AMARILLO, TX – We are writing a series of Medtrade Monday articles addressing federal law pertaining to Medicare Advantage Plans (MAPs) and Medicaid Managed Care Plans (MMCPs). The previous three articles (i) presented an overview of federal laws governing MAPs and MMCPs; (ii) discussed the minimum level of service that must be provided by MAPs and MMCPs; and (iii) discussed access to care requirements that federal law imposes on MAPs. This article addresses access to care requirements that federal law imposes on MMCPs.
Medicaid Managed Care Plans (MMCPs)
An MMCP provides for the delivery of Medicaid health benefits and additional services through contracted arrangements between state Medicaid agencies and managed care organizations (“MCOs”) that accept a set per member per month payment for the services. Federal law sets forth the requirements for the contract that will be established between the state and the MMCP.
Section 1932 of the Social Security Act establishes the requirements related to the federal oversight of full-risk managed care programs. 42 U.S.C. § 1396u-2. Under 42 U.S.C. § 1396u-2(b)(5), each Medicaid MCO must provide assurances that (i) its plan offers an appropriate range of services and access to both preventative and primary care for the population that is expected to enroll in each service area and (ii) the MAP will maintain a distribution of providers that are of a sufficient number, type, and location. This requirement varies state by state. Under the quality assurance standards in subsection (c), the standards for access to care must be available within reasonable timeframes and in a manner that ensures continuity of care and adequate primary care and specialized services capacity. 42 U.S.C. § 1396u-2(c)(1)(A)(i).
State Medicaid programs use three main types of managed care delivery system: (i) comprehensive risk-based managed care, (ii) primary care case management, and (iii) limited-benefit plans. In a comprehensive risk-based managed care arrangement, states contract with MCOs to cover all or most Medicaid-covered services for their Medicaid enrollees. In a primary care case management program, each enrollee has a designated PCP who is paid a monthly case management fee to be responsible for managing and coordinating the enrollee’s basic medical care. In a limited-benefit plan, a state contracts with the plan to manage specific benefits, such as inpatient mental health or substance abuse benefits, nonemergency transport, oral health, or disease management.
The states are required to develop and enforce network adequacy standards on the MMCP according to the standards set forth in 42 C.F.R. § 438.68. The regulation sets forth a provider-specific network adequacy standard for which the MMCP must develop a quantitative network adequacy standard for providers of primary care (adult and pediatric), OB/GYN, behavioral health, (adult and pediatric), specialists (adult and pediatric), hospitals, pharmacies, and pediatric dental. 42 C.F.R. § 438.68(b)(1)(i)-(vii). The network standards must include all of the geographic areas covered by the MMCP. It is possible for the contract between the state and the MMCP to have varying standards for the same provider type based on the geographic area that is covered. 42 C.F.R. § 438.68(b)(3). Any exceptions granted by the state to the MMCP is required to be specified in the contract and based on the number of providers practicing in that specialty in the MMCP service area. 42 C.F.R. § 438.68(d)(1)-(2).
The relevant provisions that apply to MMCPs are found in 42 C.F.R. § 438.206. The basic rule for availability of service is that the state must ensure that all services covered by the MMCP are available and accessible to enrollees in a timely manner. Each state establishes its own standards. The state must ensure the MMCP maintains and monitors a network of appropriate providers that is supported by written agreements and is sufficient to provide adequate access to all services covered under the contract with enrollees. 42 C.F.R. § 438.206(b)(1). The MMCP must provide female enrollees with direct access to a women’s health specialist within the provider network for covered care necessary to provide women’s routine and preventative health care services. 42 C.F.R. § 438.206(b)(2).
The MMCP must provide for a second opinion from a network provider or arrange for the enrollee to obtain a second opinion outside the network, at no cost of the enrollee. 42 C.F.R. § 438.206(b)(3). If a provider network is unable to provide necessary services, covered under the contract, to a particular enrollee, the MMCP must adequately and timely cover these services out of network for the enrollee, for as long as the MMCP’s network is unable to provide them. 42 C.F.R. § 438.206(b)(4). CMS declined to define the term “timely” in 42 C.F.R. § 438.206(b) because it is considered at 42 C.F.R. § 438.206(c)(1). Medicaid and Children’s Health Insurance Program (“CHIP”) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability, 81 FR 27498-01. CMS further explains that the states should be allowed to set appropriate and meaningful quantitative standards for their programs. Id. The state must also ensure that the MMCP will coordinate with out-of-network providers for payment and ensure that the cost to the enrollees is no greater than it would be if the services were furnished within the network. 42 C.F.R. § 438.206(b)(5).
The MMCP is required to demonstrate that its network providers are credentialed as required by 42 C.F.R. § 438.214. This section provides that the state must ensure that each MMCP implements written policies and procedures for selection and retention of network providers and that the policies and procedures meet the requirements of the section. 42 C.F.R. § 438.214 et seq. Each state must establish uniform credentialing and recredentialing policies that address acute, primary behavioral, substance use disorders and requires that each plan follows those policies. Id. It also requires the plans to follow a documented process for credentialing and recredentialing of network providers. Id. The MMCP is required to demonstrate that its network includes enough family planning providers to ensure that there is timely access to covered services.
Each MMCP must provide timely access, cultural considerations, and accessibility considerations. 42 C.F.R. § 438.206(c). Timely access requirements under this section include meeting the state standards for timely access to care and services while considering the urgency of the need for services. 42 C.F.R. § 438.206(c)(1) et seq. Additionally, the hours of operation for the network providers can be no less than the hours of operation offered to commercial enrollees or comparable to Medicaid. Id. The MMCPs must make services included in the contract available 24 hours a day, 7 days a week when medically necessary. Id. The MMCPs need to enact mechanisms to ensure compliance by network providers and monitor them regularly to ensure compliance. Id. If the network provider fails to comply with the requirements, then the MMCP is required to take corrective action. 42 C.F.R. 438.206(c)(1)(i)-(vi).
Each MMCP’s network providers are required to promote the delivery of services in a culturally competent manner to all enrollees and ensure that they provide physical access, reasonable accommodations, and accessible equipment for Medicaid enrollees with physical or mental disabilities. 42 C.F.R. § 438.206(c)(3).
Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers, and other health care providers throughout the United States. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or [email protected].
Cara C. Bachenheimer, JD, is an attorney with the Health Care Group at Brown & Fortunato, a law firm with a national health care practice based in Texas, where she heads up the firm’s Government Affairs Practice. Bachenheimer’s practice focuses on federal lobbying activities with Congress, the Administration, and federal regulatory agencies, such as CMS, FDA, IRS, and FAA. She can be reached at (806) 345-6321 or [email protected].
