On March 23^rd, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule that would exempt states from requirements to analyze and monitor access to care in the Medicaid program under certain circumstances.

The proposal seeks to amend 42 CFR 447.203(b), which sets forth the process for states to document whether Medicaid payments in fee-for-service (FFS) delivery systems are sufficient to ensure appropriate access to services. Specifically, states must develop, update every three years, and submit to CMS an access monitoring review plan (AMRP) for Medicaid services provided via FFS Medicaid. Current regulations specify areas of care that must be included, the information that must be collected and reviewed via a data-driven process, and an access review that must be completed when provider payment rates are being changed.

The proposal also seeks to amend 42 CFR 447.204, which requires states to hold a public process and submit documentation (including its AMRP, an analysis of the impact of the rate change, and an analysis of public input) when changing provider payment rates.

The proposed rule would provide an exemption from these processes under certain circumstances:

• States will high managed care enrollment would be exempt from both the AMRP requirement and the regulatory requirement to hold a public process and submit documentation (including an access review under the AMRP) to CMS when changing provider payment rates. This would include states that have a comprehensive, risk-based Medicaid managed care delivery system with enrollment rates over 85 percent of the total Medicaid population in the state (inclusive of managed care contracts under Section 1115 Medicaid Waivers). Such states would have to submit an attestation of meeting the enrollment threshold by January 1^st of each year. They would remain subject to underlying statutory requirements and would be required to submit data demonstrating compliance with the statute.
• States that make nominal payment reductions via state plan amendments (SPAs) would be exempt from the requirement to hold a public process and submit documentation (including an access review under the AMRP). This would apply when the proposal to reduce provider payment rates or restructure payments includes an overall reduction of 4 percent or less of overall spending within the service category in a single fiscal year or 6 percent or less over two consecutive fiscal years. This proposal seeks to codify guidance provided to states via State Medicaid Director Letter 17-004 exempting nominal changes to payment rates that are unlikely to diminish access to care, and goes further to exempt the state from a public process requirement in such instances.

The rule also proposes to modify the requirements under 42 CFR 447.204(b)(2) for states that remain subject to the public process and documentation requirements when proposing to reduce or restructure Medicaid payment rates. States would no longer have to submit an analysis anticipating the impact of the proposed change; instead the state would have to submit an assurance that data indicates that access is currently (at the time of submission) consistent with Federal law.

Comments on the rule are due by May 22, 2018 by 5 p.m.