello, Kirsten J. Who Pays for Long-Term Services and
Supports? Congressional Research Service. Updated September 2023.
Accessed at <a href="https://crsreports.congress.gov/product/pdf/IF/IF10343">https://crsreports.congress.gov/product/pdf/IF/IF10343</a>.
\4\ Soni, Anita. Health Care Expenditures for Treatment of
Mental Disorders: Estimates for Adults Ages 18 and Older, U.S.
Civilian Noninstitutionalized Population, 2019. Statistical Brief
#539, pg 12. February 2022. Agency for Healthcare Research and
Quality, Rockville, MD. Accessed at <a href="https://meps.ahrq.gov/data_files/publications/st539/stat539.pdf">https://meps.ahrq.gov/data_files/publications/st539/stat539.pdf</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>.
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On January 28, 2021, the President signed Executive Order (E.O.)
14009,\6\ ``Strengthening Medicaid and the Affordable Care Act,'' which
established the policy objective to protect and strengthen Medicaid and
the Affordable Care Act and to make high-quality health care accessible
and affordable for every American. The E.O. also directed executive
departments and agencies to review existing regulations, orders,
guidance documents, and policies to determine whether such agency
actions are inconsistent with this policy. On April 5, 2022, E.O.
14070,\7\ ``Continuing To Strengthen Americans' Access to Affordable,
Quality Health Coverage,'' directed Federal 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. Consistent with CMS' authorities under the
Act, this final rule implements E.O.s 14009 and 14070 by helping States
to strengthen Medicaid and improve access to and quality of care
provided.
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\6\ Executive Order 14009: <a href="https://www.federalregister.gov/documents/2021/02/02/2021-02252/strengthening-medicaid-and-the-affordable-care-act">https://www.federalregister.gov/documents/2021/02/02/2021-02252/strengthening-medicaid-and-the-affordable-care-act</a>.
\7\ Executive Order 14070: <a href="https://www.federalregister.gov/documents/2022/04/08/2022-07716/continuing-to-strengthen-americans-access-to-affordable-quality-health-coverage">https://www.federalregister.gov/documents/2022/04/08/2022-07716/continuing-to-strengthen-americans-access-to-affordable-quality-health-coverage</a>.
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Ensuring that beneficiaries can access covered services is
necessary to the basic operation 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, FFS, fully-capitated managed care, partially capitated
managed care, etc.), including through demonstrations and waiver
programs. 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.<SUP>8 9</SUP> The
remaining individuals received all of their care or some services that
have been carved out of managed care through FFS.
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\8\ Medicaid Managed Care Enrollment Report. <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>.
\9\ 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 in 42 CFR 438.2] 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 primary care case management
entities (PCCM entities).
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Current access regulations are neither comprehensive nor consistent
across delivery systems or coverage authority (for example, State plan
and demonstration authority). For example, regulations at 42 CFR
447.203 and 447.204 relating to access to care, service payment rates,
and Medicaid provider participation in rate setting apply only to
Medicaid FFS delivery systems and focus on ensuring that payment rates
are consistent with the statutory requirements in section
1902(a)(30)(A) of the Act. The regulations do not apply to services
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delivered under managed care. These regulations are also largely
procedural in nature and rely heavily on States to form an analysis and
reach conclusions on the sufficiency of their own payment rates.
With a program as large and complex as Medicaid, access regulations
need to be multi-factorial to promote consistent access to health care
for all beneficiaries across all types of care delivery systems in
accordance with statutory requirements. 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
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 the spring of 2022, we released a request for information (RFI)
\10\ 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 Children's Health Insurance Program (CHIP) payments
are sufficient to enlist enough providers.
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\10\ 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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Some of the most common feedback we received through the RFI
related to ways that we can promote health equity through cultural
competency. Commenters shared the importance that cultural competency
plays in how beneficiaries access health care and in the quality of
health services received by beneficiaries. The RFI respondents shared
examples of actions that we could take, including collecting and
analyzing health outcomes data by sociodemographic categories;
establishing minimum standards for how States serve communities in ways
that address cultural competency and language preferences; and reducing
barriers to enrollment and retention for racial and ethnic minority
groups.
In addition to the topic of cultural competency, commenters also
commonly shared that they viewed reimbursement rates as a key driver of
provider participation in Medicaid and CHIP programs. Further,
commenters noted that aligning payment approaches and setting minimum
standards for payment regulations and compliance across Medicaid and
CHIP delivery systems, services, and benefits could help ensure that
beneficiaries' access to services is as similar as possible across
beneficiary groups, delivery systems, and programs.
As mentioned previously in this final rule, 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 know if they are or may be eligible for Medicaid,
be aware of Medicaid coverage options, and be 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 initially. 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, Exchange coverage,
or Medicare, when they are no longer eligible for Medicaid coverage but
have become eligible for other health coverage programs. 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 Renewal
Processes to simplify the processes for eligible individuals to enroll
and retain eligibility in Medicaid, CHIP, and the Basic Health Program
(BHP) (87 FR 54760). This proposed rule was finalized in two parts, the
Streamlining Medicaid; Medicare Savings Program Eligibility
Determination and Enrollment Final Rule (88 FR 65230) and the
Streamlining Eligibility & Enrollment final rule (89 FR 22780).
The third dimension, which is the focus of this final rule, is
access to services and supports. This rule addresses additional
critical elements of access: (1) potential access, which refers to a
beneficiary's access to providers and services, whether or not the
providers or services are used; (2) beneficiary utilization, which
refers to beneficiaries' actual use of the providers and services
available to them; and (3) beneficiaries' perceptions and experiences
with the care they did or were not able to receive. These terms and
definitions build upon previous efforts to examine how best to monitor
access.\11\
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\11\ 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.urban.org/sites/default/files/publication/88081/2001143-medicaid-access-measurement-and-monitoring-plan_0.pdf">https://www.urban.org/sites/default/files/publication/88081/2001143-medicaid-access-measurement-and-monitoring-plan_0.pdf</a>.
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We completed an array of regulatory activities, including three
rules: the aforementioned Streamlining Eligibility & Enrollment final
rules and a final rule entitled Medicaid and Children's Health
Insurance Program (CHIP) Managed Care Access, Finance, and Quality (as
published elsewhere in this issue of the Federal Register, Managed Care
final rule), on managed care including matters of access, and this
final rule on access. Additionally, we are taking non-regulatory
actions to improve beneficiary access to care (for example, best
practices toolkits and technical assistance to States) to improve
access to health care services across Medicaid delivery systems.
As noted earlier, we issued the Streamlining Eligibility &
Enrollment final rules to address the first two dimensions of access to
health care: (1) enrollment in coverage and (2) maintenance of
coverage. Through those final rules, we streamline Medicaid, CHIP and
BHP eligibility and enrollment processes, reduce administrative burden
on States and applicants/enrollees toward a more seamless eligibility
and enrollment process, and increase the enrollment and retention of
eligible individuals.
The Managed Care final rule improves access to care and quality
outcomes for Medicaid and CHIP beneficiaries enrolled in managed care
by: creating standards for timely access to care and States' monitoring
and enforcement efforts; reducing burden for some State directed
payments and certain quality reporting requirements; adding new
standards that will apply when States use in lieu of services and
settings (ILOSs) to promote effective utilization, and specifying the
scope and nature of ILOS; specifying medical loss ratio (MLR)
requirements, and establishing a quality rating system for Medicaid and
CHIP managed care plans.
Through the Managed Care final rule and this final rule (Ensuring
Access to Medicaid Services), we finalize additional requirements to
address the third dimension of the health care access continuum: access
to services. The requirements outlined later in this section focus on
improving access to services in Medicaid by utilizing tools such as FFS
rate transparency,
[[Page 40544]]
standardized reporting for HCBS, and improving the process for
interested parties, especially Medicaid beneficiaries, to provide
feedback to State Medicaid agencies and for Medicaid agencies to
respond to the feedback (also known as a feedback loop).
Through a combination of these four final rules, we address a range
of access-related challenges that impact how beneficiaries are served
by Medicaid across all of its delivery systems. FFP will be available
for expenditures that are necessary to implement the activities States
will need to undertake to comply with the provisions of these final
rules.
Finally, we also believe it is important to acknowledge the role of
health equity within this final rule. Medicaid plays a
disproportionately large role in covering health care for people from
underserved communities in this country.\12\ Consistent with E.O. 13985
on ``Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government (January 20, 2021),'' \13\ which calls
for advancing equity for underserved populations, we are working to
ensure our programs consistently provide high-quality care to all
beneficiaries, and thus advance health equity, consistent with the
goals and objectives we have outlined in the CMS Framework for Health
Equity 2022-2032 \14\ and the HHS Equity Action Plan.\15\ That effort
includes increasing our understanding of the needs of those we serve to
ensure that all individuals have access to equitable coverage and care.
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\12\ Guth, M and Artiga, S. Medicaid and Racial Health Equity
March 2022. Accessed at <a href="https://www.kff.org/medicaid/issue-brief/medicaid-and-racial-health-equity/">https://www.kff.org/medicaid/issue-brief/medicaid-and-racial-health-equity/</a>.
\13\ Executive Order 13985: <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/">https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/</a>.
\14\ CMS Framework for Health Equity 2022-2032: <a href="https://www.cms.gov/files/document/cms-framework-health-equity.pdf">https://www.cms.gov/files/document/cms-framework-health-equity.pdf</a>.
\15\ HHS Equity Action Plan. April 2022. Accessed at <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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We recognize that each State faces a unique set of challenges
related to the resumption of its normal program activities after the
end of the COVID-19 public health emergency (PHE). More specifically,
the expiration of the Medicaid continuous enrollment condition
authorized by the Families First Coronavirus Response Act (FFCRA)
presents the single largest health coverage transition event since the
first open enrollment period of the Affordable Care Act. As a condition
of receiving a temporary 6.2 percentage point Federal Medical
Assistance Percentage (FMAP) increase under the FFCRA, States were
required to maintain enrollment of nearly all Medicaid enrollees. This
continuous enrollment condition expired on March 31, 2023, after which
States began completing renewals for all individuals enrolled in
Medicaid, CHIP, and the BHP. Additionally, many other temporary
authorities adopted by States during the COVID-19 PHE expired at the
end of the PHE, and States are returning to regular operations across
their programs. The resumption of normal Medicaid operations is
generally referred to as ``unwinding'' and the period for States to
initiate all outstanding eligibility actions that were delayed because
of the FFCRA continuous enrollment condition is called the ``unwinding
period.'' We considered States' unwinding responsibilities when
finalizing the dates for States to begin complying with the
requirements being finalized in this rule, but, as noted in the
Ensuring Access to Medicaid Services proposed rule, we solicited State
feedback on whether our proposals struck the correct balance.
We considered adopting an effective date of 60 days following
publication of this final rule and separate compliance dates for
various provisions, which we note where relevant in our discussion of
specific proposals in this final rule. We solicited comment on whether
an effective date of 60 days following publication would be appropriate
when combined with later dates for compliance for some provisions.
We also solicited comment on the timeframe that would be most
achievable and appropriate for compliance with each proposed provision
and whether the compliance date should vary by provision.
B. Medical Care Advisory Committees (MCAC)
We obtained feedback during various public engagement activities
conducted with States and other interested parties, which supports
research findings that the beneficiary perspective and lived Medicaid
experience \16\ should be considered when making policy decisions
related to Medicaid programs.<SUP>17 18</SUP> A 2022 report from the
HHS Assistant Secretary of Planning and Evaluation (ASPE) noted that
including people with lived experience in the policy-making process can
lead to a deeper understanding of the conditions affecting certain
populations, facilitate identification of possible solutions, and avoid
unintended consequences of potential policy or program changes that
could negatively impact the people the program aims to serve.\19\ We
have concluded that beneficiary perspectives need to be central to
operating a high-quality health coverage program that consistently
meets the needs of all its beneficiaries.
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\16\ Lived experience refers to ``representation and
understanding of an individual's human experiences, choices, and
options and how those factors influence one's perception of
knowledge'' based on one's own life. In this context, we refer to
people who have been enrolled in Medicaid currently or in the past.
Accessed at https://aspe.hhs.gov/lived-
experience#:~:text=In%20the%20context%20of%20ASPE%E2%80%99s%20researc
h%2C%20people%20with,programs%20that%20aim%20to%20address%20the%20iss
ue%20%28s%29.
\17\ Zhu JM, Rowland R, Gunn R, Gollust S, Grande DT. Engaging
Consumers in Medicaid Program Design: Strategies from the States.
Milbank Q. 2021 Mar;99(1):99-125. doi: 10.1111/1468-0009.12492. Epub
2020 Dec 15. PMID: 33320389; PMCID: PMC7984666. Accessed at <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7984666/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7984666/</a>.
\18\ Key Findings from the Medicaid MCO Learning Hub Discussion
Group Series and Roundtable--Focus on Member Engagement and the
Consumer Voice. NORC at the University of Chicago. Jan 2021.
Accessed at <a href="https://www.norc.org/PDFs/Medicaid%20Managed%20Care%20Organization%20Learning%20Hub/MMCOLearningHub_MemberEngagement.pdf">https://www.norc.org/PDFs/Medicaid%20Managed%20Care%20Organization%20Learning%20Hub/MMCOLearningHub_MemberEngagement.pdf</a>.
\19\ Syreeta Skelton-Wilson et al., ``Methods and Emerging
Strategies to Engage People with Lived Experience,'' Office of the
Assistant Secretary for Planning and Evaluation (ASPE), U.S.
Department of Health and Human Services, January 4, 2022, <a href="https://aspe.hhs.gov/reports/lived-experience-brief">https://aspe.hhs.gov/reports/lived-experience-brief</a>.
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However, effective community engagement is not as simple as
planning a meeting and requesting feedback. To create opportunities
that facilitate true engagement, it is important to understand and
honor strengths and assets that exist within communities; recognize and
solicit the inclusion of diverse voices; dedicate resources to ensuring
that engagement is done in culturally meaningful ways; ensure
timelines, planning processes, and resources that support equitable
participation; and follow up with communities to let them know how
their input was utilized. Ensuring optimal health outcomes for all
beneficiaries served by a program through the design, implementation,
and operationalization of policies and programs requires intentional
and continuous effort to engage people who have historically been
excluded from the process.
Section 1902(a)(4) of the Act is a longstanding statutory provision
that, as implemented in part in regulations currently codified at 42
CFR 431.12,\20\ requires States to have a Medical Care
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Advisory Committee (MCAC) in place to advise the State Medicaid agency
about health and medical care services. Under section 1903(a)(7) of the
Act, expenditures made by the State agency to operate the MCAC are
eligible for Federal administrative match.
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\20\ The regulatory provision was originally established in 36
FR 3793 at 3870.
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The current MCAC regulations at Sec. 431.12 require States to
establish such a committee and describe high-level requirements related
to the composition of the committee, the scope of topics to be
discussed, and the support the Committee can receive from the State in
its administration. Due to the lack of specificity in the current
regulations, these regulations have not been consistently implemented
across States. For example, there is no mention of how States should
approach meeting periodicity or meeting structure in ways that are
conducive to including a variety of Medicaid interested parties. There
is also no mention in the regulations about how States can build
accountability through transparency with their interested parties by
publicly sharing meeting dates, membership lists, and the outcomes of
these meetings. The regulations also limit the required MCAC
discussions to topics about health and medical care services--which in
turn limits the benefits of using the MCAC as a vehicle that can
provide States with varied ideas, suggestions, and experiences on a
range of issues related to the effective administration of the Medicaid
program.
As such, we have determined the requirements governing MCACs need
to be more robust to ensure all States are using these committees
optimally to realize a more effective and efficient Medicaid program
that is informed by the experiences of beneficiaries, their caretakers,
and other interested parties. The current regulations have been in
place without change for over 40 years.\21\ Over the last four decades,
we have learned that the current MCAC requirements are insufficient in
ensuring that the beneficiary perspective is meaningfully represented
on the MCAC. Recent research regarding soliciting input from
individuals with lived experience, including our recent discussions
with States about their MCAC, provide a unique opportunity to re-
examine the purpose of this committee and update the policies to
reflect four decades of program experience.
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\21\ 43 FR 45091 at 45189.
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In 2022, we gathered feedback from various public engagement
activities conducted with States, other interested parties, and
directly from a subset of State Medicaid agencies that described a wide
variation in how States are operating MCACs today. The feedback
suggested that some MCACs operate simply to meet the broad Federal
requirements. As discussed previously in this section, we have
discovered that our current regulations do not further the statutory
goal of meaningfully engaging Medicaid beneficiaries and other low-
income people in matters related to the operation of the Medicaid
program. Meaningful engagement can help develop relationships and
establish trust between the communities served and the Medicaid agency
to ensure States receive important information concerning how to best
provide health coverage to their beneficiary populations. The current
MCAC regulations establish the importance of broad feedback from
interested parties, but they lack the specificity that can ensure
States use MCACs in ways that facilitate that feedback.
The current regulations require that MCACs must include Medicaid
beneficiaries as committee members. However, the regulations do not
mention or account for the reality that other interested parties can
stifle beneficiary contribution in a group setting. For example, when
there are a small number of beneficiary representatives in large
committees with providers, health plans, and professional advocates, it
can be uncomfortable and intimidating for beneficiaries to share their
perspective and experience. Based on these reasons, several States
already use beneficiary-only groups that feed into larger MCACs.
Improvements to the MCACs are critical to ensuring a robust and
accurate understanding of beneficiaries' challenges to health care
access. The current regulations value State Medicaid agencies having a
way to get feedback from interested parties on issues related to the
Medicaid program. However, the current regulations lack specificity
related to how MCACs can be used to benefit the Medicaid program more
expressly by more fully promoting the beneficiary voice. MCACs need to
provide a forum for beneficiaries and people with lived experience with
the Medicaid program to share their experiences and challenges with
accessing health care, and to assist States in understanding and better
addressing those challenges. These committees also represent unique
opportunities for States to include representation by members that
reflect the demographics of their Medicaid program to ensure that the
program is best serving the needs of all beneficiaries, but not all
States are utilizing that opportunity.
