[Federal Register Volume 80, Number 211 (Monday, November 2, 2015)]
[Proposed Rules]
[Pages 67377-67381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27696]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 447

[CMS-2328-NC]


Medicaid Program; Request for Information (RFI)--Data Metrics and 
Alternative Processes for Access to Care in the Medicaid Program

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Request for information.

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SUMMARY: In this request for information (RFI), we seek public input to 
inform the potential development of standards with regard to Medicaid 
beneficiaries' access to covered services under the Medicaid program. 
Specifically, we are interested in obtaining information on core access 
to care measures and metrics that could be used to measure access to 
care for beneficiaries in the Medicaid program (including in fee-for-
service and managed care delivery systems) and used to develop local, 
state and national thresholds and goals to inform and improve access in 
the program. We are also interested in feedback on approaches to using 
the metrics, which could include setting access goals and thresholds 
and formal processes for beneficiaries to raise access concerns.

DATES: Comment Date: To be assured consideration, comments must be 
received at one of the addresses provided below, no later than 5 p.m. 
on January 4, 2016.

ADDRESSES: In commenting, refer to file code CMS-2328-NC. Because of 
staff and resource limitations, we cannot accept comments by facsimile 
(FAX) transmission.
    You may submit comments in one of four ways (please choose only one 
of the ways listed):
    1. Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the ``Submit a 
comment'' instructions.
    2. By regular mail. You may mail written comments to the following 
address only: Centers for Medicare & Medicaid Services, Department of 
Health and Human Services, Attention: CMS-2328-NC, P.O. Box 8016, 
Baltimore, MD 21244-8016.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address only: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: CMS-2328-NC, Mail 
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
    4. By hand or courier. Alternatively, you may deliver (by hand or 
courier) your written comments ONLY to the following addresses:
    a. For delivery in Washington, DC--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, Room 445-G, Hubert 
H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 
20201.
    (Because access to the interior of the Hubert H. Humphrey Building 
is not readily available to persons without federal government 
identification, commenters are encouraged to leave their comments in 
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing 
by stamping in and retaining an extra copy of the comments being 
filed.)
    b. For delivery in Baltimore, MD--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, 7500 Security 
Boulevard, Baltimore, MD 21244-1850.
    If you intend to deliver your comments to the Baltimore address, 
call telephone number (410) 786-7195 in advance to schedule your 
arrival with one of our staff members.
    Comments erroneously mailed to the addresses indicated as 
appropriate for hand or courier delivery may be delayed and received 
after the comment period.
    For information on viewing public comments, see the beginning of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Jeremy Silanskis, (410) 786-1592.

SUPPLEMENTARY INFORMATION: 
    Inspection of Public Comments: All comments received before the 
close of

[[Page 67378]]

the comment period are available for viewing by the public, including 
any personally identifiable or confidential business information that 
is included in a comment. We post all comments received before the 
close of the comment period on the following Web site as soon as 
possible after they have been received: http://www.regulations.gov. 
Follow the search instructions on that Web site to view public 
comments.
    Comments received timely will also be available for public 
inspection as they are received, generally beginning approximately 3 
weeks after publication of a document, at the headquarters of the 
Centers for Medicare & Medicaid Services, 7500 Security Boulevard, 
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 
a.m. to 4 p.m. To schedule an appointment to view public comments, 
phone 1-800-743-3951.

