CMS Releases The 'Ensuring Access to Medicaid Services Final Rule' (CMS-2442-F)

WASHINGTON—The Centers for Medicare & Medicaid Services released its Final Rule on "Ensuring Access to Medicaid Services" on Monday, April 22. Executive Order 14009 in 2021 established the policy objective to protect and strengthen Medicaid and the Affordable Care Act (ACA), and to make high-quality health care accessible and affordable for every American.^[1] In 2022, Executive Order 14070 directed agencies 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.^[2] 

The Access rule addresses critical dimensions of access across both Medicaid FFS and managed care delivery systems, including for HCBS. These improvements seek to 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 holistic access to care.

The table below provides highlights of the provisions included in the final rule:

Topic:	Final Rule:
(A) Medicaid Advisory Committee and Beneficiary Advisory Council	Renames and expands the scope of states’ Medical Care Advisory Committees. The renamed Medicaid Advisory Committees (MAC) will advise states on an expanded range of issues. Requires states to establish a Beneficiary Advisory Council (BAC) comprised of Medicaid beneficiaries, their families, and/or caregivers.  Establishes minimum requirements for MAC membership, including a requirement that 25% of the MAC members will be drawn from the BAC. Requires states to make information about the MAC and BAC activities publicly available including bylaws, meeting schedules, agendas, minutes, and membership lists.  Requires states to make at least two MAC meetings per year open to the public. These meetings must include a public comment period.  Requires states to provide staff to support the planning and execution of the MAC and BAC activities.  Requires states to create and publicly post an annual report summarizing MAC and BAC activities.
(B) Home- and Community-Based Services	Strengthens oversight of person‑centered service planning in HCBS. Requires that states meet nationwide incident management system standards for monitoring HCBS programs. Requires that states establish a grievance system for HCBS delivered through FFS.  Requires that in three years, states report on their readiness to collect data regarding the percentage of Medicaid payments for homemaker, home health aide, personal care, and habilitation services spent on compensation to the direct care workers furnishing these services; and in four years, states report on the percentage of Medicaid payments for homemaker, home health aide, personal care, and habilitation services spent on compensation to the direct care workers furnishing these services, subject to certain exceptions. Requires that, in six years, states generally ensure a minimum of 80% of Medicaid payments for homemaker, home health aide, and personal care services be spent on compensation for direct care workers furnishing these services, as opposed to administrative overhead or profit, subject to certain flexibilities and exceptions (referred to as the HCBS payment adequacy provision). The HCBS payment adequacy provision provides states the option to establish: (1) a hardship exemption based on a transparent state process and objective criteria for providers facing extraordinary circumstances and (2) a separate performance level for small providers meeting state-defined criteria based on a transparent state process and objective criteria. The HCBS payment adequacy provision also exempts the Indian Health Service and Tribal health programs subject to 25 U.S.C. 1641 from complying with its requirements. Requires states to report on waiting lists in section 1915(c) waiver programs; service delivery timeliness for personal care, homemaker, home health aide, and habilitation services; and a standardized set of HCBS quality measures. Promotes public transparency related to the administration of Medicaid‑covered HCBS through public reporting of quality, performance, and compliance measures.
(C) Fee-for-Service (FFS)	Requires states to publish all FFS Medicaid fee schedule payment rates on a publicly available and accessible website.Requires states to compare their FFS payment rates for primary care, obstetrical and gynecological care, and outpatient mental health and substance use disorder services to Medicare rates, and publish the analysis every two years. Requires states to publish the average hourly rate paid for personal care, home health aide, homemaker, and habilitation services, and publish the disclosure every two years. Requires states to establish an advisory group for direct care workers, beneficiaries, beneficiaries’ authorized representatives, and other interested parties to meet at least every two years, and advise and consult on payment rates paid to direct care workers for personal care, home health aide, homemaker, and habilitation services. Requires states to demonstrate access sufficiency through an initial analysis when submitting a state plan amendment with a rate reduction, or restructuring in circumstances that could result in diminished access, for all services. If the state does not meet the requirements of the initial analysis, they must perform an additional, more extensive analysis.

For more information, please see the final rule and a chart outlining the applicability dates for all regulatory changes. 

Additional information and resources on the final rule are available at: medicaid.gov/medicaid/access-care/index.html

For questions about the HCBS provisions, contact: HCBSAAccessRule@cms.hhs.gov.