This final rule strikes a balance that reflects how States
currently use advisory committees (such as MCACs or standalone
beneficiary groups). We know that some States approach these committees
as a way to meet a Federal requirement while other States are using
them in much more innovative ways. As a middle ground, this final rule
seeks to: (1) address the gaps in the current regulations described
previously in this section; and (2) establish requirements to implement
more effective advisory committees. States will select members in a way
that reflects a wide range of Medicaid interested parties (covering a
diverse set of populations and interests relevant to the Medicaid
program), place a special emphasis on the inclusion of the beneficiary
perspective, and create a meeting environment where each voice is
empowered to participate equally.
The changes we are making in this rule are rooted in best practices
learned from States' experiences implementing the existing MCAC
provisions and from other State examples of community engagement that
support getting the type of feedback and experiences from
beneficiaries, their caretakers, providers, and other interested
parties that can then be used to positively impact care delivered
through the Medicaid program.
Accordingly, this final rule includes changes that will support the
implementation of the principles of bi-directional feedback,
transparency, and accountability. We are making changes to the features
of the new committee that can most effectively ensure member
engagement, including the staff and logistical support that is required
for beneficiaries and individuals representing beneficiaries to
meaningfully participate in these committees. We are also making
changes to expand the scope of topics to be addressed by the committee,
address committee membership composition, prescribe the features of
administration of the committee, establish requirements of an annual
report, and underscore the importance of beneficiary engagement through
the addition of a related beneficiary-only group.
C. Home and Community-Based Services (HCBS)
While Medicaid programs are required to provide medically necessary
nursing facility services for most eligible individuals age 21 or
older, coverage for
[[Page 40546]]
HCBS is a State option.\22\ As a result of this ``institutional bias''
in the statute, Medicaid reimbursement for LTSS was primarily spent on
institutional care, historically, with very little spending for
HCBS.\23\ However, over the past several decades, States have used
several Medicaid authorities,\24\ as well as CMS-funded grant
programs,\25\ to develop a broad range of HCBS to provide alternatives
to institutionalization for eligible Medicaid beneficiaries and to
advance person-centered care. Consistent with many beneficiaries'
preferences for where they would like to receive their care, HCBS have
become a critical component of the Medicaid program and are part of a
larger framework of progress toward community integration of older
adults and people with disabilities that spans efforts across the
Federal government. In fact, total Medicaid HCBS expenditures surpassed
the long-standing benchmark of 50 percent of LTSS expenditures in FY
2013 and has remained higher than 50 percent since then, reaching 55.4
percent in FY 2017 and 62.5 percent in FY 2020.\26\ A total of 35
States spent at least 50 percent of Medicaid LTSS expenditures on HCBS
in FY 2020.
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\22\ Murray, Caitlin, Alena Tourtellotte, Debra Lipson, and
Andrea Wysocki. ``Medicaid Long Term Services and Supports Annual
Expenditures Report: Federal Fiscal Year 2019.'' Chicago, IL:
Mathematica, December 2021. Accessed at <a href="https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltssexpenditures2019.pdf">https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltssexpenditures2019.pdf</a>.
\23\ Centers for Medicare and Medicaid Services. November 2020.
Long-Term Services and Supports Rebalancing Toolkit. Accessed at
<a href="https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltss-rebalancing-toolkit.pdf">https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltss-rebalancing-toolkit.pdf</a>.
\24\ These authorities include Medicaid State plan personal care
services and Social Security Act (the Act) section 1915(c) waivers,
section 1915(i) State plan HCBS, section 1915(j) self-directed
personal assistant services, and section 1915(k) Community First
Choice. See <a href="https://www.medicaid.gov/medicaid/home-community-based-services/home-community-based-services-authorities/index.html">https://www.medicaid.gov/medicaid/home-community-based-services/home-community-based-services-authorities/index.html</a> for
more information on these authorities. Some States also use
demonstration authority under section 1115(a) of the Act to cover
and test home and community-based service strategies. See <a href="https://www.medicaid.gov/medicaid/section-1115-demonstrations/index.html">https://www.medicaid.gov/medicaid/section-1115-demonstrations/index.html</a> for
more information.
\25\ Federally funded grant programs include the Money Follows
the Person (MFP) demonstration program, which was initially
authorized by the Deficit Reduction Act of 2005 (Pub. L. 109-171).
The MFP program was recently extended under the Consolidated
Appropriations Act, 2021 (Pub. L. 116-260), which allowed new States
to join the demonstration and made statutory changes affecting MFP
participant eligibility criteria, allowing grantees to provide
community transition services under MFP earlier in an eligible
individual's inpatient stay.
\26\ Murray, Caitlin, Michelle Eckstein, Debra Lipson, and
Andrea Wysocki. ``Medicaid Long Term Services and Supports Annual
Expenditures Report: Federal Fiscal Year 2020.'' Chicago, IL:
Mathematica, December 9, 2021. Accessed at <a href="https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltssexpenditures2020.pdf">https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltssexpenditures2020.pdf</a>.
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Furthermore, HCBS play an important role in States' efforts to
achieve compliance with Title II of the Americans with Disabilities Act
(ADA) of 1990, section 504 of the Rehabilitation Act of 1973 (section
504),\27\ section 1557 of the Affordable Care Act, and the Supreme
Court's decision in Olmstead v. L.C.,\28\ in which the Court held that
unjustified segregation of persons with disabilities is a form of
unlawful discrimination under the ADA \29\ and States must ensure that
persons with disabilities are served in the most integrated setting
appropriate to their needs.\30\ Section 9817 of the American Rescue
Plan Act of 2021 (ARP) (Pub. L. 117-2) recently made a historic
investment in Medicaid HCBS by providing qualifying States with a
temporary 10 percentage point increase to the FMAP for certain Medicaid
expenditures for HCBS that States must use to implement or supplement
the implementation of one or more activities to enhance, expand, or
strengthen HCBS under the Medicaid program.\31\
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\27\ HHS interprets section 504 and Title II of the ADA
similarly regarding the integration mandate and the Department of
Justice generally interprets the requirements under section 504
consistently with those under Title II of the ADA.
\28\ 527 U.S. 581 (1999).
\29\ Medicaid and the Olmstead Decision. Accessed at <a href="https://www.medicaid.gov/about-us/program-history/medicaid-50th-anniversary/entry/47688">https://www.medicaid.gov/about-us/program-history/medicaid-50th-anniversary/entry/47688</a>.
\30\ Medicaid and the Olmstead Decision. Accessed at <a href="https://www.medicaid.gov/about-us/program-history/medicaid-50th-anniversary/entry/47688">https://www.medicaid.gov/about-us/program-history/medicaid-50th-anniversary/entry/47688</a>.
\31\ Information on State activities to expand, enhance, or
strengthen HCBS under ARP section 9817 can be found on <a href="http://Medicaid.gov">Medicaid.gov</a>
at <a href="https://www.medicaid.gov/medicaid/home-community-based-services/guidance/strengthening-and-investing-home-and-community-based-services-for-medicaid-beneficiaries-american-rescue-plan-act-of-2021-section-9817/index.html">https://www.medicaid.gov/medicaid/home-community-based-services/guidance/strengthening-and-investing-home-and-community-based-services-for-medicaid-beneficiaries-american-rescue-plan-act-of-2021-section-9817/index.html</a>.
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Medicaid coverage of HCBS varies by State and can include a
combination of medical and non-medical services, such as case
management, homemaker, personal care, adult day health, habilitation
(both day and residential), and respite care services. HCBS programs
serve a variety of targeted population groups, such as older adults,
and children and adults with intellectual or developmental
disabilities, physical disabilities, mental health/substance use
disorders, and complex medical needs. HCBS programs provide
opportunities for Medicaid beneficiaries to receive services in their
own homes and communities rather than in institutions.
CMS and States have worked for decades to support the increased
availability and provision of high-quality HCBS for Medicaid
beneficiaries. While there are quality and reporting requirements for
Medicaid HCBS, the requirements vary across authorities and are often
inadequate to provide the necessary information for ensuring that HCBS
are provided in a high-quality manner that best protects the health and
welfare of beneficiaries. Consequently, quality measurement and
reporting expectations are not consistent across and within services,
but instead vary depending on the authorities under which States are
delivering services. Additionally, States have flexibility to determine
the quality measures they use in their HCBS programs. While we support
State flexibility, a lack of standardization has resulted in thousands
of metrics and measures currently in use across States, with different
metrics and measures often used for different HCBS programs within the
same State. As a result, CMS and States are limited in the ability to
compare HCBS quality and outcomes within and across States or to
compare the performance of HCBS programs for different populations.
In addition, although there are differences in rates of disability
among demographic groups, there are very limited data currently
available to assess disparities in HCBS access, utilization, quality,
and outcomes. Few States have the data infrastructure to systematically
or routinely report data that can be used to assess whether disparities
exist in HCBS programs. This lack of available data also prevents CMS
and States from implementing interventions to make improvements in HCBS
programs designed to consistently meet the needs of all beneficiaries.
Compounding these concerns have been notable and high-profile instances
of abuse and neglect in recent years, which have been shown to result
from poor quality care and inadequate oversight of HCBS in Medicaid.
For example, a 2018 report, ``Ensuring Beneficiary Health and Safety in
Group Homes Through State Implementation of Comprehensive Compliance
Oversight,'' \32\ (``Joint Report''), which was jointly developed by
the U.S. Department of Health Human Services' Administration for
Community Living (ACL), Office for Civil Rights (OCR), and the Office
of
[[Page 40547]]
Inspector General (OIG), found systemic problems with health and safety
policies and procedures being followed in group homes and that failure
to comply with these policies and procedures left beneficiaries in
group homes at risk of serious harm. In addition, while existing
regulations provide safeguards for all Medicaid beneficiaries in the
event of a denial of Medicaid eligibility or an adverse benefit
determination by the State Medicaid agency and, where applicable, by
the beneficiary's managed care plan, there are no safeguards related to
other issues that HCBS beneficiaries may experience, such as the
failure of a provider to comply with the HCBS settings requirements or
difficulty accessing the services in the person-centered service plan
unless the individual is receiving those services through a Medicaid
managed care arrangement.
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\32\ Ensuring Beneficiary Health and Safety in Group Homes
Through State Implementation of Comprehensive Compliance Oversight.
US Department of Health and Human Services, Office of the Inspector
General, Administration for Community Living, and Office for Civil
Rights. January 2018. Accessed at <a href="https://oig.hhs.gov/reports-and-publications/featured-topics/group-homes/group-homes-joint-report.pdf">https://oig.hhs.gov/reports-and-publications/featured-topics/group-homes/group-homes-joint-report.pdf</a>.
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Finally, through our regular interactions with State Medicaid
agencies, provider groups, and beneficiary advocates, we observed that
all these interested parties routinely cite a shortage of direct care
workers and high rates of turnover in direct care workers among the
greatest challenges in ensuring access to high-quality, cost-effective
HCBS for people with disabilities and older adults. Some States have
also indicated that a lack of direct care workers is preventing them
from transitioning individuals from institutions to home and community-
based settings. While workforce shortages have existed for years, they
have been exacerbated by the COVID-19 pandemic, which has resulted in
higher rates of direct care worker turnover (for instance, due to
higher rates of worker-reported stress), an inability of some direct
care workers to return to their positions prior to the pandemic (for
instance, due to difficulty accessing child care or concerns about
contracting COVID-19 for people with higher risk of severe illness),
workforce shortages across the health care sector, and wage increases
in types of retail and other jobs that tend to draw from the same pool
of workers.<SUP>33 34 35</SUP>
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\33\ MACPAC Issue Brief. State Efforts to Address Medicaid Home-
and Community-Based Services Workforce Shortages. March 2022.
Accessed at <a href="https://www.macpac.gov/wp-content/uploads/2022/03/MACPAC-brief-on-HCBS-workforce.pdf">https://www.macpac.gov/wp-content/uploads/2022/03/MACPAC-brief-on-HCBS-workforce.pdf</a>.
\34\ Campbell, S., A. Del Rio Drake, R. Espinoza, K. Scales.
2021. Caring for the future: The power and potential of America's
direct care workforce. Bronx, NY: PHI <a href="http://phinational.org/wp-content/uploads/2021/01/Caring-for-the-Future-2021-PHI.pdf">http://phinational.org/wp-content/uploads/2021/01/Caring-for-the-Future-2021-PHI.pdf</a>.
\35\ American Network of Community Options and Resources
(ANCOR). 2021. The state of America's direct support workforce 2021.
Alexandria, VA: ANCOR. Accessed at <a href="https://www.ancor.org/sites/default/files/the_state_of_americas_direct_support_workforce_crisis_2021.pdf">https://www.ancor.org/sites/default/files/the_state_of_americas_direct_support_workforce_crisis_2021.pdf</a>.
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To address the list of challenges outlined in this section, we
proposed Federal requirements to improve access to care, quality of
care, and health and quality of life outcomes; promote health equity
for people receiving Medicaid-covered HCBS; and ensure that there are
safeguards in place for beneficiaries who receive HCBS through FFS
delivery systems. We solicited comment on other areas for rulemaking
consideration. The requirements we are finalizing in this rule are
intended, individually and as a whole, to promote public transparency
related to the administration of Medicaid HCBS programs.
D. Fee-For-Service (FFS) Payment
Section 1902(a)(30)(A) of the Act requires States to ``assure that
payments are consistent with efficiency, economy, and quality of care
and are sufficient to enlist enough providers so that care and services
are available under the plan at least to the extent that such care and
services are available to the general population in the geographic
area.'' Regulations at Sec. 447.203 require States to develop and
submit to CMS an access monitoring review plan (AMRP) for a core set of
services. Currently, the regulations rely on available State data to
support a determination that the State's payment rates are sufficient
to ensure access to care in Medicaid FFS that is at least as great for
beneficiaries as is generally available to the general population in
the geographic area, as required under section 1902(a)(30)(A) of the
Act.
In the May 6, 2011, Federal Register, we published the Medicaid
Program; Methods for Assuring Access to Covered Medicaid Services
proposed rule (76 FR 26341; hereinafter ``2011 proposed rule''), which
outlined a data-driven process for States with Medicaid services paid
through a State plan under FFS to follow in order to document their
compliance with section 1902(a)(30)(A) of the Act. We finalized the
2011 proposed rule in the November 2, 2015, Federal Register when we
published the ``Medicaid Program; Methods for Assuring Access to
Covered Medicaid Services'' final rule with comment period (80 FR
67576; hereinafter ``2015 final rule with comment period''). Among
other requirements, the 2015 final rule with comment period required
States to develop and submit to CMS an AMRP for certain Medicaid
services that is updated at least every 3 years. Additionally, the rule
required that when States submit a SPA to reduce or restructure
provider payment rates, they must consider the data collected through
the AMRP and undertake a public process that solicits input on the
potential impact of the proposed reduction or restructuring of Medicaid
FFS payment rates on beneficiary access to care. We published the
``Medicaid Program; Deadline for Access Monitoring Review Plan
Submissions'' final rule in the April 12, 2016 Federal Register (81 FR
21479; hereinafter ``2016 final rule'') with a revised deadline for
States' AMRPs to be submitted to us.
Following the implementation of the AMRP process, numerous States
have expressed concern regarding the administrative burden associated
with the 2015 final rule with comment period requirements, especially
those States with high rates of beneficiary enrollment in managed care.
In an attempt to address some of the States' concerns regarding
unnecessary administrative burden, we issued a State Medicaid Director
letter (SMDL) on November 16, 2017 (SMDL #17-004), which clarified the
circumstances in which provider payment reductions or restructurings
would likely not result in diminished access to care, and therefore,
would not require additional analysis and monitoring procedures
described in the 2015 final rule with comment period.\36\ Subsequently,
in the March 23, 2018 Federal Register, we published the ``Medicaid
Program; Methods for Assuring Access to Covered Medicaid Services-
Exemptions for States With High Managed Care Penetration Rates and Rate
Reduction Threshold'' proposed rule (83 FR 12696; hereinafter ``2018
proposed rule''), which would have exempted States from requirements to
analyze certain data or monitor access when the vast majority of their
covered beneficiaries receive services through managed care plans. That
proposed rule, if it had been finalized, would have provided similar
flexibility to all States when they make nominal rate reductions or
restructurings to FFS payment rates. Based on the responses received
during the public comment period, we decided not to finalize the
proposed exemptions.
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\36\ State Medicaid Director Letter #17-0004 Re: Medicaid Access
to Care Implementation Guidance. Accessed at <a href="https://www.medicaid.gov/federal-policy-guidance/downloads/smd17004.pdf">https://www.medicaid.gov/federal-policy-guidance/downloads/smd17004.pdf</a>
(November 2017).
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In the July 15, 2019, Federal Register, we published the ``Medicaid
Program; Methods for Assuring Access to Covered Medicaid Services-
Rescission'' proposed rule (84 FR 33722; hereinafter ``2019 proposed
rule'') to rescind the regulatory access requirements at Sec. Sec.
447.203(b) and 447.204, and
[[Page 40548]]
concurrently issued a CMCS Informational Bulletin (CIB) \37\ stating
the agency's intention to establish a new access strategy. Based on the
responses we received during the public comment period, we decided not
to finalize the 2019 proposed rule, and instead continue our efforts
and commitment to develop a data-driven strategy to understand access
to care in the Medicaid program.
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\37\ CMCS Informational Bulletin: Comprehensive Strategy for
Monitoring Access in Medicaid, Accessed at <a href="https://www.medicaid.gov/federal-policy-guidance/downloads/CIB071119.pdf">https://www.medicaid.gov/federal-policy-guidance/downloads/CIB071119.pdf</a> (July 2019).
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States have continued to question whether the AMRP process is the
most effective or accurate reflection of access to care in a State's
Medicaid program, and requested we provide additional clarity on the
data necessary to support compliance with section 1902(a)(30)(A) of the
Act. In reviewing the information that States presented through the
AMRPs, we also have questioned whether the data and analysis
consistently address the primary access-related question posed by
section 1902(a)(30)(A) of the Act--namely, whether rates are sufficient
to ensure access to care at least as great as that enjoyed by the
general population in geographic areas. The unstandardized nature of
the AMRPs, which largely defer to States to determine appropriate data
measures to review and monitor when documenting access to care, have
made it difficult to assess whether any single State's analysis
demonstrates compliance with section 1902(a)(30)(A) of the Act.
