Increasing Access to Home and Community-Based Services: Implications of New Proposed Rules

On April 27, 2023, the Centers for Medicare & Medicaid Services (CMS) released two notices of proposed rulemaking (NPRM) intended to improve access to care for Medicaid beneficiaries: Ensuring Access to Medicaid Services (CMS-2442-P), referred to as the Access NPRM and Medicaid and Children's Health Insurance Program (CHIP) Managed Care Access, Finance, and Quality (CMS-2439-P), also known as the Managed Care NPRM. These proposed regulations contain many new and updated requirements for states, Medicaid managed care plans, and providers intended to improve beneficiary access to care, quality, and health outcomes in both fee-for-service (FFS) and managed care delivery systems while advancing CMS’ health equity goals.Aurrera Health Group was pleased to support CMS in its development of the Access NPRM through a partnership with the MITRE Corporation. Our staff provided technical assistance to inform CMS' development of the rule, including providing policy analysis and advice, conducting environmental scans, and gathering stakeholder insights. This work leveraged our firm’s deep expertise on home and community-based services (HCBS), community and stakeholder engagement, and quality and performance measurement.The Access NPRM addresses a broad set of Medicaid services, with a particular emphasis on HCBS. This focus reflects increased interest in HCBS access in response to both the aging population and COVID-19 pandemic. In particular, the proposed rule includes provisions to:

• Improve compensation for the HCBS direct care workforce by requiring states to ensure 80% of state Medicaid payments for certain services directly support staff compensation including wages and benefits;

• Require annual reporting of the average hourly rate paid to direct care workers; and

• Establish committees to advise and consult with states on certain HCBS provider rates.

Given persistent and growing HCBS workforce shortages, some states have already implemented enforcement provisions associated with wage pass-through policies designed to ensure fair pay for direct care workers, as documented in a recent report authored by Aurrera Health’s Vice President for Medicaid Policy & Programs, Lauren Block; Director for Medicaid Policy & Programs, Kate Johnson; and Senior Policy Consultant, Brianna Nielsen for the National Governors Association Center for Best Practices. However, the proposed rule provisions are a novel approach for the federal government, giving CMS a more direct role than it has previously had in shaping – or directing states to shape – compensation policy to support the recruitment and retention of the HCBS workforce.Among other HCBS requirements, if the NPRM is finalized, states would:

• Report biannually on the HCBS Quality Measure Set, currently available for voluntary use, as well as set performance targets and create quality improvement strategies to support improvement on the measures;

• Increase transparency and accountability of HCBS programs by implementing improved incident management systems and grievance processes for FFS HCBS;

• Report annually on the number of people on HCBS waiver waiting lists, how the state manages these waiting lists, and how long newly enrolled waiver participants waited for access to the program; and

• Publish certain HCBS data on a public website.

The Managed Care NPRM also includes a provision requiring that Medicaid managed care plans analyze how their payments for certain HCBS compare to Medicaid FFS rates.These new regulations, if finalized, have the potential to further longstanding federal and state goals related to “rebalancing” long-term services and supports by facilitating greater access to and use of HCBS as an alternative to care in institutions. They would also promote increased transparency and accountability for states, managed care plans, and providers. As states consider the potential implications of implementing these rules amid competing priorities, opportunities to share best practices and other technical assistance may help to aid the implementation of these significant regulations.Public comments on both rules are due July 3, 2023. The Aurrera Health team will continue to monitor progress on these important issues, and we look forward to helping states and other stakeholders understand and implement any finalized regulations to support Medicaid beneficiary access to HCBS.

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Authors

Kristal Vardaman [Managing Principal]