I. Background

    CMS and states have the responsibility under section 1902(a)(30)(A) 
of the Social Security Act (the Act) to assure that Medicaid 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 state plan at least to the extent that such care 
and services are available to the general population in the geographic 
area. We interpret this provision to mean rates and payments for 
Medicaid services are set at levels that ensure value, quality and 
provider participation. In the past, our oversight of this provision 
has primarily focused on ensuring that payment methodologies are 
economic and efficient, as well as consistent with upper payment limits 
for certain services. During the recent economic downturn, and in light 
of state proposals to dramatically reduce provider payments, we began 
requesting that states provide information to document that services 
are available and access remains after payment reductions go into 
effect. We found that state processes for documenting access were 
generally inconsistent and in many cases did not adequately document 
access.
    To address this, on May 6, 2011, we published the proposed rule 
entitled ``Medicaid Program; Methods for Assuring Access to Covered 
Medicaid Services'' (hereafter referred to as the ``Access to Care'' 
proposed rule) (76 FR 26342). In that rule, we proposed a specific 
process through which states would document that their payment rates 
provide access to care. The proposed rule, which applies to services 
that states cover through the Medicaid state plan, is being finalized 
with comment period concurrent with the issuance of this request for 
information (RFI). Among other new processes, the rule requires states 
describe access monitoring review plans that address: The extent to 
which enrollee needs are fully met, the availability of care and 
qualified service providers, changes in service utilization and 
comparisons between Medicaid payments and payments made by other health 
payers for equivalent services. At a minimum, the access monitoring 
review plans apply to the following service categories: Primary care 
(including pediatric care), physician specialists, behavioral health 
(including substance use disorder services), pre- and post-natal 
obstetric services, and home health. If states reduce or restructure 
payments, or receive complaints about access to care for other 
services, they must add those services to the review plans and monitor 
access to those services over the ensuing 3 years. States, with public 
input from stakeholders, would determine measures and thresholds used 
to monitor access as the final rule does not require a core set of 
measures or describe national thresholds for Medicaid access to care.
    We also recently proposed changes that promote access to care for 
beneficiaries who receive services through Medicaid managed care. On 
June 1, 2015, we issued a proposed rule entitled ``Medicaid and 
Children's Health Insurance Program (CHIP) Programs; Medicaid Managed 
Care, CHIP Delivered in Managed Care, Medicaid and CHIP Comprehensive 
Quality Strategies, and Revisions Related to Third Party Liability (80 
FR 31098), which proposed to modernize Medicaid and Children's Health 
Insurance Program (CHIP) managed care regulations to update the 
programs' rules and strengthen the delivery of quality care for 
beneficiaries. In that rule, we proposed: Minimum requirements for 
states when setting and monitoring network adequacy standards, 
certification of managed care plan networks at least on an annual 
basis, and annual reporting on the accessibility and availability of 
services. Similar to the ``Access to Care'' final rule with comment 
period that appears elsewhere in this issue of the Federal Register, 
the managed care proposed rule proposes to allow states the discretion 
to set the standards and measures for network adequacy and does not 
propose to require specific measures or thresholds for access to care. 
The access requirements for managed care plans are not directly 
governed by section 1902(a)(30)(A) of the Act, but instead are governed 
by access requirements under sections 1903(m) and 1932 of the Act. The 
proposed managed care rule, however, would apply the same principles in 
determining access in the managed care environment as are contained in 
the fee-for-service environment.
    We believe that, to the extent there are similarities in the 
methods and measures used to review and analyze network adequacy for 
managed care networks and access to care in fee-for-service, aligning 
such methods and measures would ease the administrative burden on 
states and ensure that all Medicaid beneficiaries receive the care that 
they need regardless of whether they are in fee-for-service, are 
enrolled with a managed care organization, or receive services through 
a Medicaid waiver program. We are undertaking this effort to review 
access to care across the entire program for all individuals enrolled 
in Medicaid regardless of the delivery system mechanism.
    Importantly, earlier this year, the Supreme Court decided in 
Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015) 
that Medicaid providers and beneficiaries do not have a private right 
of action to challenge state-determined Medicaid payment rates in 
federal courts, placing greater importance on CMS review to ensure that 
such rates are ``consistent with efficiency, economy and quality of 
care'' and ensure sufficient beneficiary access to care under the 
program. The Court concluded that federal administrative agencies are 
better suited than federal courts to make these determinations. Options 
for Medicaid providers and beneficiaries to pursue Medicaid rate-
related issues in federal courts are now limited. As we note in the 
final rule with comment period, we are therefore working to strengthen 
the framework for CMS review to ensure that rates meet the requirements 
of section 1902(a)(30)(A) of the Act, including requiring access 
improvement strategies to improve care delivery where there are 
shortcomings. In this request for information, we are asking for public 
input on what additional data sources and approaches could be used to 
determine whether access to care is sufficient.
    We recognize that many factors affect access to Medicaid services, 
including: Level of payment, geographic location, time and distance to 
the closest provider, workforce, numbers of specialists and other types 
of providers within the state, lack of knowledge of