While the AMRPs were intended to be a useful guide to States in the
overall process to monitor beneficiary access, they are generally
limited to access in FFS delivery systems and focus on targeted payment
rate changes rather than the availability of care more generally or
population health outcomes (which may be indicative of the population's
ability to access care). Moreover, the AMRP processes are largely
procedural in nature and not targeted to specific services for which
access may be of particular concern, requiring States to engage in
triennial reviews of access to care for certain broad categories of
Medicaid services--primary care services, physician specialist
services, behavioral health services, pre- and post-natal obstetric
services, and home health services. Although the 2016 final rule
discussed that the selected service categories were intended to be
indicators for available access in the overall Medicaid FFS system,
these categories do not directly translate to the services authorized
under section 1905(a) of the Act, granting States deference as to how
broadly or narrowly to apply the AMRP analysis to services within their
programs. For example, the category ``primary care services'' could
encompass several of the Medicaid service categories described within
section 1905(a) of the Act and, without clear guidance on which section
1905(a) services categories, qualified providers, or procedures we
intended States to include within the AMRP analyses, States were left
to make their own interpretations in analyzing access to care under the
2016 final rule.
Similarly, a number of the AMRP data elements, both required and
suggested within the 2016 final rule, may be overly broad, subject to
interpretation, or difficult to obtain. Specifically, under the 2016
final rule provisions, States are required to review: the extent to
which beneficiary needs are fully met; the availability of care through
enrolled providers to beneficiaries in each geographic area, by
provider type and site of service; changes in beneficiary utilization
of covered services in each geographic area; the characteristics of the
beneficiary population (including considerations for care, service and
payment variations for pediatric and adult populations and for
individuals with disabilities); and actual or estimated levels of
provider payment available from other payers, including other public
and private payers, by provider type and site of service. Although
service utilization and provider participation are relatively easy
measures to source and track using existing Medicaid program data, an
analysis of whether beneficiary needs are fully met is at least
somewhat subjective and could require States to engage in a survey
process to complete. Additionally, while most Medicaid services have
some level of equivalent payment data that can be compared to other
available public payer data, such as Medicare, private payer
information may be proprietary and difficult to obtain. Therefore, many
States struggled to meet the regulatory requirement to compare Medicaid
program rates to private payer rates because of their inability to
obtain private payer data.
Due to these issues, States produced varied AMRPs through the
triennial process that were, as a whole, difficult to interpret or to
use in assessing compliance with section 1902(a)(30)(A) of the Act. In
isolation, a State's specific AMRP most often presented data that could
be meaningful as a benchmark against changes within a State's Medicaid
program, but did not present a case for Medicaid access consistent with
the general population in geographic areas. Frequently, the data and
information within the AMRPs were presented without a formal
determination or attestation from the State that the information
presented established compliance with section 1902(a)(30)(A) of the
Act. Because the States' AMRPs generally varied to such a great degree,
there was also little to glean in making State-to-State comparisons of
performance on access measures, even for States with geographic and
demographic similarities.
Based on results of the triennial AMRPs, we were uncertain of how
to make use of the information presented within them other than to make
them publicly available. We published the AMRPs on <a href="http://Medicaid.gov">Medicaid.gov</a> but had
little engagement with States on the content or results of the AMRPs
since much of the information within the plans could not meaningfully
answer whether access in Medicaid programs satisfied the requirements
of section 1902(a)(30)(A) of the Act. Additionally, we received little
feedback from providers, beneficiaries, or advocates on whether or how
interested parties made use of the triennial AMRPs. However, portions
of the 2016 final rule related to public awareness and feedback on
changes to Medicaid payment rates and the analysis that we received
from individual States proposing to make rate changes was of great
benefit in determining approvals of State payment change proposals.
Specifically, the portion of the AMRP process where States update their
plans to describe data and measures to serve as a baseline against
which they monitor after reducing or restructuring Medicaid payments
allows States to document consistency with section 1902(a)(30)(A) of
the Act at the time of SPA submission, usually as an assessment of how
closely rates align with Medicare rates, and to understand the impact
of reductions through data monitoring after SPA approval.
Under this final rule, we balance elimination of unnecessary
Federal and State administrative burden with robust implementation of
the Federal and State shared obligation to ensure that Medicaid payment
rates are set at levels sufficient to ensure access to care for
beneficiaries consistent with section 1902(a)(30)(A) of the Act. The
provisions of this final rule, as discussed in more detail later, will
better achieve this balance through improved transparency of Medicaid
FFS payment rates, through publication of a comparative payment rate
analysis to Medicare and payment rate disclosures,
[[Page 40549]]
and through a more targeted and defined approach to evaluating data and
information when States propose to reduce or restructure their Medicaid
payment rates. Payment rate transparency is a critical component of
assessing compliance with section 1902(a)(30)(A) of the Act. In
addition, payment rate transparency helps to ensure that interested
parties have basic information available to them to understand Medicaid
payment levels and the associated effects of payment rates on access to
care so that they may raise concerns to State Medicaid agencies via the
various forms of public processes discussed within this final rule.
Along with improved payment rate transparency and disclosures as well
as comparative payment rate analyses, we are finalizing a more
efficient process for States to undertake when submitting rate
reduction or restructuring SPAs to CMS for review. As we move toward
aligning our Medicaid access to care strategy across FFS and managed
care delivery systems, we will consider additional rulemaking to help
ensure that Medicaid payment rate information is appropriately
transparent and rates are fully consistent with broad access to care
across delivery systems, so that interested parties have a more
complete understanding of Medicaid payment rate levels and resulting
access to care for beneficiaries.
II. Summary of the Proposed Provisions and Analysis of and Responses to
the Public Comments
We received 2,123 public comments from individuals and
organizations, including, but not limited to, individuals, State
government agencies, non-profit health care organizations, advocacy
groups, associations, law firms, managed care plans, academic groups,
and tribal organizations. We thank and appreciate the commenters for
their consideration of the proposed requirements for ensuring access to
care, quality and health outcomes, and better addressing health equity
issues in the Medicaid program across FFS and managed care delivery
systems, and in HCBS programs. In general, commenters supported the
proposed rule. In this section, arranged by subject area, we summarize
the proposed provisions, the public comments received, and our
responses. For a complete and full description of the proposed
requirements, see the 2023 proposed rule, ``Medicaid Program; Ensuring
Access to Medicaid Services'' (88 FR 27960, May 5, 2023) hereafter
referred to as the ``proposed rule.''
We also received a number of out-of-scope comments that are not
addressed in this final rule. In addition, we received some comments
which were s solely applicable to the Managed Care proposed rule.
Please see the Managed Care final rule for a for a summary of the
comments CMS received pertaining to that proposed rule.
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
action, it shall be severable from this final rule, and from rules and
regulations currently in effect, and not affect the remainder thereof
or the application of the provision to other persons not similarly
situated or to other, dissimilar circumstances. If any provision is
held to be invalid or unenforceable, the remaining provisions which
could function independently, should take effect and be given the
maximum effect permitted by law. 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.
Finally, we note that we are finalizing with modification several
of the dates for when we expect States to begin complying with the
requirements being finalized in this rule, instead of what we proposed.
Generally, we are finalizing that this rule, including the proposals
being finalized herein, will be effective 60 days after publication of
this final rule. However, we are finalizing that States are not
required to begin compliance with most requirements being finalized in
this rule until a specified applicability date, which we have specified
for each such individual proposal being finalized. We discuss in detail
the applicability date we are finalizing for each proposal being
finalized in this rule in the respective section of this preamble. We
encourage States, providers, and interested parties to confirm the
applicability dates indicated in this final rule for any changes from
the proposed. To assist, we are including Table 1 with the provisions
and relevant timing information and dates.
BILLING CODE 4120-01-P
[[Page 40550]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.023
BILLING CODE 4120-01-C
[[Page 40551]]
A. Medicaid Advisory Committee and Beneficiary Advisory Council (Sec.
431.12)
The current regulations at Sec. 431.12 require States to have a
Medical Care Advisory Committee (MCAC) to advise the State Medicaid
agency about health and medical care services. The regulations are
intended to ensure that State Medicaid agencies had a way to receive
feedback regarding health and medical care services from interested
parties. However, these regulations lacked specificity related to how
these committees can be used to ensure the proper and efficient
administration of the Medicaid program more expressly by more fully
promoting beneficiary perspectives.
Under the authority of section 1902(a)(4) of the Act, section
1902(a)(19) of the Act, and our general rulemaking authority in section
1102 of the Act, we are finalizing proposals to Sec. 431.12 to replace
the current MCAC requirements with a committee framework designed to
ensure the proper and efficient administration of the Medicaid program
and to better ensure that services under the Medicaid program will be
provided in a manner consistent with the best interests of the
beneficiaries. States will be required to establish and operate the
newly named Medicaid Advisory Committee (MAC) and a Beneficiary
Advisory Council (BAC). Please note that in the proposed rule, the BAC
was referred to as the Beneficiary Advisory Group, or BAG. The MAC and
its corresponding BAC will serve as vehicles for bi-directional
feedback between interested parties and the State on matters related to
the effective administration of the Medicaid program as determined by
the State and MAC. With the changes in this final rule FFP, or Federal
match, for Medicaid administrative activities will remain available to
States for expenditures related to MAC and BAC activities in the same
manner as the former MCAC.
The proposed and finalized requirements of the MAC amend previous
and add new Federal requirements to: (1) expand the scope and use of
States' MACs; (2) rename the Medicaid Advisory Committee, which will
advise the State on a range of issues including medical and non-medical
services; (3) require States to establish a BAC; (4) establish minimum
requirements for Medicaid beneficiary representation on the MAC,
membership, meetings materials, and attendance; and (5) promote
transparency and accountability between the State and interested
parties by making information on the MAC and BAC activities publicly
available. The finalized requirements aimed at promoting transparency
and accountability also include a requirement for States to create and
publicly post an annual report summarizing the MAC and BAC activities.
We note that some commenters expressed general support for all of
the provisions in section II.A. of this rule, as well as for this rule
in its entirety. In response to commenters who supported some, but not
all, of the policies and regulations we proposed in the proposed rule,
we are clarifying and emphasizing our intent that each final policy and
regulation is distinct and severable to the extent it does not rely on
another final policy or regulation that we proposed.
While the provisions in section II.A. of this final rule are
intended to present a comprehensive approach to implementing Medicaid
Advisory Committees and Beneficiary Advisory Councils, and these
provisions complement the goals expressed and policies and regulations
being finalized in sections II.B. (Home and Community-Based Services)
and II.C.(Documentation of Access to Care and Service Payment Rates) of
this final rule, we intend that each of them is a distinct, severable
provision, as finalized. Unless otherwise noted in this rule, each
policy and regulation being finalized under this section II.A is
distinct and severable from other final policies and regulations being
finalized in this section or in sections II.B. or II.C of this final
rule, as well as from rules and regulations currently in effect.
Consistent with our previous discussion earlier in section II. of
this final rule regarding severability, 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 State action, it
shall be severable from this final rule, and from rules and regulations
currently in effect, and not affect the remainder thereof or the
application of the provision to other persons not similarly situated or
to other, dissimilar circumstances. For example, we intend that the
policies and regulations we are finalizing related to the State Plan
requirement (section II.A.2 of this final rule) are distinct and
severable from the policies and regulations we are finalizing related
to the MAC Membership and Composition requirement and the Annual Report
requirement (sections II.A.4 and II.A.9 of this final rule, which we
further intend are severable from each other).
1. Basis and Purpose (Sec. 431.12(a))
Under Sec. 431.12 of the current regulation, paragraph (a) Basis
and Purpose, sets forth a State plan requirement for the establishment
of a committee (Medical Care Advisory Committee) to advise the Medicaid
agency about health and medical care services. In the proposed rule, we
proposed to amend the title of Sec. 431.12 and paragraph (a) to update
the name of the existing MCAC to the Medicaid Advisory Committee (MAC),
and to add the requirement for States to establish and operate a
dedicated advisory council comprised of Medicaid beneficiaries, the
Beneficiary Advisory Group. In this final rule, we are changing the
name from the Beneficiary Advisory Group to the Beneficiary Advisory
Committee (BAC).
In the proposed rule, we stated that our goal was for the committee
and its corresponding advisory council to serve in an advisory role to
the State on issues related to health and medical services, as the MCAC
did, as well as on other matters related to policy development and to
the effective administration of the Medicaid program consistent with
the language of section 1902(a)(4)(B) of the Act, which requires a
State plan to meaningfully engage Medicaid beneficiaries and other low-
income people in the administration of the plan.\38\ The Medicaid
program covers medical services and is increasingly also covering
services designed to address beneficiaries' social determinants of
health and their health-related social needs more generally. Therefore,
we believe that the MAC should discuss topics directly related to
covered services as well as the potential need for the coverage of
additional services that may be necessary to ensure that beneficiaries
are able to meaningfully access these services. Expanding the scope of
the current committee is necessary in order to align with the expanding
scope of the Medicaid program. These changes are consistent with
section 1902(a)(4)(B) of the Act because the MAC creates a formalized
way for interested parties and beneficiary representatives to provide
feedback to the State about issues related to the Medicaid program and
the services it covers. The feedback from the MAC and BAC will be used
by the State to ensure that the program operates efficiently and as it
was designed to operate.
---------------------------------------------------------------------------
\38\ Medicaid Program; Ensuring Access to Medicaid Services,''
(88 FR 27967).
---------------------------------------------------------------------------
We received public comments on these proposals. The following is a
[[Page 40552]]
summary of the comments we received and our responses.
Comment: We received a large number of comments in support of the
proposed changes to the MCAC regulation and structure as proposed in
Sec. 431.12(a). The commenters expressed broad support for creation of
the dual structure of the MAC and BAC. They noted that the creation of
the BAC was a positive and welcome step to better capturing the lived
experiences of people enrolled in Medicaid. Commenters also noted that
having the BAC advise the MAC on policy development was a way to
prioritize beneficiaries' perspectives. Commenters noted that the
improvements proposed to the existing MCAC structure had the potential
to be transformative and make the State more attuned to the needs and
priorities of Medicaid beneficiaries.
Response: We thank commenters for their support of our overhaul of
the MCAC. We are finalizing as proposed, with minor technical changes,
the creation of the MAC and BAC.
Comment: We also received comments in opposition to the creation of
a BAC. Generally, opposing commenters wanted CMS to be less
prescriptive and allow States to engage Medicaid beneficiaries in other
ways (for example, using existing State committees to serve as the BAC,
conducting focus groups, and fielding surveys). Other commenters noted
that States would need resources to implement the BAC, citing the
additional administrative burden and layering of meetings for certain
members.
Response: We encourage States to engage with their Medicaid
beneficiaries in a variety of ways, and we understand that many States
may already operate groups or committees comprised of Medicaid
beneficiaries. However, having a formalized structure to work directly
with Medicaid beneficiaries will help to ensure a level and manner of
engagement across all State programs. For the commenters concerned with
the BAC adding administrative burden, we acknowledge that implementing
these changes will create administrative burden. We discuss
administrative burden to States in the Regulatory Impact Analysis
section of this rule. However, in an effort to minimize administrative
burden for States, we note that existing committees can be used to
fulfill the BAC requirement as long as the committees meet the
membership requirements specified in Sec. 431.12(e). Later in this
section, we also note that States do not have to use the same BAC
members to join all MAC meetings. While it may not be an ideal way to
create long-term consistency of the MAC membership, States could, in an
effort to lessen the time commitment of BAC members, choose to rotate
which members attend the quarterly MAC meetings.
Comment: We received several comments asking for the BAG name to be
changed. The commenters cited potentially negative connotations that
could be associated with the acronym BAG. Additionally, a few
commenters requested that States with existing beneficiary groups be
able to maintain their names.
Response: We have changed the name of the BAG to the BAC, as noted
earlier in this final rule. For commenters concerned with duplicative
efforts, we noted in the proposed rule that States with existing BAC-
like committees can use those committees to fulfil the BAC requirement
as long as they meet the membership requirements specified Sec.
431.12(e). States are not required to change their existing group names
to match the BAC name as long as interested parties understand what
existing group or committee is being used to fulfill regulatory
requirement of the BAC. To clarify this for interested parties, States
must note in their publicly posted by-laws (Sec. 431.12 (f)(1)) that
the group is being used to fulfill the regulatory requirements of Sec.
431.12.
Comment: Several commenters asked CMS to clarify the role of the
MAC and BAC, citing that in the proposals, the language varies from
``advisory'' to ``providing feedback.'' Other commenters expressed that
they do not want the MAC and BACs to be approval bodies that lack the
ability to make decisions.
Response: The primary role of the MAC and BAC is to advise the
State Medicaid agency on policy development and on matters related to
the effective administration of the Medicaid program. It is our
intention that the MAC and BAC serve in an advisory capacity to the
State. However, serving in an advisory capacity does not preclude the
MAC and BAC members from sharing experiential feedback. We did not
propose to give the MAC or BAC a decision-making role because we want
to allow States the freedom to administer their Medicaid programs in
the manner they see fit, but be guided by these two entities'
recommendations and experiences with the Medicaid program.
Comment: We received a comment asking CMS to require that the MAC
and BAC not be used to take the place of a State's tribal consultation
requirements.
Response: We do not anticipate that the MAC or BAC could be used to
fulfill tribal consultation requirements under section 1902(a)(73) of
the Act. For States with one or more Indian Health Programs or Urban
Indian Organizations that furnish health care services, the State must
consult with such Programs and Organizations on a regular, ongoing
basis. While the statute specifically permits representatives of such
Programs and Organizations to be included on the MCAC [now known as the
MAC], this alone would not meet the requirement to consult on any State
plan amendments (SPAs), waiver requests, and proposals for
demonstration projects likely to have a direct effect on Indians,
Indian Health Programs, or Urban Indian Organizations prior to
submission.
