In recent days, we’ve started to feel a bit like Lucy and
Ethel in their famous chocolate factory scene where the conveyor belt keeps
speeding up faster than they can box the candy. Lately, HHS and other federal agencies have been
releasing important ACA
regulations at such a fast and furious pace that it would take a world champion
speed reader to keep up. Most
recently, HHS released a copy of the “final” Medicaid rule. It will officially be posted in the
Federal Register on March 23rd, but for now, is available here. Despite the fact that most of the rule
is in final form, a few key areas are actually still open for comment.
Based on an initial read-through, here are some
highlights from the Medicaid rule:
* Further strengthening of the use of electronic
verification. In keeping with the
strong statutory language of the ACA, the final rule outlines a vision for
connecting people to coverage that harnesses technology to get rid of
unnecessary red-tape and paperwork.
Instead of requiring families to submit paper documentation, the final
rule calls for relying on automatic data matches to the maximum extent
possible. Of particular note: It clarifies that people cannot be
required to provide additional information or documentation unless a state
cannot obtain the data electronically (or the data are incompatible).
* Allows people with disabilities to enroll in the
eligibility category that best meets their needs. The proposed rule raised the prospect that people with
disabilities would be required to enroll in the new Medicaid eligibility
category designed to cover adults up to 138% of FPL even if they could qualify
for Medicaid under a disability category that provided them with more
appropriate benefits (e.g., home and community-based waiver services or other
long-term care services). The
final rule allows people with disabilities to enroll in the category that best
meets their needs, as long as they are eligible.
* New language clarifying that information must be
provided “accessibly” and in a timely manner for people who are limited English
proficient or who have a disability.
The final rule includes stronger provisions requiring the use of
language and tools that will make it possible for people with disabilities and
who are limited English proficient to sign up for and keep coverage. It clarifies that the application, renewal
form, kiosks, and other information systems must meet these standards, and
promises more guidance on these issues in the future.
* No face-to-face interview requirement allowed. The final rule unequivocally says that
states cannot require an in-person interview at application or renewal. Nearly all states already have gotten
rid of these outdated requirements, but at least one, Mississippi, has been
Of course, life isn’t a box of chocolates, and there are
a few troubling additions to the final rule.
* Allowing Exchanges to take a pass on fully evaluating
Medicaid eligibility. As part of
creating a “no wrong door” seamless eligibility system, the ACA and the
proposed rule envisioned Exchanges actually evaluating people who came to their
door for Medicaid and, if found eligible, ensuring they were enrolled in
coverage. In a step backward, the
final rule indicates HHS now is planning to allow Exchanges to conduct a
preliminary assessment of potential eligibility and then to hand off the final
determination to the Medicaid agency.
Based on our experience with states seeking to coordinate coverage
between Medicaid and separate CHIP programs, such “hand offs” are a risky
business and can lead to eligible people falling through the cracks. HHS has included a number of
protections aimed at minimizing the risk, but the basic structure is asking for
trouble. In my book, a bit like
going into an open marriage. Even if you have all sorts of ground rules in
place designed to make it work, I still wouldn’t put my money on such an
* Outsourcing issues. The final rule appears to open the door even further to
outsourcing of Medicaid eligibility determinations. HHS has included a number of protections aimed at ensuring
that state Medicaid agencies remain ultimately responsible for the outcomes,
but, it will be important to dig into these provisions further to see if they
will really work.
In the weeks ahead, HHS is conducting a series of
webinars to go through key topics addressed in the final Medicaid rule. They are open to interested parties at
both the state and national level, and we encourage you to participate if you
Also, as already noted, some key areas of the Medicaid
rule remain open for comment, including the new provisions allowing for
handoffs between the Exchange and Medicaid agency. We’ll be working with others
in the weeks ahead to develop draft comments, which are expected to be due on