[[Page 67379]]

available resources by beneficiaries, insufficient provider outreach, 
scope of practice approaches, and other economic and policy factors. 
Within state Medicaid programs, there are also considerable diversities 
in delivery system designs, populations served, and provider networks. 
We seek public input on what additional approaches we and states can 
take to understand, measure and improve Medicaid access more uniformly 
and in ways that account for these unique program features. This RFI 
solicits input from states, providers, beneficiaries and other members 
of the public on the feasibility of and methodologies related to the 
following four specific approaches:
     Developing a core set of measures of access that all 
states would monitor and publicly report on;
     Measuring access to long term care and home and community 
based services;
     Setting national access to care thresholds; and
     Establishing a process for access to care that would allow 
beneficiaries experiencing access issues to raise and seek resolution 
of their concerns.
    We also invite input on additional actions that we or states may 
take to further measure and promote access to care in the Medicaid 
program.
    In seeking this input, we recognize that we have not yet identified 
a clear, defined set of access measures that demonstrates whether 
access to care is sufficient. We are seeking input to identify a 
feasible set of measures and metrics that meaningfully demonstrate 
whether access to care is sufficient. We requested comments on 
potential core metrics and thresholds through the ``Access to Care'' 
proposed rule and received many suggestions. Generally, the responses 
suggested set levels of payment or access to providers consistent with 
Medicare or private insurance, without corresponding metrics and data 
sources to conduct a comparative analysis. Other health payers, such as 
Medicare, may be further along in measuring access through data 
collection tools. As any new data collection requirements would impose 
administrative burden on states and providers, we are particularly 
interested in how existing efforts, like the Medicare Current 
Beneficiary Survey and the Consumer Assessment of Healthcare Providers 
and Systems (and approved supplemental data sets), may be modified to 
apply to the Medicaid program.
    We note that through this RFI, we are seeking comments on areas of 
measurement and metrics that may indicate sufficient access in Medicaid 
programs regardless of delivery system. We are not attempting to 
develop areas of measurement that indicate causes of access deficiency, 
such as information on social determinants of health. While we 
appreciate the importance of understanding the reasons behind access 
problems and identifying those issues through data, our initial goal is 
to develop indicators of sufficient access that can be affected by 
Medicaid policy levers.

II. Provisions of the Request for Information

    We are inviting states, beneficiaries, advocacy organizations, 
providers, managed care organizations, research and measurement 
communities, professional associations and other members of the public 
to share analyses and opinions related to the following topics: (1) 
Access to care data collection and methodology; (2) access to care 
thresholds and goals; (3) alternative processes for access concerns; 
and (4) access to care measures.
    The terms: Measures, metrics, and thresholds, are used throughout 
this RFI. By measures, we mean concrete, quantifiable indicators that 
can be used to assess access to care in Medicaid. Measures have both a 
numerator and a denominator (for example, 500 Medicaid participating 
physicians in the state this year divided by the number of Medicaid 
enrollees this year, or the state received 50 beneficiary complaints 
this month divided by the number of beneficiaries enrolled). Metrics 
are used to examine measures relative to a baseline assessment (for 
example, there 10 percent more physicians participating in Medicaid 
this year than last year, or the state received 20 percent fewer 
complaints this month than last month). A threshold would be a minimum 
acceptable value for access to care that is based on the measures and 
metrics.

A. Access to Care Data Collection and Methodology

    To better inform us on the nature and scope of access to care 
measures and metrics, we are requesting comments on how to focus our 
efforts to determine the best indicators of access in Medicaid across 
services and delivery systems. Consideration of the following questions 
may be helpful in providing us your ideas and suggestions.
     What do you perceive to be the advantages and 
disadvantages to requiring a national core set of access to care 
measures and metrics? Who do you believe should collect and analyze the 
national core set data?
     Do you believe there are specific access to care measures 
that could be universally applied across services? If so, please 
describe such measures.
     What information and methods do you believe large health 
care programs use to measure access to care that could be used by the 
Medicaid program? What role can health information technology lay in 
measuring access to care?
     What do you believe are the primary indicators of access 
to care in the Medicaid program? Is measured variance in these 
indicators based on differences in things such as: Provider 
participation and location, appointment times, waiting room times, call 
center times, prescription fill times, other?
     Do you believe a national core set of access measures or 
metrics should apply across all services, or is it more appropriate to 
target a core set of access measures by service?
     Do you believe questions in provider and beneficiary 
surveys should be consistent for Medicaid and Medicare beneficiaries? 
If not, what differences do you believe should be accommodated for the 
Medicaid program, including differences in covered services?
     What do you believe we should consider in undertaking 
access to care data collection in areas related to: Differences between 
fee-for-service (FFS) and managed care delivery, variations in services 
such as acute and long-term care, community and institutional settings 
for long-term care delivery, behavioral health, variations in access 
for pediatric and adult populations and individuals with disabilities, 
and variations in access for rural and urban areas? Consider also 
individuals with chronic conditions who may have limited functional 
support needs related to activities of daily living but nonetheless 
require more intensive care than other Medicaid beneficiaries, such as 
persons living with HIV/AIDS.
     Specific to long-term services and supports, including 
home and community based services, what factors do you believe we 
should consider in measuring access to care? Do you believe we should 
incorporate into reviews of access to care for these services economic 
factors and significant policy factors such as: Minimum wage and 
overtime requirements, direct service worker shortages, training and 
professional development costs, or other factors?
     Do you believe measuring access to Home and Community 
Based Services (HCBS) differs from measuring access to acute medical 
care? Please describe.