Comment: We received a few comments requesting that CMS conduct a
study to assess which States already have MCACs or BACs to ensure they
are no duplicative efforts. Another commenter asked CMS to solicit
feedback from existing MCAC members to see how it can be improved
before making beneficiary groups a requirement.
Response: We clarify that MCACs are currently required of all
States so conducting an assessment to see which States already have
MCACs would not necessarily result in a lot of new information.
However, we agree that understanding which States already have BAC-like
committees in place would be helpful. In fact, when developing the
proposed rule, we engaged with interested parties, both from State
Medicaid agencies and the wider Medicaid community, to determine what
improvements were needed to the MCACs to allow States and beneficiaries
to obtain the most benefit from their work. For commenters concerned
with duplicative BAC activities, we note again that States with an
existing beneficiary group or beneficiary committee that meets the
requirement of the BAC, as finalized in this rule at Sec. 431.12(e),
do not need to set up a second beneficiary committee.
Comment: We received a few comments asking CMS to require the MAC
and BAC to coordinate with other State advisory committees.
Response: States will vary in how they run their advisory
committees. Some States may choose to coordinate across their different
advisory committees, while other States may have reasons for keeping
their advisory committees and their processes separate. We do not want
to add more administrative burden by adding a requirement to Sec.
431.12 for States to coordinate across State advisory committees.
However, if coordinating
[[Page 40553]]
across these committees in some manner would be advantageous for the
Medicaid program, then we encourage the State to do so.
After consideration of public comments, we are finalizing Sec.
431.12(a) as proposed with the following change:
Language modifications to reflect the new name of the ``Beneficiary
Advisory Council (BAC).''
2. State Plan Requirement (Sec. 431.12(b))
Under Sec. 431.12 of the current regulation, paragraph (b) State
Plan Requirement, calls for a State plan to provide for a MCAC to
advise the Medicaid agency director about health and medical care
services.
We proposed conforming updates to paragraph (b) regarding the State
plan requirements, to reflect the addition of the BAC and the expanded
scope.
The Interested Parties Advisory Group, described in a later section
of this final rule (Interested Parties Advisory Group Sec.
447.203(b)(6)), is designed to advise States on rate setting and other
matters for certain HCBS and is not related to the MAC or BAC specified
here. In section II.C.2.c. of this final rule, under Sec.
447.203(b)(6), we explain that States will have the option to use its
MAC and BAC to provide recommendations for payment rates, thereby
satisfying the requirements of Sec. 447.203(b)(6). However, the MAC
and BAC requirements finalized here are wholly separate from the
Interested Parties Advisory Group.
We did not receive public comments on Sec. 431.12(b). However, we
are making one conforming edit to this paragraph based on a language
change identified in Sec. 431.12(c) to replace the term State Medicaid
Director. We are finalizing as proposed with the following changes:
<bullet> Language modifications to reflect the new name of the
``Beneficiary Advisory Council (BAC).''
<bullet> Replacing the term Medicaid Agency Director with the term,
``director of the single State Agency for the Medicaid program.''
3. Selection of Members (Sec. 431.12(c))
Under Sec. 431.12 of the current regulation, paragraph (c)
Appointment of members, the agency director, or a higher State
authority, must appoint members to the advisory committee on a rotating
and continuous basis.
We proposed to revise paragraph (c) to specify that the members of
the MAC and BAC must be appointed by the agency director or a higher
State authority on a rotating and continuous basis. We also proposed to
require the State to create a process for the recruitment and
appointment of members of the MAC and BAC. Additionally, we proposed to
require the State to post this information on the State's website. As
discussed in the proposed rule,\39\ the website page where this
information is located would be required to be easily accessible by the
public. These proposed updates align with how some States' existing
MCACs are already run, which will facilitate the transition of these
MCACs into MAC/BACs. Additionally, the proposed changes are designed to
provide additional details to support States' operation of the MAC and
BAC. Further, we believe these proposed updates will facilitate
transparency, improving the current regulations, which did not mention
nor promote transparency of information related to the MCAC with the
public. We also believe that transparency of information can lead to
enhanced accountability on the part of the State in making its MAC and
BAC as effective as possible.
---------------------------------------------------------------------------
\39\ Medicaid Program; Ensuring Access to Medicaid Services,''
(88 FR 27960, 27968).
---------------------------------------------------------------------------
We received public comments on these proposals. The following is a
summary of the comments we received and our responses.
Comment: We received several comments regarding the terms used to
describe who should be given the authority to appoint members to the
MAC and BAC. Many commenters supported the proposal of having the State
Medicaid Director appoint the members. A few commenters suggested that
we make clarifications to the proposed regulation language so that only
the State Medicaid Director and not ``a higher State authority'' is
referenced, since the work of the MAC and BAC is to advise the State
Medicaid Director. Others noted that the correct term to use in the
regulation when referring to the State Medicaid Director is the
director of the single State agency for the Medicaid program. There was
another category of commenters that did not believe the authority to
select MAC and BAC members should sit with either the State Medicaid
Director or a higher State Authority. These commenters instead stated
it would be more equitable if prospective MAC and BAC members were
selected by an outside company, a computer, at random, or by a lottery
system. They noted that in their experiences sometimes parents or
family members are excluded from selection processes. Finally, other
commenters noted that the term ``appointed'' implied that the State did
not use any kind of a ``selection process'' to choose its MAC and BAC
members. These commenters may have felt that the term ``appoint'' means
that the State can simply pick whomever it wants to serve as a member
rather than ``selecting'' members from a pool of people who submitted
applications to serve as MAC or BAC members.
Response: We appreciate the comments provided on this section and
acknowledge the complicated work that comes with selecting MAC and BAC
members. Since the MAC and BAC serve in an advisory role to the
Medicaid program, we believe strongly that the authority to select
should lie with the director of the State Medicaid agency. We know that
Medicaid agencies' names may vary from State to State, and thus, agree
that language in the regulation can be changed to more clearly reflect
a more commonly used term for the Medicaid agency (that is, the single
State Agency for the Medicaid Program). For commenters that expressed
concern that parents or family members are excluded from the selection
processes, we note that the BAC regulations require both Medicaid
beneficiaries and individuals with direct experience supporting
Medicaid beneficiaries, such as family members to be selected. Finally,
we agree that the word ``appoint'' in the proposed rule does not
accurately reflect the intention of the regulation and could be
misinterpreted to mean that the State did not use a selection process
where interested parties submit an application and then the State
reviews those applications before selecting its MAC and BAC members.
Based on the comments we received, we now understand that the term
``appoint'' can be taken to mean that a selection process did not
occur. We want to avoid any confusion that the requirements are asking
the State to appoint members without using a selection process, which
was not our intention. For clarity, we are also amending the regulatory
language in Sec. 431.12(c) to now state that the ``director of the
single State Agency for the Medicaid program,'' must ``select'' members
for the MAC and BAC.
Comment: We received comments on the proposed changes to Sec.
431.12(c) related to term limits of the MAC and BAC members. The
commenters were generally divided across wanting CMS to require States
to have set term limits for members, not wanting any term limits, and
not wanting short term limits. Commenters who expressed support for set
term limits noted that setting term limits ensured that new
perspectives would be added on a regular basis while others noted that
setting term limits allowed members to
[[Page 40554]]
share recommendations or constructive criticism without fear of
retaliation. The commenters who opposed term limits noted that finding
people with Medicaid expertise may be difficult in some geographic
areas and, as a result, the State would benefit from having the same
members serve without term limits. Other commenters noted that it takes
time for members to build their expertise and understanding of the
Medicaid program and setting short term limits may not take into
account the time needed to accumulate enough knowledge to contribute
fully to the MAC and BAC. These commenters suggested term limits with
lengths ranging from 2 to 6 years.
Response: States have the ability to determine the tenure of
members, as States are best situated to assess their members' ability
to participate in and meaningfully contribute to the MAC and BAC and
for what length of time. In the proposed rule, we described the
requirement for States to determine the length of terms for committee
and council members. For clarity, we are amending the regulatory
language in Sec. 431.12(c) to reflect this information as well, to now
state ``. . . members to the MAC and BAC for a term of a length
determined by the State, which may not be followed immediately by a
consecutive term for the same member, on a rotating and continuous
basis.'' We proposed this type of term because we believe there is
value in ensuring new voices and perspectives are introduced to the
committee and council. We further clarify that once a MAC or BAC
member's term has been completed, the State will select a new member,
thus ensuring that MAC and BAC memberships rotate continuously. Setting
memberships as continuously rotating means that the State must seek to
recruit members to fill open seats on the MAC and BAC on an ongoing
basis. States can also select members to serve multiple non-consecutive
terms.
After consideration of public comments, we are finalizing Sec.
431.12(c) with the following changes:
<bullet> Language modifications to reflect the new name of the BAC.
<bullet> Replacing the term agency director or higher authority
with the term, ``director of the single State Agency for the Medicaid
program.''
<bullet> Replacing the word ``appoint'' with ``select'' in various
places.
<bullet> Adding language to the regulation to reflect that ``the
term of length for MAC and BAC members will be term of a length
determined by the State, which may not be followed immediately by a
consecutive term for the same member, on a rotating and continuous
basis.''
4. MAC Membership and Composition (Sec. 431.12(d))
Under Sec. 431.12 of the current regulation, paragraph (d),
Committee Membership, States are required to select three types of
committee members: (1) Board-certified physicians and other
representatives of the health professions who are familiar with the
medical needs of low-income population groups and with the resources
available and required for their care; (2) Members of consumers'
groups, including Medicaid beneficiaries, and consumer organizations
such as labor unions, cooperatives, consumer-sponsored prepaid group
practice plans, and others; and (3) the director of the public welfare
department or the public health department, whichever does not head the
Medicaid agency.
In the proposed rule, paragraph (d) of Sec. 431.12, MAC membership
and composition, we proposed in (d)(1) to require that a minimum of 25
percent of the MAC must be individuals with lived Medicaid beneficiary
experience from the BAC. The BAC, which is defined later in Sec.
431.12(e), is comprised of people who: (1) are currently or have been
Medicaid beneficiaries, and (2) individuals with direct experience
supporting Medicaid beneficiaries (family members or caregivers of
those enrolled in Medicaid).
We proposed 25 percent as the minimum threshold requirement for
(d)(1) to reflect the importance of including the beneficiary
perspective in the administration of the Medicaid program and to ensure
that the beneficiary perspective has meaningful representation in the
feedback provided by the MAC. We did not propose a higher percentage
because we acknowledge that States will benefit from a MAC that
includes representation from a diverse set of interested parties who
work in areas related to Medicaid but are not beneficiaries, their
family members, or their caregivers.
In terms of the required representation from the remaining MAC
members, as specified in the proposed rule, paragraph (d)(2), we
proposed that a State must include at least one from each category: (A)
State or local consumer advocacy groups or other community-based
organizations that represent the interests of, or provide direct
service, to Medicaid beneficiaries; (B) clinical providers or
administrators who are familiar with the health and social needs of
Medicaid beneficiaries and with the resources available and required
for their care; (C) participating Medicaid managed care organizations
or the State health plan association representing such organizations,
as applicable; and (D) other State agencies serving Medicaid
beneficiaries, as ex-officio members.
We believe that advisory committees and councils can be most
effective when they represent a wide range of perspectives and
experiences. Since we know that each State environment is different, we
aimed to provide the State with discretion on how large the MAC and BAC
should be. In the proposed changes we did, however, specify the types
of categories of Committee members that can best reflect the needs of a
Medicaid program. We believe that diversely populated MACs and BACs can
provide States with access to a broad range of perspectives, and
importantly, beneficiaries' perspective, which can positively impact
the administration of the Medicaid program. This approach is consistent
with the language of section 1902(a)(4)(B) of the Act, which requires a
State plan to meaningfully engage Medicaid beneficiaries and other low-
income people in the administration of the plan. The changes in
membership we proposed and are finalizing will support States to set up
MACs that align with section 1902(a)(4)(B) since States will now have
to select the membership composition to reflect the community members
who represent the interests of Medicaid beneficiaries. The State also
benefits from having a way to hear how the Medicaid program can be
responsive to its beneficiaries' and the wider Medicaid community's
needs.
We also noted in the proposed rule that we encourage States to take
into consideration, as part of their member selection process, the
demographics of the Medicaid population in their State. Keeping diverse
representation in mind as a goal for the MAC membership can be a way
for States to help ensure that specific populations and those receiving
critically important services are appropriately represented on the MAC.
For example, in making MAC membership selections, the State may want to
balance the representation of the MAC according to geographic areas of
the State with the demographics and health care needs of the Medicaid
program of the State. The State will want to consider geographical
diversity (for example, urban and rural areas) when making its
membership selections. We noted in the proposed rule, that a State
could also consider demographic representation of its membership by
including members representing or serving Medicaid beneficiaries who
receive services in the
[[Page 40555]]
following categories: (1) pediatric health care; (2) behavioral health
services; (3) preventive care and reproductive health services; (4)
health or service issues pertaining specifically to people over age 65;
and (5) health or service issues pertaining specifically to people with
disabilities. By offering these considerations, we seek to support
States in their efforts to eliminate differences in health care access
and outcomes experienced by diverse populations enrolled in Medicaid.
We intend that the MAC and the BAC can support several of the
priorities for operationalizing health equity across CMS programs as
outlined in the CMS Framework for Health Equity (2022-2032) and the HHS
Equity Action Plan which is consistent with E.O. 13985, which calls for
advancing equity for underserved communities.
Rather than prescribing specific percentages for the other (non-
BAC) categories in the proposed rule, we only required representation
from each category as part of the MAC. The specific percentage of each
of category (other than the BAC members) relative to the whole
committee can be determined by each State. This approach will provide
States with the flexibility to determine how to best represent the
unique landscape of each State's Medicaid program. We solicited comment
on what should be the minimum percentage requirement that MAC members
be current/past Medicaid beneficiaries or individuals with direct
experience supporting Medicaid beneficiaries (such as family members or
caregivers of those enrolled in Medicaid). In addition to hearing
directly from beneficiaries, the State can gain insights into how to
effectively administer its program from other members of the Medicaid
community.
States will determine which types of providers to include under the
clinical providers or administrators category, and we recommend they
consider a wide range of providers or administrators that are
experienced with the Medicaid program including, but not limited to:
(1) primary care providers (internal or family medicine physicians or
nurse practitioners or physician assistants that practice primary
care); (2) behavioral health providers (that is, mental health and
substance use disorder providers); (3) reproductive health service
providers, including maternal health providers; (4) pediatric
providers; (5) dental and oral health providers; (6) community health,
rural health clinic or Federally Qualified Health Center (FQHC)
administrators; (7) individuals providing long-term care services and
supports; and (8) direct care workers \40\ who can be individuals with
direct experience supporting Medicaid beneficiaries (such as family
members or caregivers).
---------------------------------------------------------------------------
\40\ As finalized in Sec. 441.302(k) of this final rule, CMS
defines as Direct care worker as any of the following individuals
who may be employed by a Medicaid provider, State agency, or third
party; contracted with a Medicaid provider, State agency, or third
party; or delivering services under a self-directed service model:
(A) A registered nurse, licensed practical nurse, nurse
practitioner, or clinical nurse specialist who provides nursing
services to Medicaid beneficiaries receiving home and community-
based services available under this subpart; (B) A licensed or
certified nursing assistant who provides such services under the
supervision of a registered nurse, licensed practical nurse, nurse
practitioner, or clinical nurse specialist; (C) A direct support
professional; (D) A personal care attendant; (E) A home health aide;
or (F) Other individuals who are paid to provide services to address
activities of daily living or instrumental activities of daily
living, behavioral supports, employment supports, or other services
to promote community integration directly to Medicaid beneficiaries
receiving home and community-based services available under this
subpart, including nurses and other staff providing clinical
supervision.
---------------------------------------------------------------------------
We have also identified managed care plans, including Primary Care
Case Management (PCCM) entities and Primary Care Case Managers
(PCCMs),\41\ as an important contributor to the MAC, but we acknowledge
that not all States have managed care delivery systems. We know many
Medicaid managed care plans administer similar committees and thus
allow for States to tailor managed care plan representation based on
its delivery system and the experience and expertise of managed care
plans in the State. For example, States, if applicable, can fulfill
this category with only one or with multiple managed care plans
operating in the State. In addition, we also give States the
flexibility to meet the managed care plan representation requirements
with either participating Medicaid managed care plans or a health plan
association representing more than one such organization.
---------------------------------------------------------------------------
\41\ 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 in 42 CFR 438.2] 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 primary care case
management entities (PCCM entities).
---------------------------------------------------------------------------
The language in paragraph (d)(2)(D) broadens the previous MCAC
requirement to allow for additional types of representatives from other
State agencies to be on the committee. Specifically, the previous MCAC
regulation requires membership by ``the director of the public welfare
department or the public health department, whichever does not head the
Medicaid agency.'' In the proposed rule, we expanded the requirement
for external agency representation to be broader than the welfare or
public health department, which would give States more flexibility in
representing the Medicaid program's interests based on States' unique
circumstances and organizational structure. States can work with sister
State agencies to determine who should participate in the MAC (for
example, foster care agency, mental health agency, department of public
health). We also proposed that these representatives be part of the
committee as ex-officio members, meaning that they hold the position
because they work for the relevant State agency. In finalizing the
proposals, we reviewed this requirement closer. While we believe it
will be essential to have these State-interested parties present for
program coordination and information-sharing, we intended to reflect in
the proposed rule that the formal representation of the MAC should be
comprised of beneficiaries, advocates, community organizations, and
providers that serve Medicaid beneficiaries. Therefore, we clarify in
this final rule that while these ex-officio members will sit on the
MAC, they will not be voting members of the MAC. Therefore, on matters
that the MAC decides by vote, including but not necessarily limited to
finalizing the MAC's recommendations to the State, the ex-officio
members will not participate in voting.
We received public comments on these proposals. The following is a
summary of the comments we received and our responses.
