In the obscure pages of the Federal Register, consumers recently won an important victory — a victory whose implications for Medicaid beneficiaries are anything but obscure.
Last week, the Centers for Medicare & Medicaid Services (CMS) released a final rule defining transparency and public input procedures for Section 1115 Medicaid & CHIP waivers. (Okay, we admit, that sounds pretty darned obscure, but hang with us while we unpack what this really means.)
States apply for these “Section 1115” waivers from CMS to implement changes to their Medicaid and CHIP programs that the current law wouldn’t normally allow. Sometimes those changes benefit consumers – many states use section 1115 waivers to expand coverage to low-income adults. But some of these waivers jeopardize the care of vulnerable beneficiaries: restricting important benefits and/or increasing premiums and copays above what’s otherwise allowed for certain categories of beneficiaries, or pushing enrollees into managed care plans without protections to ensure continued access to needed services.
What’s more concerning is that states and CMS often design, approve and implement these changes to Medicaid and CHIP without consulting the very people whose care will be impacted. In too many cases, consumers have been locked out of the waiver development process, or have been given too little information about what the state and CMS are considering to provide meaningful input. For example, in 2005 the Bush Administration approved a waiver from Florida that gives insurers unprecedented flexibility to determine the Medicaid benefit package for adult beneficiaries. The administration approved this waiver only eight business days after the state submitted its application, and didn’t even post state’s application on its website before approving it.
CMS’ new regulations provide consumers with new tools for ensuring their voices are heard when states and CMS consider these types of changes to Medicaid and CHIP. The rule, which becomes effective on April 27, establishes three key opportunities for public input into Section 1115 waivers:
- The State’s Development of the Waiver Application. States are now required to provide at least a 30 day public notice and comment period prior to submitting a waiver application to CMS. And at least 20 days prior to submitting its application, states must hold two public hearings, on separate dates and in separate locations, with an opportunity for the public to provide comments.
In order ensure that consumers are able to provide meaningful and informed input, the regulations require states to make publically available important details about their waiver application, including: a description of the populations who will be affected, the benefits and cost-sharing that will apply to affected populations, the estimated impact on enrollment for the populations affected, and the specific waiver and expenditure authorities that the state is seeking.
Finally, the state must prove to CMS that it took this public input into account in developing its waiver application. The regulations require that the state submit with its application a summary of the public comments it received during the public comment period, along with written evidence of how it “considered those comments when developing the demonstration application.”
- CMS’ Approval Process. After receiving a complete waiver application, CMS will solicit public comment for 30 days. The rules require CMS to make available on its website the state’s complete application and supporting documents, and update that website with relevant status updates at regular intervals.
- Implementation of the Waiver. Within 6 months of implementation, and annually thereafter, the state must hold a public forum to solicit public comments on the progress of the demonstration project.
–Katherine Howitt, Senior Policy Analyst