[[Page 67380]]

     Do you believe access to HCBS should be tracked in FFS and 
in managed care delivery systems? Do you perceive any differences 
between tracking HCBS in each system?
     Do you believe there are additional metrics that need to 
be tracked related to HCBS?

B. Access to Care Thresholds/Goals

    To better inform us on how to interpret and use access to care 
metrics, we are requesting comments on setting access thresholds and 
how we might use the thresholds to improve access in the Medicaid 
program. Consideration of the following questions may be helpful in 
providing us your ideas and suggestions.
     Do you believe we should set thresholds for Medicaid 
access to care? If so, do you believe such thresholds should be set at 
the national, state or local levels? Why?
     If we set Medicaid access thresholds, how do you believe 
they should be used? For instance: For issuing compliance actions to 
states that do not meet the thresholds, as benchmarks for state 
improvement, for use in appeals processes for beneficiaries that have 
trouble accessing services, or in other ways?

C. Alternative Processes for Access Concerns

    We are considering requiring standard access to care complaint 
driven processes to better ensure access and are interested in how data 
gathered and analyzed through a core set of measures might aid in 
resolving complaints, please consider the following questions:
     Do you believe there are existing and effective processes 
to resolve consumers' concerns regarding health care access issues that 
might be useful for all state Medicaid programs?
     What do you believe are the advantages and disadvantages 
of either a complaint resolution process or a formal appeals hearing 
for access to care concerns?
     Who do you believe should be the responsible party (for 
example, the state or federal government, an independent third party, a 
civil servant, an administrative law judge, etc.) to hear beneficiary 
access to care complaints and/or appeals?
     For an access to care appeal, what criteria do you believe 
should be used to help determine:
    ++Whether an appeal should be heard?
    ++Whether an appeal merits recommendations to the state Medicaid 
agency?
     Which access to care areas of measurement or specific 
metrics may be useful in setting thresholds that would help hearings 
officers assess appeals and determine access to care remedies?
     Lack of timeliness of an appeal could undermine the time 
sensitive efforts associated with remediating an individual's access to 
medical services. You may want to consider providing information on the 
following:
    ++How could appeals be expedited?
    ++What outcomes could an appeals officer offer if services are 
unavailable to Medicaid beneficiaries?
    ++Are there other non-appeal based processes that could be used 
instead?