Comment: We received many comments about the proposed requirement
of having some BAC members serving on the MAC. Commenters either agreed
with the importance of having a subset of Medicaid beneficiaries serve
on both the BAC and the MAC, or they noted that having a subset of BAC
members on both committees could lead to undue burden for these members
based on the number of meetings they would have to attend. One
commenter suggested a phased-in approach where the BAC members meet
only as the BAC for a time (for example, a year) and then transition to
serving on the MAC only.
Response: We understand the concerns raised by the commenters about
putting undue burden on a subset of BAC members. We believe it is vital
for the success of both the BAC and MAC that there is a point of
integration via the crossover membership requirement since this is the
way to ensure that the Medicaid beneficiary perspective is included in
both groups.
[[Page 40556]]
We created this crossover requirement to reflect the importance of
including the beneficiary perspective in the administration of the
Medicaid program and to ensure that the beneficiary perspective has
meaningful representation in the feedback provided by the MAC. For
commenters that are concerned with undue burden of having a subset of
BAC members also attend MAC meetings, in Sec. 431.12(f)(3), we note
that MACs and BACs are only required to meet once per quarter. While
the regulation does not state that the subset of BAC members that join
each MAC meeting has to be the same, we recognize that it would be more
effective to have consistency in the BAC members that attend the MAC
meetings in many cases. However, if States or the BAC are concerned
with overburdening its BAC members, a potentially less efficient but
workable alternative could be to rotate which BAC members attend the
MAC in an effort to further reduce the number of meetings attended for
a given BAC member. Nevertheless, the suggestion of having a member
transition from solely being on the BAC to solely being on the MAC
might not always promote the crossover concept we are seeking with the
requirement that the MAC membership consist of 10 to 25 percent members
from the BAC, since we are striving for inclusion of the Medicaid
beneficiary perspective in both groups via the BAC members.
Comment: In response to our solicitation about having 25 percent as
the minimum threshold of BAC membership crossover on the MAC, the
majority of the commenters stated that a minimum 25 percent was the
appropriate amount of crossover members. They noted that 25 percent
crossover membership would help to center and amplify beneficiary
voices on the MAC. A few commenters stated that the percentage should
be lower (for example 10 or 15 percent). These commenters cited several
reasons why having a lower threshold number would be better. Some
commenters noted that having a smaller number of BAC members would
allow States to better support or train their members so they could
fully participate in the MAC. Other commenters stated that having a
smaller number of BAC members could lessen the burden on States of
finding and recruiting members to participate. Another group of
commenters wanted the percentage of BAC crossover to be higher than 25
percent (for example 33, 50, 51, or 75 percent). These commenters
sought a higher BAC crossover in order to: safeguard against
marginalization of beneficiary members on the MAC; amplify diverse
voices through a higher crossover number; and rectify any power
imbalances that may exist. There were also a few commenters who noted
that States should have the ability to determine their own percentages
for the BAC crossover. Finally, we received comments asking CMS to
consider allowing States to use a graduated approach to reach the 25
percent minimum requirement of BAC crossover on the MAC.
Response: We thank the commenters who agreed with our proposed
threshold of the requirement for a minimum of 25 percent BAC crossover
on the MAC. For commenters who thought the percentage should be lower,
we understand States may face challenges with finding, recruiting, and
training beneficiary members to serve on the BAC. To account for these
challenges, we are extending the timeframe for implementation of this
requirement in this final rule so that States have 2 years to achieve
the 25 percent minimum threshold requirement of MAC members that come
from the BAC. Instead of the 25 percent minimum threshold coming into
effect right away, we are revising this final rule to provide in Sec.
431.12(d)(1) that, for the period from July 9, 2024 through July 9,
2025, 10 percent of the MAC members must come from the BAC; for the
period from July 10, 2025 through July 9, 2026 20 percent of MAC
members must come from the BAC; and thereafter, 25 percent of MAC
members must come from the BAC.
For commenters who expressed the need for a percentage higher than
25 for the BAC member crossover, we note that the policy we proposed
and are finalizing establishes a minimum percentage threshold for
States to meet. If a State so chooses, it can select a percentage
higher than the minimum of 25 percent, provided the MAC membership also
satisfies the requirements of Sec. 431.12(d)(2) of this final rule.
For commenters who raised the issue of providing training for BAC
members, we have a comment/response on this topic under Sec.
431.12(h)(3).
Comment: The majority of comments received on Sec. 431.12(d) were
about Sec. 431.12(d)(2), MAC composition categories. We received
comments that fell into four groups. The first group of commenters
shared their broad support for the MAC committee member categories that
we proposed and also urged CMS to ensure that States select members
that represented the Medicaid community and who were geographically as
well as racially/ethnically diverse. The second group of commenters
asked for the MAC to include representation from members who would
qualify for the BAC (for example, Medicaid beneficiaries, their
families, and caregivers). It is unclear from the comments if these
commenters were asking for an additional group of Medicaid
beneficiaries be added to the MAC (in addition to the 25 percent of MAC
we proposed to require be from the BAC) or if they did not understand
that the MAC composition already includes a category which accounts for
this category of members. The third group of commenters asked that
specific types of interested parties be required to be represented on
the MAC categories (for example, specific provider types, unions, HCBS
provider agencies, hospitals, protection and advocacy programs, legal
professionals, and medical billing professionals). The fourth group of
commenters suggested ideas for types of MAC members that States could
use to meet categories specified in the proposed rule (for example add
a State Ombudsman to the ex-officio category). We also received a few
suggestions to add specific member categories (for example, a member
category for FFS members, a member category for people with behavioral
health conditions, and a youth member category).
Response: We appreciate the wide range of comments that were
submitted about the MAC membership composition. We developed the MAC
composition framework in the proposed rule by creating broad membership
categories that captured a range of interested parties who are members
of the Medicaid community while giving States as much flexibility as
possible to build their MACs in ways that account for the unique
features of the State's environment. All of the membership categories,
as currently written, are broad enough to accommodate the types of
members described by the commenters. For example, a State Ombudsman can
be used to fulfil the State agency category; a State with both managed
care and FFS could chose to select two members (one for each type of
delivery system) for the MAC; a person with behavioral health
condition(s) could be suitable for multiple categories depending on
whether they are a Medicaid beneficiary (current or former) or
represent a consumer advocacy or community-based organization. Finally,
for the commenter asking for a specific youth member category, we will
note that there are no Federal requirements or limitations concerning
youth participation on the MAC or BAC, and this is in the State's
discretion. The
[[Page 40557]]
State could select a youth member to fulfill a MAC or BAC member
category as long as that person meets the requirements of that
membership category.
We also want to clarify for commenters that Medicaid beneficiaries,
their families, and caregivers have their own MAC category in the
regulation, because the BAC is listed in the final regulation as one of
the categories of MAC members at Sec. 431.12(d)(1).
After consideration of public comments, for Sec. 431.12(d), we are
finalizing as proposed with:
<bullet> Language modifications to reflect the new name of the BAC;
<bullet> Replacing the language at Sec. 431.12 (d)(1) to clarify
the timeframe for States to reach 25 percent of MAC members coming from
the BAC. The new sentence will now read, ``For the period from July 9,
2024 through July 9, 2025, 10 percent of the MAC members must come from
the BAC; for the period from July 10, 2025 through July 10, 2026 20
percent of MAC members must come from the BAC; and thereafter, 25
percent of MAC members must come from the BAC.''
<bullet> Language modifications to Sec. 431.12 (d)(2)(C) to
replace ``managed care plan'' with ``MCOs, PIHPs, PAHPs, PCCM entities
or PCCMs as defined in Sec. 438.2''; and
<bullet> Adding the word ``non-voting'' to ex-officio members at
the end of Sec. 431.12 (d)(2)(D).
5. Beneficiary Advisory Council (Sec. 431.12(e))
The current requirements governing MCACs require the presence of
beneficiaries in committee membership but do little else to ensure
their contributions are considered or their voices heard. For example,
in the current regulations of Sec. 431.12, paragraph (e) Committee
participation, only briefly mentions the participation of beneficiary
members. The current requirement provides little guidance about how to
approach the participation of beneficiary members on the committee.
We proposed to add new paragraph Sec. 431.12(e). The proposed rule
noted that in the new paragraph, (e) Beneficiary Advisory Council,
States would be required to create a BAC, a dedicated Beneficiary
Advisory Council, that will meet separately from the MAC on a regular
basis and in advance of each MAC meeting.
Specifically, at new paragraph (e)(1), we proposed to require that
the MAC members described in paragraph (d)(1) must also be members of
the BAC. This requirement will facilitate the bi-directional
communication essential to effective beneficiary engagement and allow
for meaningful representation of diverse voices across the MAC and BAC.
In paragraph (e)(2), we proposed to require that the BAC meetings occur
in advance of each MAC meeting to ensure BAC member preparation for
each MAC discussion. BAC meetings will also be subject to requirements
in paragraph (f)(5), described later in this section, that the BAC
meetings must occur virtually, in-person, or through a hybrid option to
maximize member attendance. We plan to expound on best practices for
engaging beneficiary participation in committees like the MAC in a
future toolkit.
We proposed the addition of the BAC because we believe that it will
result in providing States with increased access to beneficiary
perspectives. The creation of a separate beneficiary-only advisory
council also aligns with what we have learned from multiple interviews
with State Medicaid agencies and other Medicaid interested parties (for
example, Medicaid researchers, former Medicaid officials) conducted
over the course of 2022 on the operation of the existing MCACs. These
interested parties described the importance of having a comfortable,
supportive, and trusting environment that facilitates beneficiaries'
ability to speak freely on matters most important to them. Further, we
believe that the crossover structure for the MAC and BAC proposed in
Sec. 431.12(d) allows for the beneficiary-only group to meet
separately while still having a formal connection to the broader, over-
arching MAC. It is important the MAC members can directly engage with
the beneficiaries and hear from their experience. We noted earlier that
some States may already have highly effective BAC-type councils
operating as part of their Medicaid program. These existing councils
may represent specific constituencies such as children with complex
medical needs or older adults or may be participants receiving services
under a specific waiver. In these instances, States may use these
councils to satisfy the requirements of this rule, as long as the pre-
existing BAC-type council membership includes the type of members
required in the proposed paragraph of Sec. 431.12(e).
We received public comments on these proposals. The following is a
summary of the comments we received and our responses.
Comment: We received many comments in support of the BAC as
specified in the newly proposed Sec. 431.12(e). Commenters noted that
the BAC would provide a necessary and less-intimidating venue where
Medicaid beneficiaries along with their families and caregivers can
share first-person experiences and feedback to the State. While many
commenters stated the BAC was needed and a welcomed improvement, a few
commenters cautioned that States would need more than just to set up a
BAC; they will also need to invest in creating opportunities for
meaningful engagement.
Response: We agree that the BAC must be supported and used by the
State in ways that create opportunities for BAC members to be actively
involved and have their contributions considered.
Comment: A few commenters asked CMS to clarify how existing
community groups or advisory councils could be used to satisfy the
requirements of the BAC. One commenter asked if the BAC would meet a
State's inclusive Community First Choice (CFC) requirements.
Response: The proposed new paragraph (e) requires that States form
a BAC, but notes that the State can use an existing beneficiary group.
Prior to rulemaking, CMS spoke to several States and researchers to
understand how States were implementing the MCAC requirements. From the
information gathered, we know that many States already have active
Medicaid beneficiary groups that could fill these requirements and can
function as their BACs. In these instances, it is not our intention to
ask a State to create a second Medicaid beneficiary group to meet the
BAC requirements. If a State wants to use an existing group to satisfy
the BAC requirements, they will need to ensure that the existing
committee's membership meets the membership requirements of the BAC and
that the existing committee's bylaws are developed or updated, and
published, to explain that the committee functions to meet the BAC
requirements.
Regarding the ability to use the BAC to meet CFC requirements of
the State, CMS notes in the ``Medicaid Program; State Plan Home and
Community-Based Services, 5-Year Period for Waivers, Provider Payment
Reassignment, and Home and Community-Based Setting Requirements for
Community FirstChoice and Home and Community Based Services (HCBS)
Waivers'' final rule,\42\ that States may utilize existing
[[Page 40558]]
advisory bodies in the implementation of CFC, as long as the statutory
requirements as specified in Sec. 441.715 for the Development and
Implementation Council are met. We acknowledge the benefits of the
Implementation Council coordinating with related interested parties
councils and commissions and encourage States to do so. States may also
choose to leverage these councils and/or include members from these
councils to meet the requirements for CFC.
---------------------------------------------------------------------------
\42\ ``Medicaid Program; State Plan Home and Community-Based
Services, 5-Year Period for Waivers, Provider Payment Reassignment,
and Home and Community-Based Setting Requirements for Community
FirstChoice and Home and Community Based Services (HCBS) Waivers
<a href="https://www.medicaid.gov/sites/default/files/2019-12/cfc-final-settings.pdf">https://www.medicaid.gov/sites/default/files/2019-12/cfc-final-settings.pdf</a>,'' (79 FR 2948, 2982).
---------------------------------------------------------------------------
Comment: The majority of the comments received related to the newly
proposed Sec. 431.12(e) were commenters providing recommendations on
which groups of people should also be required to be included as BAC
members. We received a range of suggestions such as: HCBS
beneficiaries, individuals with specific chronic diseases and
disabilities, individuals using long term care services and supports
(LTSS), individuals who are receiving perinatal health services,
individuals who have lived experience with behavioral health
conditions, and Medicaid beneficiaries who are deaf, hard of hearing,
or deaf blind. Commenters also requested that the BAC members represent
a cross-section of Medicaid beneficiaries that can also be regarded as
demographically and geographically diverse.
Response: We agree with commenters that the States should select
the types of BAC members that can provide them with representative
views of the experience of Medicaid beneficiaries in their State. The
regulatory language provides States with the flexibility to make those
determinations based on the characteristics of their individual State
Medicaid program. It can be challenging to find beneficiaries available
to serve on a council, particularly if the requirements of membership
are very specific. By keeping our regulations broad for what types of
beneficiaries should be selected for the BAC, we seek to ensure States
are able to recruit members with fewer challenges.
Comment: A few commenters asked for CMS to clarify or further
define a few terms used in newly proposed Sec. 431.12(e).
Specifically, a couple of commenters asked CMS to clarify the phrase
``individuals with direct care experience supporting Medicaid
beneficiaries.'' Another commenter asked if CMS could define whether
the term ``caregivers'' included paid caregivers.
Response: In the proposed and in this final rule, we have described
individuals with direct experience supporting Medicaid beneficiaries as
``family members or caregivers of those enrolled in Medicaid.'' In the
proposed rule's preamble,\43\ we state that caregivers can be paid or
unpaid caregivers. To better clarify these definitions, we are adding
the words ``paid or unpaid'' before the word caregiver to the proposed
regulatory language at new paragraph Sec. 431.12(e) so that the phrase
reads, ``. . . individuals who are currently or have been Medicaid
beneficiaries and individuals with direct experience supporting
Medicaid beneficiaries (family members and paid or unpaid caregivers of
those enrolled in Medicaid), to advise the State. . . .''
---------------------------------------------------------------------------
\43\ ``Medicaid Program; Ensuring Access to Medicaid Services,''
(88 FR 27960, 27968).
---------------------------------------------------------------------------
Comment: As noted in an earlier section, several commenters asked
CMS to clarify the role of the BAC, citing that in the proposals, the
language varies from ``advisory'' to ``providing feedback.''
Response: The primary role of the BAC is to advise the State
Medicaid agency on policy development and on matters related to the
effective administration of the Medicaid program. To better clarify the
BAC's advisory role, we are removing from the proposed regulatory
language at new paragraph Sec. 431.12(e) the words and to ``provide
input to.'' The phrase now reads ``. . . to advise the State regarding
their experience with the Medicaid program, on matters of concern
related to policy development and matters related to the effective
administration of the Medicaid program.''
Comment: A few commenters shared suggestions related to the BAC
meetings described in new paragraph Sec. 431.12(e)(2). One commenter
asked CMS to encourage States to hold BAC and MAC meetings on the same
day, with the BAC meeting occurring first in an effort to minimize
travel. Other commenters asked CMS for additional meetings for the BAC
to be required to attend (for example, meetings with the State Medicaid
Director and meetings with CMS regional administrators).
Response: The meeting structure specified in the BAC proposal is
focused on the interplay between the BAC and MAC meetings. In new
paragraph Sec. 431.12(e)(2), we are requiring that the BAC meetings be
held separate from the MAC and in advance of the MAC, so that the BAC
members have the opportunity to prepare and hold an internal discussion
among themselves. Holding MAC and BAC meetings in the same day could be
in line with the meeting requirements. States may wish to hold
additional BAC meetings with other parties, as needed.
Comment: Some commenters asked CMS to create a Federal-level BAC to
ensure consistency across States.
Response: A Federal-level BAC would not further the goal of
providing States with beneficiary input into their programs because it
would not focus on the particular features of each individual State's
Medicaid program or beneficiary and provider communities. Such a group
is beyond the scope of this rulemaking.
After consideration of public comments, we are finalizing new Sec.
431.12(e) as proposed, with changes to:
<bullet> Language modifications to reflect the new name of the BAC;
<bullet> Adding language that caregivers on the BAC can be ``paid
or unpaid.'' Section 431.12 (e) will now state, ``. . . individuals who
are currently or have been Medicaid beneficiaries and individuals with
direct experience supporting Medicaid beneficiaries (family members and
paid or unpaid caregivers of those enrolled in Medicaid) . . . .''
<bullet> Deleting the phrase ``. . . and provide input to . . . .''
Section 431.12(e) will now state ``. . . to advise the State regarding
their experience with the Medicaid program, on matters of concern
related to policy development and matters related to the effective
administration of the Medicaid program.''
6. MAC and BAC Administration (Sec. 431.12(f))
We proposed to add new paragraph Sec. 431.12(f), MAC and BAC
administration, to provide an administrative framework for the MAC and
BAC that ensures transparency and a meaningful feedback loop to the
public and among the members of the committee and council.\44\
---------------------------------------------------------------------------
\44\ ``Medicaid Program; Ensuring Access to Medicaid Services,''
(88 FR 27960, 27920).
---------------------------------------------------------------------------
Specifically, in new paragraph (f)(1), we proposed that State
agencies would be required to develop and post publicly on their
website bylaws for governance of the MAC and BAC, current lists of MAC
and BAC memberships, and past meeting minutes for both the committee
and council. In paragraph (f)(2), we proposed that State agencies would
be required to develop and post publicly a process for MAC and BAC
member recruitment and selection along with a process for the selection
of MAC and BAC leadership. In paragraph (f)(3), we proposed that State
agencies would be required to develop, publicly post, and implement a
regular meeting schedule for the MAC and BAC. The proposed
[[Page 40559]]
requirement specified that the MAC and BAC must each meet at least once
per quarter and hold off-cycle meetings as needed. In paragraph (f)(4),
we proposed requiring that that at least two MAC meetings per year must
be opened to the public. For the MAC meetings that are open to the
public, the meeting agenda would be required to include a dedicated
time for public comment to be heard by the MAC. None of the BAC
meetings were required to be open to the public unless the State's BAC
members decided otherwise. We also proposed that the State ensure that
the public is provided adequate notice of the date, location, and time
of each public MAC meeting and any public BAC meeting at least 30
calendar days in advance. We solicited comment on this approach. In
paragraph (f)(5), we proposed that States would be required to offer
in-person, virtual, and hybrid attendance options including, at a
minimum telephone dial-in options at the MAC and BAC meetings for its
members to maximize member participation at MAC and BAC meetings. If
the MAC or BAC meeting was deemed open to the public, then the State
must offer at a minimum a telephone dial-in option for members of the
public.
With respect to in-person meetings, we proposed in paragraph (f)(6)
that States would be required to ensure that meeting times and
locations for MAC and BAC meetings were selected to maximize
participant attendance, which may vary by meeting. For example, States
may determine, by consulting with their MAC and BAC members, that
holding meetings in various locations throughout the State may result
in better attendance. In addition, States may ask the committee and
council members about which times and days may be more favorable than
others and hold meetings at those times accordingly. We also proposed
that States use the publicly posted meeting minutes, which lists
attendance by members, as a way to gauge which meeting times and
locations garner maximum participate attendance.
Finally, in paragraph (f)(7), we proposed that State agencies were
required to facilitate participation of beneficiaries by ensuring that
meetings are accessible to people with disabilities, that reasonable
modifications are provided when necessary to ensure access and enable
meaningful participation, that communication with individuals with
disabilities is as effective as with others, that reasonable steps are
taken to provide meaningful access to individuals with Limited English
Proficiency, and that meetings comply with the requirements at Sec.
435.905(b) and applicable regulations implementing the ADA, section 504
of the Rehabilitation Act, and section 1557 of the Affordable Care Act
at 28 CFR part 35 and 45 CFR parts 84 and 92.
Interested parties' feedback and recent reports <SUP>45 46</SUP>
published on meaningful beneficiary engagement illuminate the need for
more transparent and standardized processes across States to drive
participation from key interested parties and to facilitate the
opportunity for participation from a diverse set of members and the
community. Further, we believe that in order for the State to comply
with the language of section 1902(a)(4)(B) of the Act, which requires a
State plan to meaningfully engage Medicaid beneficiaries and other low-
income people in the administration of the plan, it needs to be
responsive to the needs of its beneficiaries. To be responsive to the
needs of its beneficiaries, the State needs to be able to gather
feedback from a variety of people that touch the Medicaid program, and
the MAC and BAC will serve as a vehicle through which States can obtain
this feedback.
---------------------------------------------------------------------------
\45\ Resources for Integrated Care and Community Catalyst,
``Listening to the Voices of Dually Eligible Beneficiaries:
Successful Member Advisory Councils'', 2019. Retrieved from <a href="https://www.resourcesforintegratedcare.com/listening_to_voices_of_dually_eligible_beneficiaries/">https://www.resourcesforintegratedcare.com/listening_to_voices_of_dually_eligible_beneficiaries/</a>.
\46\ Centers for Medicare & Medicaid Services, Person & Family
Engagement Strategy: Sharing with Our Partners. Retrieved from:
https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-
Instruments/QualityInitiativesGenInfo/Downloads/Person-and-Family-
Engagement-Strategic-Plan-12-12-
16.pdf#:~:text=person%E2%80%99s%20priorities%2C%20goals%2C%20needs%20
and%20values.%E2%80%9D%20Using%20these,to%20guide%20all%20clinical%20
decisions%20and%20drives%20genuine.
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We acknowledge that interested parties may face a range of
technological and internet accessibility limitations, and proposed
requiring that, at a minimum, States provide a telephone dial-in option
for MAC and BAC meetings. While we understand that in-person
interaction can sometimes assist in building trusted relationships, we
also recognize that accommodations for members and the public to
participate virtually is important, particularly since the beginning of
the COVID-19 pandemic. We solicited comment on ways to best strike this
balance.
We received public comments on these proposals. The following is a
summary of the comments we received and our responses.
Comment: We received many comments expressing broad support of
Sec. 431.12(f)(1) proposals requiring States to post publicly
information on the MAC and BAC (bylaws, meeting minutes). The
commenters noted that transparency plays an important role in promoting
multi-directional accountability and could also help ensure the success
of the MAC and BAC. While commenters were supportive, they also
recommended that States consider their Medicaid communities'
communication access needs, including cultural competency and
linguistic needs, when posting these materials to their websites.
Response: We agree with commenters that States should take steps to
ensure that any publicly posted materials are accessible to the various
interested parties that comprise their Medicaid community.
Comment: We received a few comments asking us to reconsider the
requirement of having States to post their BAC membership list on their
websites. Several commenters suggested that States should give BAC
members the choice of being publicly identified.
Response: We thank commenters for raising this issue, as we want to
avoid any situation where a Medicaid beneficiary, family member or
caregiver, does not want to be publicly identified. In response to
these comments, we are updating and finalizing the proposed regulations
to permit BAC members to choose whether to be publicly identified in
materials such as membership lists and meeting minutes. If BAC members
choose not to be identified in public materials, they can be referred
to as BAC member 1, BAC member 2 and so on. Specifically, we are
updating and finalizing the proposed language under new paragraph Sec.
431.12(f)(1) to state, ``Develop and publish by posting publicly on its
website, bylaws for governance of the MAC and BAC along with a current
list of members . . . States will give BAC members the option to
include their names on the membership list and meeting minutes that
will be posted publicly.''
Comment: We received comments supporting the Sec. 431.12(f)(2)
requirement of having States publicly post their process for
recruitment and selection. Commenters emphasized that these processes
must be inclusive and reflect the diversity of their State's Medicaid
community and beneficiaries. Other commenters asked for CMS to provide
guidance or best practices on how to recruit members, as well as
marketing best practices and the preferred format for print and audio
materials.
Response: We agree that States should develop recruitment
strategies that will result in identifying members that are
[[Page 40560]]
representative of a State's Medicaid community and beneficiaries.
However, we have kept the requirements flexible to be cognizant of the
fact that States can experience challenges in recruiting Medicaid
beneficiaries to serve on the BAC. We also encourage States to examine
best practices from entities that specialize in marketing, recruitment,
and the accessibility of published materials as outlined on
<a href="http://Digital.gov">Digital.gov</a>.\47\
---------------------------------------------------------------------------
\47\ <a href="https://digital.gov/resources/an-introduction-to-accessibility/?dg">https://digital.gov/resources/an-introduction-to-accessibility/?dg</a>.
---------------------------------------------------------------------------
Comment: We received some comments asking that States have a
process for identifying conflicts of interest when making member
selections.
Response: We agree that avoiding conflicts of interest is
important, and we encourage States to establish conflict of interest
policies, to be documented in the MAC/BAC bylaws or other organizing
documents that govern the membership and operations of the MAC/BAC, and
to ensure these policies are respected when selecting MAC/BAC members.
Since MAC and BAC membership represent a variety of backgrounds and
interest relevant to Medicaid, we also believe that building in a time
for conflict-of-interest disclosure into each meeting's agenda is
important. Specifically, under new Sec. 431.12(f)(3) we are now adding
that each MAC and BAC meeting agenda should have time set aside for
members to disclose any matters that are not incompatible with their
participation on the MAC and/or BAC under the State's conflict of
interest policy, but which nevertheless could give rise to a perceived
or actual conflict of interest and therefore should be disclosed. We
also believe our requirements for MAC and BAC meetings, including the
posting of meeting minutes and membership lists, will provide the
public and States with the transparency needed to know if a conflict of
interest (perceived, apparent, or actual) occurred during a meeting.
Comment: We received comments regarding the requirement in Sec.
431.12(f)(3) for both the MAC and BAC to each meet at a minimum of once
quarterly. Commenters noted the number of meetings could pose a burden
to the States and members. Several commenters suggested that CMS allow
Medicaid agencies to hold meetings in a way that matches their
administrative resources and goals.
Response: We selected a quarterly meeting versus a monthly meeting
schedule for the MAC and BAC because we believe it will provide States
with more flexibility in determining when to meet. For example, rather
than having the MAC and BAC members meeting every month (12 times
annually), we reduce the time commitment for members by having the
State select which month per quarter works best for the MAC and BAC
members (4 times annually). Further, the goal of the MAC and BAC is to
advise the State on matters related to policy development and to the
effective administration of the Medicaid program. We believe that
holding a quarterly meeting, as a minimum, allows States to integrate
their Medicaid community's voice into the effective administration of
the Medicaid program in a way that is timely and meaningful. Further,
we believe that holding quarterly meetings would result in the least
amount of burden for States. Holding more meetings per year would
likely result in additional strain of time and resources for the State
and its members. Holding meetings less frequently than quarterly would
not assist the timely integration of the community voice into the
administration of the Medicaid program. We also strive to further
reduce the burden to MAC and BAC members by structuring the meeting
requirements in a way that allows States to select non-traditional
meeting times and to use different telecommunications options (for
example, online meetings) for its meetings which would eliminate
members' commuting times to meetings.
Comment: We received several comments about new Sec. 431.12(f)(4)
in support of the requirement that each MAC meeting must have a public
comment period, citing the importance of all interested parties to be
able to share feedback. Additionally, a few commenters asked that
States also have a process to accept input from interested parties
while developing MAC agendas.
Response: States will have the flexibility to develop the MAC
agendas in accordance with their own processes and procedures. We
encourage commenters to work with their State regarding those
processes.
Comment: A couple of commenters suggested that all MAC and BAC
meetings be open to the public.
Response: We place great importance on meeting transparency, but we
also believe that States may need the flexibility to keep closed some
of their meetings each year. The proposed requirement in Sec.
431.12(f)(4) related to BAC meetings notes that BAC meetings are not
required to be open to the public unless the State and the BAC members
decide otherwise. It is important for States to create a dedicated
space for this group of Medicaid beneficiaries and people with lived
Medicaid experience to share their interactions with and perceptions of
the Medicaid program. Having a comfortable, supportive, and trusting
environment will encourage members to speak freely on matters most
important to them. We note that in order to support overall
transparency, we proposed that the meeting minutes of the BAC meetings
be required to be posted online and MAC members who are also on the BAC
will share input from the BAC with the broader MAC.
Comment: We received comments in response to our request for
comments about in-person and virtual attendance options for the MAC and
BAC meetings. The comments emphasized the need for States to offer both
in-person and virtual attendance options. One commenter questioned if
the proposed requirement meant that offering an in-person attendance
option was a requirement for each meeting.
Response: We thank commenters for responding to our request for
comments. In response to those comments, we are updating new Sec.
431.12(f)(5) to list the different types of meeting options.
Specifically, Sec. 431.12(f)(5) states, ``Offer a rotating, variety of
meeting attendance options. These meeting options are: all in-person
attendance, all virtual attendance, and hybrid (in-person and virtual)
attendance options. Regardless of which attendance type of meeting it
is, States are required to always have, a minimum, telephone dial-in
option at the MAC and BAC meetings for its members.'' For the commenter
who questioned if States had to always provide in-person attendance
options, we are clarifying that if the meeting is designated as a
virtual-only meeting, States do not need to have in-person attendance.
Comment: One commenter suggested we add a requirement for meetings
to be held both during and after work hours.
Response: In new Sec. 431.12(f)(6), we require that States ensure
that the meeting times selected for MAC and BAC meetings maximize
member attendance. We encourage States to consider working hours and
the impact on their MAC and BAC membership, as appropriate.
Comment: Several commenters expressed broad support for the
proposal to ensure that MAC and BAC meetings are accessible by people
with disabilities and Limited English Proficiency (LEP). Commenters
also provided suggestions to better ensure meaningful participation,
such as making sure States have available: interpreter services,
American Sign Language translation services, closed captioning for
virtual meeting, and
[[Page 40561]]
making materials available in plain language.
Response: As reflected in Sec. 431.12(f)(7), we agree that MAC and
BAC members with disabilities and LEP should have access to the types
of supports needed to meaningfully engage in meetings. We have updated
the relevant Federal requirements for States to meet in this final
rule.
Comment: One commenter requested that CMS clarify what is meant by
the phrase, ``that reasonable steps are taken to provide meaningful
access to individuals with Limited English Proficiency . . . .''
Response: Title VI of the Civil Rights Act requires recipients of
Federal financial assistance, including State Medicaid programs, to
take reasonable steps to provide meaningful access to their programs or
activities for individuals with Limited English Proficiency.\48\
Section 1557 of the Affordable Care Act similarly requires recipients
of Federal financial assistance to take reasonable steps to provide
meaningful access to their health programs or activities for
individuals with Limited English Proficiency, and the implementing
regulation requires the provision of interpreting services and
translations when it is a reasonable step to provide meaningful
access.\49\
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\48\ Lau v. Nichols, 414 U.S. 563, 566 (1974) (interpreting
Title VI and its implementing regulations to require a school
district with students of Chinese origin with limited English
proficiency to take affirmative steps to provide the students with a
meaningful opportunity to participate in federally funded
educational programs).
\49\ 45 CFR 92.101; see also<a href="https://www.hhs.gov/civil-rights/for-providers/laws-regulations-guidance/guidance-federal-financial-assistance-title-vi/index.html">https://www.hhs.gov/civil-rights/for-providers/laws-regulations-guidance/guidance-federal-financial-assistance-title-vi/index.html</a>.
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After consideration of public comments, we are finalizing Sec.
[thinsp]431.12(f) as proposed with:
<bullet> Language modifications to reflect the new name of the BAC.
<bullet> Updates to Sec. 431.12(f)(1) to now state, ``States will
also post publicly the past meeting minutes of the MAC and BAC
meetings, including a list of meeting attendees. States will give BAC
members the option to include their names in the membership list and
meeting minutes that will be posted publicly.''
<bullet> Updates to Sec. 431.12(f)(3) to state, ``Each MAC and BAC
meeting agenda must include a time for members and the public (if
applicable) to disclose conflicts of interest.''
<bullet> Updates to Sec. 431.12(f)(4) to move one sentence up to
be the new second sentence and the deletion of a repetitive sentence so
that third sentence now reads as, ``The public must be adequately
notified of the date, location, and time of each public MAC meeting and
any public BAC meeting at least 30 calendar days in advance of the date
of the meeting.''
<bullet> Updates to Sec. 431.12(f)(5) to state, ``Offer a
rotating, variety of meeting attendance options. These meeting options
are: all in-person attendance, all virtual attendance, and hybrid (in-
person and virtual) attendance options. Regardless of which attendance
type of meeting it is, States are required to always have at a minimum,
telephone dial-in option at the MAC and BAC meetings for its members.''
<bullet> Updates to paragraph (f)(7) to reflect additional Federal
requirements (adding reference to the Title VI of the Civil Rights Act
of 1964). The sentence will now state, ``. . . that reasonable steps
are taken to provide meaningful access to individuals with Limited
English Proficiency, and that meetings comply with the requirements at
Sec. 435.905(b) of this chapter and applicable regulations
implementing the ADA, Title VI of the Civil Rights Act of 1964, section
504 of the Rehabilitation Act, and section 1557 of the Affordable Care
Act at 28 CFR part 35 and 45 CFR parts 80, 84 and 92, respectively.''
7. MAC and BAC Participation and Scope (Sec. 431.12(g))
We proposed to replace former paragraph (e) Committee
participation, with new paragraph (g) MAC and BAC Participation and
Scope. The original paragraph (e), Committee participation, required
that the MCAC must have opportunity for participation in policy
development and program administration, including furthering the
participation of beneficiary members in the agency program.
In new paragraph Sec. 431.12(g), we proposed and are finalizing
the expansion of the types of topics which provide the MAC and BAC
should advise to the State. The list of topics we proposed included at
a minimum topics related to: (1) addition and changes to services; (2)
coordination of care; (3) quality of services; (4) eligibility,
enrollment, and renewal processes; (5) beneficiary and provider
communications by State Medicaid agency and Medicaid managed care
plans; (6) cultural competency, language access, health equity and
disparities and biases in the Medicaid program; or (7) other issues
that impact the provision or outcomes of health and medical services in
the Medicaid program as identified by the MAC, BAC or State.
In researching States' MCACs, we know that some already use the
MCACs advice on a variety of topics relating to the effective and
efficient administration of the Medicaid program. With these changes,
we aim to strike a balance that reflects some States' current practices
without putting strict limitations on specific topics for discussion in
a manner that would constrict flexibility for all States. Broadening
the scope of the topics that the MAC and BAC discuss will benefit the
State by giving greater insight into how it is currently delivering
coverage and care for its beneficiaries and thereby assist in
identifying ways to improve the way the Medicaid program is
administered.
The State will use this engagement with the MAC and BAC to ensure
that beneficiaries' and other interested parties' voices are considered
and to allow the opportunity to adjust course based on the advice
provided by the committee and council members. The State will base
topics of discussion on State need and will determine the topics in
collaboration with the MAC and BAC to address matters related to policy
development and matters related to the effective administration of the
Medicaid program. In finalizing the proposals, we reviewed the wording
for this requirement closer. When listing the types of topics on which
the MAC and BAC should advise to the State, we used the term ``or''.