D. Access to Care Measures

    In conjunction with this RFI, you may want to consider each of the 
topics listed below, and suggest what you believe we should prioritize. 
You are also welcome to provide additional metrics that are associated 
with measurement areas that are relevant indicators of access to care 
in the Medicaid program and feasible to collect and analyze.
    For each suggested metric, you may consider describing the 
following:
     Suggested relevant data metrics,
     whether the metric is currently reported for Medicaid 
services,
     the feasibility of collecting the metric,
     the associated data sources/set(s) where the metrics are 
available,
     the financial cost (if any) of collecting the proposed 
metric,
     should including the metric in a more robust (or updated) 
Medicaid access policy be given priority;
     the party responsible/steward(s) of the metric data 
source,
     the metric validation process,
     whether the metric is relevant to all Medicaid populations 
or specific to particular groups, (for example, adults or pediatric 
populations, including children with special health care needs, or to 
people with disabilities or to dually eligible beneficiaries),
     whether the metric is applicable to FFS, managed care or 
both delivery systems,
     whether the metric is relevant for various subpopulations 
such as eligibility category, institutional status, or geographic 
region,
     whether the metric should be measured at the local, state 
or national level,
     as appropriate for Medicaid, thresholds associated with 
the metric,
     the challenges and advantages of the proposed metric, and 
how the metric is indicative to Medicaid access to care.
1. Measures for Availability of Care and Providers
    We are soliciting public comment on the following availability of 
care and providers measurement areas within geographic areas. In 
addition to feedback on the proposed metrics below, we are also 
interested in your thoughts on how ``geographic areas'' should be 
defined.
     Primary care physicians (including pediatricians) and 
clinicians accepting any/new patients.
     Physician specialists accepting any/new patients.
     Specialty care (for example, addiction and psychiatric 
services,, home and community based services, specialty pharmacy) 
accepting any/new patients.
     Availability of direct support workforce for home health 
and home and community-based services.
     Dentists accepting any/new patients.
     Psychiatric and substance abuse clinicians such as 
psychiatrists, child psychiatrists, psychologists, and psychiatric 
social workers and mental health counselors accepting any/new patients.
     Physicians and clinicians experiencing difficulties 
referring patients to specialty care.
     Psychiatrists experiencing difficulties referring patients 
with serious mental illness to primary care.
     Available primary care clinics, federally qualified health 
centers or rural health clinics.
     Available retail community pharmacies.
     Available behavioral health clinics or community mental 
health centers.
     Available inpatient care.
     Other.
2. Measures for Beneficiary Reported Access
    We are soliciting public comment on the following beneficiary 
reported access measurement areas:
     Beneficiaries reporting a usual source of primary care.
     Beneficiaries reporting difficulty finding a specialist/
general clinician, not taking any new patients and/or the beneficiary's 
insurance.
     Beneficiaries able to access specialists or behavioral 
health care if they have: Chronic conditions, heart disease, behavioral 
health issues, etc.
     Beneficiaries able to access long-term services and 
supports in institutional settings.
     Beneficiaries able to access home and community based 
services.
     Women able to access: Pap smears, mammograms.

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     Children and adults able to access appropriate 
immunizations and/or seasonal vaccines.
     Beneficiaries reporting delayed care and reason for delay.
     Unmet need for specialty, primary, follow-up, dental, 
prescriptions, and mental health and substance abuse treatment due to 
cost concerns.
     Beneficiaries getting needed care quickly.
     Wait times for appointments (for example, to primary care, 
urgent care, physician specialists, pre-natal care, behavioral health 
providers, and long-term services and supports in community settings).
     Length of delays in accessing long term services and 
supports in community setting due to direct service worker shortages 
and/or lack of adequate training.
     Call-center capability standards to support providing 
beneficiaries with information that can improve their access, and 
produce useful metrics for monitoring.
     Call-center metrics that reveal issues with beneficiary 
access and their resolution.
     Other.
3. Measures regarding Service Utilization--
    We are soliciting public comment on the following service 
utilization measurement areas:
     Trends in service utilization by geographic regions within 
the state.
     Trends in emergency room utilization relative to primary 
and mental health and substance abuse treatment care utilization.
     Rates of utilization (for example, At least one of the 
following visits in the prior six months/year: Physician (including 
nurse practitioners and physician assistants), dental, specialty, 
behavioral health, and primary care/well-child.)
     Other.
4. Comparison of Payments
    We are soliciting public comment on the following comparison of 
payment measurement areas:
     Payment rates for services set at a specific percentage of 
Medicare.
     Medicaid payment rates compared to surrounding states, 
Medicare, commercial payers.
     Acquisition costs compared to Medicaid payments for 
pharmaceuticals.
     Comparisons or measures that would inform managed care 
rate adequacy (the payment managed care plans make to providers).
     Other.
    We will evaluate the responses to this RFI, in addition to the 
findings from research that we are currently conducting, to inform 
whether it is advisable to collect and analyze core national measures 
at this time and the methods to conduct the collection. We may also use 
this information to help determine which measures could best inform 
understanding of access to care and to support the design of national 
or state and local thresholds.

III. Response to Comments

    Because of the large number of public comments we normally receive 
on Federal Register documents, we are not able to acknowledge or 
respond to them individually. We will consider all comments we receive 
by the date and time specified in the DATES section of this preamble, 
if and, when we proceed with a subsequent document, we will respond to 
the comments in the preamble to that document.

    Dated: October 20, 2015.
Andrew M. Slavitt,
Acting Administrator, Centers for Medicare & Medicaid Services.
[FR Doc. 2015-27696 Filed 10-29-15; 11:15 am]
 BILLING CODE 4120-01-P