However, using the term ``or'' does not represent the intention behind
the regulation. The MAC or BAC should not be limited to advising the
State on one topic at a time. Our intent is that the MAC and BAC, in
collaboration with the State, should be able to provide recommendations
on all or any of the subset of the topics listed. We clarify this
intention in this final rule by making a technical change to replace
the word ``and'' with the word ``or'' in the list of the types of
topics on which the MAC and BAC should advise the State.
We received public comments on these proposals. The following is a
summary of the comments we received and our responses.
Comment: As noted in other sections, we received a few comments
asking CMS to clarify the advisory authority of the MAC and BAC, noting
that language fluctuated between advisory and experiential feedback.
Response: As discussed earlier with respect to Sec. 431.12(a), the
role of the MAC and BAC is to advise the State Medicaid agency. In
reviewing the language proposed in Sec. 431.12(g), we see similar
opportunities where CMS can refine its wording to make clear the
advisory roles that the MAC and BAC hold. The primary role of the MAC
and BAC is to advise the State Medicaid agency on policy development
and on
[[Page 40562]]
matters related to the effective administration of the Medicaid
program. By replacing the wording in Sec. 431.12(g) from ``provide
recommendations'' to ``advise'' we are being consistent with the
wording used in similar updates made in this final rule and also making
clear that our intention is for the MAC and BAC to serve in an advisory
capacity to the State.
Comment: All commenters who addressed Sec. 431.12(g) supported the
change in the MAC and BAC scope. The majority of those commenters also
suggested additional topics for which the MAC and BAC should advise the
State. These topics include getting feedback on Secret Shopper studies,
external quality organization reports, consumer facing materials,
enrollment materials, implementation of integrated programs for dually
eligible individuals, rate reviews, and annual medical loss ratio
report. We also received a comment noting the importance of access to
services with a request that it be added it to the list of topics.
Response: We appreciate the support to the proposed changes. We
clarify that the categories of topics we named in this section were
selected as examples because they represented far-reaching parameters
related to the effective administration of the Medicaid program. We
believe that the proposal we are finalizing in this final rule allows
for a broad interpretation of the topics that are within scope while
leaving the ultimate decision on which topics the MAC and BAC will
advise on to the MAC, BAC, and State. We encourage commenters to work
with their States to define the topics that will be discussed at the
MAC and BAC. Finally, we agree that specifically mentioning access to
services is important, as it represents a key topic area of this
regulation. Therefore, we are redesignating the proposed Sec.
431.12(g)(7) as (g)(8) and adding a new Sec. 431.12(g)(7), access to
services.
After consideration of public comments, we are finalizing Sec.
431.12(g) as proposed with:
<bullet> Language modifications to reflect the new name of the BAC.
<bullet> Replacing the wording at Sec. 431.12(g) ``to participate
in and provide recommendations'' with ``advise'' so as to clarify the
advisory role of the MAC and BAC.
<bullet> Conforming edits to replacing the term State Medicaid
Director at Sec. 431.12(g) with the term, ``director of the single
State Agency for the Medicaid program.''
Language modifications to Sec. 431.12(g)(5) to replace ``managed
care plan'' with ``MCOs, PIHPs, PAHPs, PCCM entities or PCCMs as
defined in Sec. 438.2.''
<bullet> Redesignating and finalizing proposed Sec. 431.12(g)(7)
as (g)(8) and adding a new Sec. 431.12(g)(7), ``access to services.''
<bullet> Replacing the word ``or'' with the word ``and'' after
431.12(g)(7), access to services.
8. State Agency Staff Assistance, Participation, and Financial Help
(Sec. 431.12(h))
Under Sec. 431.12 of the current regulation, paragraph (f)
Committee staff assistance and financial help, the State was required
to provide the committee with--(1) Staff assistance from the agency and
independent technical assistance as needed to enable it to make
effective recommendations; and (2) Financial arrangements, if
necessary, to make possible the participation of beneficiary members.
In the proposed rule, we proposed to redesignate previous paragraph
Sec. 431.12(f) to new paragraph (h) and expand upon existing State
responsibilities for managing the MAC and BAC regarding staff
assistance, participation, and financial support. The changes we
proposed and are finalizing to new paragraph (h) are for the State to
provide staff to support planning and execution of the MAC and the BAC
to include: (1) Recruitment of MAC and BAC members; (2) Planning and
execution of all MAC and BAC meetings; and (3) The provision of
appropriate support and preparation (providing research or other
information needed) to the MAC and BAC members who are Medicaid
beneficiaries to ensure meaningful participation. These tasks include:
(i) Providing staff whose responsibilities are to facilitate MAC and
BAC member engagement; (ii) Providing financial support, if necessary,
to facilitate Medicaid beneficiary engagement in the MAC and the BAC;
and (iii) Attendance by at least one staff member from the State
agency's executive staff at all MAC and BAC meetings.
The overlap of the current regulation with our proposed changes
will mean much of the work to implement is already occurring. We are
not changing the existing financial support requirements. We understand
from States and other interested parties that many States already
provide staffing and financial support to their MCACs in ways that meet
or go beyond what we require through our updated requirements. We
believe that expanding upon the current standards regarding State
responsibility for planning and executing the functions of the MAC and
BAC will ensure consistent and ongoing standards to further
beneficiaries' and other interested parties' engagement. For example,
we know that when any kind of interested parties council meets, all
members of that council need to fully understand the topics being
discussed in order to meaningfully engage in that discussion. This is
particularly relevant when the topics of discussion are complex or
based in specific terminology as Medicaid related issues often can be.
We believe that when States provide their MACs and BACs with
additional staffing support that can explain, provide background
materials, and meet with the members in preparation for the larger
discussions, the members have a greater chance to provide more
meaningful feedback and be adequately prepared to engage in these
discussions. The proposed changes to the existing requirements seek to
create environments that support meaningful engagement by the members
of the MAC and the BAC, whose feedback can then be used by States to
support the efficient administration of their Medicaid program. We
anticipate providing additional guidance on model practices,
recruitment strategies, and ways to facilitate beneficiary
participation, and we solicited comments on effective strategies to
ensure meaningful interested parties' engagement that in turn can
facilitate full beneficiary participation.
Further, the proposed changes to the requirement for beneficiary
support, including financial support, are similar to the original MCAC
requirements. For example, using dedicated staff to support beneficiary
attendance at both the MAC and BAC meetings and providing financial
assistance to facilitate meeting attendance by beneficiary members are
similar to the current regulations. Staff may support beneficiary
attendance through outreach to the Medicaid beneficiary MAC and BAC
members throughout the membership period to provide information and
answer questions; identify barriers and supports needed to facilitate
attendance at MAC and BAC meetings; and facilitate access to those
supports.
In the proposed rule, we proposed to add a new requirement that at
least one member of the State agency's executive staff attend all MAC
and BAC meetings to provide an opportunity for beneficiaries and
representatives of the State's leadership to interact directly.
We received public comments on these proposals. The following is a
[[Page 40563]]
summary of the comments we received and our responses.
Comment: Many commenters supported the modifications proposed at
Sec. 431.12(h), but they emphasized the importance of requiring States
to appropriately compensate members that are beneficiaries for their
participation. The comments noted that there should be financial
compensation to beneficiary members for the time spent on BAC
activities, as well as financial reimbursement for any travel, lodging,
meals, and childcare associated with their participation in the BAC
and/or MAC. Commenters also asked CMS to exclude the value of any
financial compensation paid to members for their participation in the
MAC and/or BAC from consideration in determining eligibility for
Medicaid. A few commenters expressed that the term ``if necessary''
should be dropped from the regulatory language, noting that States
should offer reimbursement to all participating Medicaid beneficiaries.
Response: Under the policies we are finalizing at Sec.
431.12(h)(3)(ii), States will have the ability to reimburse all
beneficiaries to facilitate Medicaid beneficiary engagement in the MAC
and the BAC. This can include, at the State's discretion, reimbursement
for travel, lodging, meals, and childcare. We did not remove the words
``if necessary'' to account for Medicaid beneficiaries who may not need
financial support to engage in the MAC and BAC activities.
We are also clarifying the circumstances in which compensation
provided to beneficiary members would be considered income for Medicaid
eligibility purposes. For both MAGI and non-MAGI methodologies,
reimbursements (such as for meals eaten away from home, mileage, and
lodging) do not count as income, but other compensation (such as a
daily stipend) for participating in an advisory council is countable
income under applicable financial methodologies. For non-MAGI
methodologies, the State could submit a SPA to CMS to disregard such
stipends or other countable income under section 1902(r)(2) of the Act.
Other means tested programs may have other rules for counting income,
and we encourage States to assess those rules and advise Medicaid
beneficiary members of the MAC and BAC accordingly.
Comment: Many commenters in support of the proposed requirements in
Sec. 431.12(h)(3) noted how critical it will be for States to provide
appropriate technical support and preparation to MAC and BAC members
who are also Medicaid beneficiaries in order to ensure their full and
active participation in discussions. Commenters shared a variety of
suggestions for the type of support that can help prepare these members
to feel comfortable fully and meaningfully engaging in the process. The
suggestions made by the commenters included specific areas to be
addressed in the trainings and materials that the State agency staff
provides, such as providing background materials in plain language,
implementing techniques to empower members to participate successfully
and equally in MAC and BAC discussions, supporting health literacy
needs, and training members on digital access to meetings/technology.
Additionally, some commenters suggested that States be required to
provide MAC and BAC members with a mentor and training on the Medicaid
program throughout the length of their membership term. Several
commenters suggested that States be required to select an independent
(outside of the Medicaid agency) policy advisor or technical expert to
provide BAC members with support in understanding Medicaid topics and
policy.
Response: We appreciate the support for our proposals and
understand the interest in ensuring support for beneficiary members of
the MAC and BAC. The underpinning of meaningful member engagement is
that members have a substantial understanding of the topics to be
discussed. We agree with commenters' suggestions in general, but given
the differences in States' structures and resources, we believe there
is a benefit in leaving the decision of how best to provide training
and support to the MAC and BAC members to the States. As we noted
earlier in the preamble, CMS will post publicly a MAC best practices
toolkit.
Comment: We received a couple of comments asking CMS to clarify the
role of the State Medicaid agency staff attending the MAC and BAC
meetings.
Response: The purpose of requiring a member from the State Medicaid
agency's executive staff to attend MAC and BAC meetings is to provide
an opportunity for beneficiaries and representatives of the State's
Medicaid agency leadership to interact directly. The role of the
executive staff person is not to be a MAC/BAC co-chair, nor to
facilitate these meetings. The executive staff person's role is to hear
directly from and interact with Medicaid beneficiaries and with the
wider Medicaid community in that State. The person attending generally
will be expected to share take-aways from these meetings with State's
Medicaid agency leadership.
After consideration of public comments, we are finalizing Sec.
431.12(h) as proposed with:
<bullet> Language modifications to reflect the new name of the BAC.
<bullet> Conforming edits to replace the word ``State Agency'' with
the ``single State agency for the Medicaid program'' in several places
across Sec. 431.12(h).
Language modifications to Sec. 431.12(h)(3) to state, ``. . . MAC
and BAC members who are Medicaid beneficiaries . . .''
9. Annual Report (Sec. 431.12(i)).
In the spirit of transparency and to ensure compliance with the
updated regulations, we added in the proposed rule \50\ and are
finalizing new paragraph Sec. 431.12(i) to require that the MAC, with
support from the State and in accordance with the requirements updated
at this section, must submit an annual report to the State. The State
must review the report and include responses to the recommended
actions. The State must also: (1) provide MAC members with final review
of the report; (2) ensure that the annual report of the MAC includes a
section describing the activities, topics discussed, and
recommendations of the BAC, as well as the State's responses to the
recommendations; and (3) post the report to the State's website. In the
proposed rule, we noted that States had one year to implement the
annual report requirement and we sought comment on that timeline. In
finalizing the proposals, we reviewed these requirements closer. It is
our intention that the MAC is required to submit an annual report to
the State. We clarify this intention in this final rule by making a
technical change to add the word ``must'' which was unintentionally
omitted in the proposed rule.
---------------------------------------------------------------------------
\50\ ``Medicaid Program; Ensuring Access to Medicaid Services,''
(88 FR 27960, 27971).
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The proposed requirements of this paragraph seek to ensure
transparency while also facilitating a feedback loop and view into the
impact of the MAC and BAC's recommendations. We solicited comment on
additional ways to ensure that the State can create a feedback loop
with the MAC and BAC.
We received public comments on these proposals. The following is a
summary of the comments we received and our responses.
Comment: Several commenters supported the proposed requirements in
new Sec. 431.12(i), of having States submit an annual report that
describes activities of the MAC and BAC, including the topics discussed
and their
[[Page 40564]]
recommendations. Commenters noted that requiring these reports is
critical to building trust as well as ensuring transparency and
accountability among the State, MAC, and BAC members. In addition,
several commenters agreed with the annual report requirement, but they
also wanted CMS to stipulate the contents of the annual report. One
commenter suggested that States' annual reports include results from
anonymous surveys of MAC and BAC members indicating whether these
members felt they have been listened to and if they felt the State used
members' feedback.
Response: We appreciate the support for the proposed regulations.
We carefully considered the benefits of national uniformity of the
contents of an annual report. However, due to the differences in how
States may approach setting priorities, creating their MAC and BACs,
and the varying level of resources, we believe that States should have
the flexibility to adopt an approach to the content of the annual
report that works best within their State.
Comment: A few commenters asked CMS to either further require that
the BAC issue its own set of reports and recommendations independently
or as part of the MAC report.
Response: While we fully understand and agree with the importance
of the BAC and ensuring that their voices are heard, we believe that
requiring States to create a second BAC-only annual report would add
administrative burden. The proposed regulatory language requires that
States create an annual report that reflects the activities of both the
MAC and BAC. Since the annual report is required to contain the
priorities and activities of both the MAC and BAC, there is no need for
a separate BAC-only report.
Comment: There were a handful of commenters that wanted CMS to
reconsider the report requirement because they thought the resource
burden was too great to develop an annual report, the reporting
requirement lacked meaning, or they wanted CMS to allow Medicaid
agencies to set their own cadence to the reports.
Response: We understand the concerns of the commenters, but we have
written the annual report requirement broadly to ensure maximal
flexibility for States to meet this requirement. It is critical that
States document the work and key outcomes of the MAC and BAC. Further,
we believe the annual report requirement supports the implementation of
the principles of bi-directional feedback, transparency, and
accountability on the part of the State, MAC, and BAC. In response to
comments about burden to States, we have adjusted the proposed
applicability date for this requirement of 1 year and are now
finalizing it as, States have 2 years from July 9, 2024 to finalize the
first annual MAC report. After the report has been finalized, States
will have 30 days to post the annual report.
Comment: A few commenters asked CMS to require States to conduct
additional activities related to monitoring the MAC and BAC, in
addition to the annual report. The commenters' suggestions included:
implementing a corrective action plan for States that failed to meet
the MAC requirements; requiring process evaluations on the experiences
of the MAC and BAC members be conducted and the findings be made
public; and requiring States to engage in program improvement
activities in response to the recommendations made by the MAC that
appear in the annual report.
Response: We carefully considered the benefits of requiring
additional studies and activities to be captured by States and included
in the annual report. However, we want to keep the parameters of our
expectations on the content of a State's annual report to be as broad
as possible to give each State the ability to create a report that will
help them best document the interested parties' engagement with the MAC
and the BAC and serve as a tool for helping advance programmatic goals
over time.
Comment: A couple of commenters requested CMS publish the annual
reports on its website.
Response: We thank the commenters for this suggestion. Currently,
we believe each respective State Medicaid agency's website to be the
most appropriate place for the annual reports to be published. However,
we will consider whether the needs of interested parties would be
better served with CMS collecting and publishing annual reports as
well.
Comment: A few commenters inquired about how CMS would provide
oversight on compliance with activities such as the annual report and
number of meetings requirements.
Response: We thank commenters for these questions. We are currently
assessing the most effective strategies with which to provide
oversight. As these requirements implement State plan requirements in
section 1902(a)(4) and (a)(19) of the Act, noncompliance with the
provisions of this final rule could result in a State plan compliance
action in accordance with Sec. 430.35.
After consideration of public comments, we are finalizing Sec.
431.12(i) as proposed with:
<bullet> Language modifications to reflect the new name of the BAC.
<bullet> Additional sentences at the end of Sec. 431.12(i)(3),
``States have 2 years from July 9, 2024 to finalize the first annual
MAC report. After the report has been finalized, States will have 30
days to post the annual report.''
10. Federal Financial Participation (Sec. 431.12(j))
In the current regulation, paragraph (g) Federal financial
participation, noted that FFP is available at 50 percent in
expenditures for the committee's activities. As noted in the proposed
rule, we are not making changes to, and thus are maintaining, the
current regulatory language on FFP from previous paragraph (g) to
support committee activities, to appear in new paragraph (j) with
conforming edits for the new MAC and BAC names.
We received public comments on these proposals. The following is a
summary of the comments we received and our responses.
Comment: We received a few comments about the newly proposed Sec.
431.12(j), encouraging CMS to offer a higher FFP than 50 percent. One
commenter suggested that 90 percent FFP would be ideal.
Response: For Medicaid, all States receive a statutory 50 percent
Federal matching rate for general administrative activities. States may
also receive higher Federal matching rates for certain administrative
activities, such as design, development, installation, and operation of
certain qualifying systems. Federal matching rates are established by
Congress, and CMS does not have the authority to change or increase
them.
After consideration of public comments, we are finalizing new
paragraph Sec. 431.12(j) as proposed with:
<bullet> Language modifications to reflect the new name of the BAC.
11. Applicability Dates Sec. 431.12(k)
For this final rule, we are adding new paragraph Sec. 431.12 (k)
Applicability dates. In the proposed rule, we noted that the
requirements of Sec. 431.12 would be effective 60 days after the
publication date of the final rule, although we established different
applicability dates by which States must implement certain provisions.
We then solicited comment on whether 1 year was too much or not enough
time for States to implement the updates in this regulation in an
effective manner. We understand that States may need to modify their
existing MCACs to reflect the finalized requirements for MACs and may
also need to create the BAC and recruit members to participate
[[Page 40565]]
if they do not already have a similar entity already in place.
We received public comments on proposed implementation timeline.
The following is a summary of the comments we received and our
responses.
Comment: We received several comments related to the implementation
timeframes specified in the MAC and BAC provisions of the proposed
rule. The majority of comments fell into two categories: commenters who
noted that 1 year should be sufficient to implement the required
changes; and commenters who suggested that CMS provide at least 2 years
for implementation. Other commenters suggested that CMS consider a
graduated approach that would allow States to demonstrate compliance
with the minimum 25 percent BAC crossover requirement over a period of
time. The commenters who requested additional time shared concerns
about States' many other ongoing priorities, workforce shortages, the
amount of time and resources it would take to set up the MAC and BAC,
and having enough time to submit budget requests to their legislature
so they can get the resources to support the required activities.
Response: We have carefully considered the comments received and
acknowledge that additional time for implementation of the requirements
could be beneficial for States given competing priorities, budgeting
and other challenges States may encounter. Additionally, we weighed the
request for a graduated approach to demonstrate compliance with a 25
percent BAC crossover requirement, and we agree that a graduated
approach will allow States a longer ramp-up time to modify their
current MCACs, as well as to set up the BAC and recruit members to
participate.
In the proposed rule, we proposed that States have 1 year from the
effective date of the final rule to recruit members, set up their MAC
and BAC, hold meetings, and submit their first annual report. Based on
public comment, we understand that 1 year is not enough time to
complete all of these activities. As a result, we are adding and
finalizing in this final rule a second implementation year. Based on
these changes, States would now recruit members and set up their MACs
and BACs during the first year implementation year. In the second
implementation year, States would hold the required MAC and BAC
meetings. At the end of that second implementation year, States would
summarize the information from the MAC and BAC activities and use that
information to complete an annual report. States would then fulfill the
annual report requirement by finalizing the report and posting the
annual report to their websites. This annual report would need to be
posted by States within 30 days of the report being completed.
Additionally, as noted in section II.A.4., and in response to
public comment asking for States to have a more graduated approach to
reach the requirement of having 25 percent of MAC members be from the
BAC, we are finalizing in this rule an extended implementation timeline
for this requirement. The finalized provision at Sec. 431.12(d)(1)
will require that, for the period from July 9, 2024 through July 9,
2025, 10 percent of the MAC members must come from the BAC; for the
period from July 10, 2025 through July 9, 2026, 20 percent of MAC
members must come from the BAC; and thereafter, 25 percent of MAC
members must come from the BAC. We developed this approach based on the
comments we received about competing State priorities and the time and
resources that a State would need to meet the new requirements.
Additionally, we understand States may face challenges with finding,
recruiting, and training beneficiary members to serve on the BAC.
Based on the comments received, we are changing two applicability
dates. We note in this new paragraph Applicability dates Sec.
431.12(k), that except as noted in paragraphs (d)(1) and (i)(3) of this
section, the requirements in paragraphs (a) through (j) are applicable
July 9, 2025.
B. Home and Community-Based Services (HCBS)
To address several challenges that we described in the proposed
rule (88 FR 27964 and 27965), we proposed both to amend and add new
Federal HCBS requirements to improve access to care, quality of care,
and beneficiary health and quality of life outcomes, while consistently
meeting the needs of all beneficiaries receiving Medicaid-covered HCBS.
The preamble of the proposed rule (88 FR 27971 through 27996) outlined
our proposed changes in the context of current law.
As we noted in the proposed rule (88 FR 27971), we have previously
received questions from States about the applicability of HCBS
regulatory requirements to demonstration projects approved under
section 1115 of the Act that include HCBS. As a result, we proposed
that, consistent with the applicability of other HCBS regulatory
requirements to such demonstration projects, the requirements for
section 1915(c) waiver programs and section 1915(i), (j), and (k) State
plan services included in the proposed rule would apply to such
services included in approved section 1115 demonstration projects,
unless we explicitly waive one or more of the requirements as part of
the approval of the demonstration project.
We proposed not to apply the requirements for section 1915(c)
waiver programs and section 1915(i), (j), and (k) State plan services
that we proposed in the proposed rule to the Program of All-Inclusive
Care of the Elderly (PACE) authorized under sections 1894 and 1934 of
the Act, as the existing requirements for PACE either already address
or exceed the requirements outlined in the proposed rule, or are
substantially different from those for section 1915(c) waiver programs
and section 1915(i), (j), and (k) State plan services.
We received public comments on these proposals for HCBS under the
Medicaid program. The following is a summary of the comments we
received and our responses. We discuss the comments we received related
to specific proposals, and our responses, in further detail throughout
the sections in this portion of the final rule (section II.B.).
Comment: Many commenters expressed general support for our efforts
to increase transparency and accountability in HCBS programs, and
ultimately improve access to Medicaid services. Commenters in
particular noted general support for our proposed provisions in this
section that are designed to support HCBS delivery systems through
improvements in data collection around waiting lists and service
delivery, enhancements to person-centered planning, standardization of
critical incident investigation and grievance process requirements, and
establishment of defined quality measures. While overall reaction to
the payment adequacy minimum performance level (discussed in section
II.B.5. of the proposed rule and this final rule) was mixed, many
commenters agreed that HCBS programs are facing shortages of direct
care workers that pose obstacles to beneficiaries' access to high-
quality HCBS.
Commenters also shared several ideas for ways we could improve
beneficiaries' access to, or the overall quality of, HCBS beyond the
provisions presented in the proposed rule.
Some commenters expressed concerns that the HCBS provisions we
proposed, when taken together, could present significant administrative
costs to States and, in some cases, to providers.
[[Page 40566]]
Response: We thank commenters for their support. Comments on
specific provisions that we proposed are summarized below, along with
our responses. We also appreciate the many thoughtful suggestions made
by commenters for other ways they believe HCBS could be improved beyond
what we proposed in the proposed rule. While comments that are outside
the scope of what we proposed in the proposed rule and not relevant are
not summarized in this final rule, we will take these recommendations
under consideration for potential future rulemaking.
We recognize that we must balance our desire to stimulate ongoing
improvements in HCBS programs with the need to give States, managed
care plans, and providers sufficient time to make adjustments and
allocate resources in support of these changes. After consideration of
comments we received, we are finalizing many of our proposals, some
with modifications. These modifications are discussed in this section
(section II.B.) of the final rule.
We also note that some commenters expressed general support for all
of the provisions in section II.B. of this rule, as well as for this
rule in its entirety. In response to commenters who supported some, but
not all, of the policies and regulations we proposed in the proposed
rule (particularly in section II.B related to HCBS), we are clarifying
and emphasizing our intent that each final policy and regulation is
distinct and severable to the extent it does not rely on another final
policy or regulation that we proposed.
While the provisions in section II.B. of this final rule are
intended to present a comprehensive approach to improving HCBS and
complement the goals expressed and policies and regulations being
finalized in sections II.A. (Medicaid Advisory Committee and
Beneficiary Advisory Group) and II.C. (Documentation of Access to Care
and Service Payment Rates) of this final rule, we intend that each of
them is a distinct, severable provision, as finalized. Unless otherwise
noted in this rule, each policy and regulation being finalized under
this section II.B is distinct and severable from other final policies
and regulations being finalized in this section or in sections II.A. or
II.C of this final rule, as well as from rules and regulations
currently in effect.
Consistent with our previous discussion earlier in section II. of
this final rule regarding severability, 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 action, it shall be
severable from this final rule, and from rules and regulations
currently in effect, and not affect the remainder thereof or the
application of the provision to other persons not similarly situated or
to other, dissimilar circumstances. For example, we intend that the
policies and regulations we are finalizing related to person-centered
planning and related reporting requirements (sections II.B.1 and
II.B.7. of this final rule) are distinct and severable from the
policies and regulations we are finalizing related to grievance system
(section II.B.2. of this final rule), and incident management system
and related reporting requirements (sections II.B.3 and II.B.7. of this
final rule). The standalone nature of the finalized provisions is
further discussed in their respective sections in this rule.
Comment: Several commenters addressed the relationship between the
proposed HCBS requirements and HCBS authorized under a section 1115
demonstration project. A few commenters requested clarification about
the application of the proposed HCBS requirements in this section to
services delivered under section 1115 authority. A few commenters
expressed concern about what they perceived was the exclusion of
services provided through a managed care delivery system under section
1115 demonstration authority. One commenter recommended only applying
the finalized rules to new section 1115 demonstration programs; in the
alternative, if applying the finalized requirements to current section
1115 demonstration programs, the commenter recommended that States
develop transition plans and be given a reasonable timeframe for
bringing their programs into compliance. A few commenters recommended
that we add a specific reference to section 1115 demonstration
authority of the Act in our proposed HCBS requirements (if finalized),
including at Sec. 438.72(b) (applying various finalized requirements
to managed care programs) and Sec. 441.302(k) (applying new payment
adequacy requirements to section 1915(c) waiver programs).
Response: We are confirming that, consistent with the applicability
of other HCBS regulatory requirements to such demonstration projects,
the requirements for section 1915(c) waiver programs and section
1915(i), (j), and (k) State plan services included in this final rule,
apply to such services included in approved section 1115 demonstration
projects, unless we explicitly waive one or more of the requirements as
part of the approval of the demonstration project. Further, we have not
identified a compelling reason to treat States operating section 1115
demonstration projects differently from States operating other HCBS
programs in terms of implementation, such as by requiring States with
section 1115 demonstration programs to develop transition plans (as was
recommended by one commenter). We also believe that the timeframes that
are finalized in this rule are reasonable and sufficient to allow all
States operating programs under all relevant authorities to come into
compliance. If States have specific questions or concerns regarding
compliance with the finalized requirements, we will provide assistance
as needed.
We note that we have already included references to managed care
delivery systems implemented under section 1115(a) of the Act in the
implementation requirements at Sec. Sec. 441.301(c)(3)(iii)
(implementing the person-centered planning process minimum performance
requirements), 441.302(a)(6)(iii) (implementing the critical incident
management system minimum performance requirements), 441.302(k)(8)
(implementing the payment adequacy minimum performance requirement),
441.311(f) (implementing reporting requirements), and 441.313(c)
(implementing the website transparency provision). We decline
commenters' recommendations that we include additional references to
section 1115 of the Act, as we believe doing so would be duplicative.
We will ensure that the approved standard terms and conditions of
States' section 1115 demonstration projects are clear that the States
must comply with all applicable HCBS requirements that we are
finalizing in this rule.
We did not receive any comments on our proposal not to extend HCBS
requirements that we are finalizing in this rule to PACE. We are
finalizing our proposal to not apply the requirements we are finalizing
in this rule for section 1915(c) waiver programs and section 1915(i),
(j), and (k) State plan services to PACE authorized under sections 1894
and 1934 of the Act.
1. Person-Centered Service Plans (Sec. Sec. 441.301(c), 441.450(c),
441.540(c), and 441.725(c))
Section 1915(c)(1) of the Act requires that services provided
through section 1915(c) waiver programs be provided under a written
plan of care (hereinafter referred to as person-centered service plans
or service plans). Existing Federal regulations at Sec. 441.301(c)
address the person-centered planning process and
[[Page 40567]]
include a requirement at Sec. 441.301(c)(3) that the person-centered
service plan be reviewed and revised, upon reassessment of functional
need, at least every 12 months, when the individual's circumstances or
needs change significantly, or at the request of the individual.
In 2014, we released guidance for section 1915(c) waiver programs
\51\ (hereinafter the 2014 guidance) that included expectations for
State reporting of State-developed performance measures to demonstrate
compliance with section 1915(c) of the Act and the implementing
regulations in 42 CFR part 441, subpart G through six assurances,
including assurances related to person-centered service plans. The 2014
guidance indicated that States should conduct systemic remediation and
implement a Quality Improvement Project when they score below an 86
percent threshold on any of their performance measures. We refer
readers to section II.B.1. of the proposed rule (88 FR 27972) for a
detailed discussion of the six assurances identified in the 2014
guidance.
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\51\ Modifications to Quality Measures and Reporting in Sec.
1915(c) Home and Community-Based Waivers. March 2014. Accessed at
<a href="https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-documents/3-cmcs-quality-memo-narrative_0_2.pdf">https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-documents/3-cmcs-quality-memo-narrative_0_2.pdf</a>.
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In the proposed rule (88 FR 27972 through 27975), we proposed a
different approach for States to demonstrate that they meet the
statutory requirements in section 1915(c) of the Act and the regulatory
requirements in 42 CFR part 441, subpart G, including the requirements
regarding assurances around service plans. We proposed this approach
based on feedback CMS obtained during various public engagement
activities conducted with States and other interested parties over the
past several years about the reporting discussed in the 2014 guidance,
as well as feedback received through a request for information (RFI)
\52\ we released in the spring of 2022. Through this feedback, many
States and interested parties expressed, and we identified, that there
is a need to standardize reporting and set minimum standards for HCBS.
We proposed HCBS requirements to establish a new strategy for
oversight, monitoring, quality assurance, and quality improvement for
section 1915(c) waiver programs, including minimum performance
requirements and reporting requirements for section 1915(c) waiver
programs. Further, as is discussed later in this section (section
II.B.1. of the rule), to ensure consistency and alignment across HCBS
authorities, we proposed to apply the proposed requirements for section
1915(c) waiver programs to section 1915(i), (j), and (k) State plan
services, as appropriate.
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\52\ 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 support for our proposals, we noted that under section
1902(a)(19) of the Act, States must provide safeguards to assure that
eligibility for Medicaid-covered care and services are determined and
provided in a manner that is consistent with simplicity of
administration and that is in the best interest of Medicaid
beneficiaries. While the needs of some individuals who receive HCBS may
be relatively stable over some time periods, individuals who receive
HCBS experience changes in their functional needs and individual
circumstances, such as the availability of natural supports or a desire
to choose a different provider, that necessitate revisions to the
person-centered service plan to remain as independent as possible or to
prevent adverse outcomes. Thus, the requirements to reassess functional
need and to update the person-centered service plan based on the
results of the reassessment, when circumstances or needs change
significantly or at the request of the individual, are important
safeguards that are in the best interest of beneficiaries because they
ensure that an individual's section 1915(c) waiver program services
change to meet the beneficiary's needs most appropriately as those
needs change.
We also noted that effective State implementation of the person-
centered planning process is integral to ensuring compliance with
section 2402 of the of the Patient Protection and Affordable Care Act
(Affordable Care Act) (Pub. L. 111-148, March 23, 2010). Section 2402
of the Affordable Care Act requires the Secretary of HHS to ensure that
all States receiving Federal funds for HCBS, including Medicaid,
develop HCBS systems that are responsive to the needs and choices of
beneficiaries receiving HCBS, maximize independence and self-direction,
provide support and coordination to facilitate the participant's full
engagement in community life, and achieve a more consistent and
coordinated approach to the administration of policies and procedures
across public programs providing HCBS.\53\
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\53\ Section 2402(a) of the Affordable Care Act--Guidance for
Implementing Standards for Person-Centered Planning and Self-
Direction in Home and Community-Based Services Programs. Accessed at
<a href="https://acl.gov/sites/default/files/news%202016-10/2402-a-Guidance.pdf">https://acl.gov/sites/default/files/news%202016-10/2402-a-Guidance.pdf</a>.
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Finally, we noted that since the release of the 2014 guidance, we
have received feedback from States, the HHS Office of Inspector General
(OIG), Administration for Community Living (ACL), and Office for Civil
Rights (OCR), and other interested parties on how crucial person-
centered planning is in the delivery of care and the significance of
the person-centered service plan for the assurance of health and
welfare for section 1915(c) waiver program participants that
underscored the need for the proposals.\54\
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\54\ Ensuring Beneficiary Health and Safety in Group Homes
Through State Implementation of Comprehensive Compliance Oversight.
U.S. Department of Health and Human Services, Office of the
Inspector General, Administration for Community Living, and Office
for Civil Rights. January 2018. Accessed at <a href="https://oig.hhs.gov/reports-and-publications/featured-topics/group-homes/group-homes-joint-report.pdf">https://oig.hhs.gov/reports-and-publications/featured-topics/group-homes/group-homes-joint-report.pdf</a>.
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To ensure a more consistent application of person-centered service
plan requirements across States and to protect the health and welfare
of section 1915(c) waiver participants, under our authority at sections
1915(c)(1) and 1902(a)(19) of the Act and section 2402(a)(1) and (2) of
the Affordable Care Act, we proposed several changes to our person-
centered service plan requirements in section II.B.1 of the proposed
rule (88 FR 27972 through 27975), as discussed in more detail in this
section of the final rule. First, we proposed revisions to Sec.
401.301(c)(3)(i) to clarify that: (1) States are required to ensure
person-centered service plans are reviewed and revised in compliance
with requirements set forth therein; and (2) changes to the person-
centered service plans are not required if the reassessment does not
indicate a need for changes. Second, we proposed to establish a minimum
performance level for States to demonstrate they meet the requirements
at Sec. 441.301(c)(3). Specifically, at Sec. 441.301(c)(3)(ii)(A), we
proposed to require that States demonstrate that a reassessment of
functional need was conducted at least annually for at least 90 percent
of individuals continuously enrolled in the waiver for at least 365
days. At Sec. 441.301(c)(3)(ii)(B) we proposed to require that States
demonstrate that they reviewed the person-centered service plan, and
revised the plan as appropriate, based on the results of the required
reassessment of functional need at least every 12 months for at least
90 percent of individuals continuously enrolled in the waiver for at
least 365 days. Finally, we proposed to apply the requirements at Sec.
441.301(c)(3) to section 1915(j), (k), and (i) State plan
[[Page 40568]]
services at Sec. Sec. 441.450(c), 441.540(c), and 441.725(c),
respectively.
We received public comments on these proposals. The following is a
summary of
[…truncated; see source link]Indexed from Federal Register on May 10, 2024.
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