By Adam Sonfield
Senior Public Policy Associate
With the end of the Obama administration rapidly approaching, federal agencies have stepped up their efforts to finalize long-brewing regulations and guidance. CMS has been particularly active. In April 2016, the agency issued three documents that all have considerable importance for family planning services and providers under Medicaid.
On April 8, CMS issued a long-promised informational bulletin from its Maternal and Infant Health Initiative, which has made increasing access to and use of effective methods of contraception one of its two main objectives.1 The bulletin details approaches from 14 states to promote the coverage and availability of long-acting reversible contraceptives (LARCs), namely intrauterine devices and contraceptive implants. (The 14 states are Alabama, California, Colorado, Georgia, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Montana, New Mexico, New York, South Carolina, and Texas.)
The approaches are designed to overcome a cluster of commonly reported obstacles to making LARC methods available for Medicaid enrollees. For example, states have taken steps to ensure that all necessary contraceptive services are covered (including counseling, and device insertion, removal, replacement, and reinsertion) and to eliminate prior authorization and similar coverage limits.
States also have worked to improve reimbursement for LARCs and other methods, to help providers offer the full range of choices. That work has included unbundling payment for LARCs from other labor and delivery services and allowing providers to bill for an office visit and a device insertion on the same day. Finally, states have worked with manufacturers to address issues related to supply management, including the upfront costs of keeping expensive devices in stock.
Blocking abortion attacks
CMS’ next big move was an April 19 letter to state Medicaid directors that put states on notice that cutting providers in good standing — specifically, family planning providers — out of their Medicaid programs will run them afoul of federal law.2 This guidance represents a forceful rejection of states’ increasingly widespread attempts to deny Medicaid funding from Planned Parenthood health centers and other providers that offer abortion services or are affiliated with a provider that does so. CMS’ letter makes it clear that states do not have the legal authority to oust providers from their Medicaid networks without legitimate evidence of wrongdoing; such actions unlawfully limit Medicaid beneficiaries’ right to obtain care from a qualified, willing provider of their choosing.
The letter further highlights that Medicaid’s provision for “free choice of provider” has long applied specifically to family planning, and it explicitly says that beneficiaries cannot be denied access to a provider solely because they offer the “full range of legally permissible gynecological and obstetric care, including abortion services.” More generally, CMS makes it clear that states may not target providers for reasons beyond their ability to provide services and properly bill for them, and that the “failure of a state to apply otherwise reasonable standards in an evenhanded manner may suggest such targeting.” Multiple federal courts have agreed with CMS on this longstanding interpretation of federal law.
CMS followed up on April 25 with its sweeping final regulations on Medicaid managed care plans, which are privately run plans through which most Medicaid enrollees receive their coverage, including almost all of those newly eligible under the Affordable Care Act’s Medicaid expansion.3 The regulations initially were proposed in May 2015 and mark the most extensive update in nearly 15 years. They address access to family planning and other reproductive health services in numerous ways.
Notably, managed care plans are explicitly barred from imposing utilization controls that interfere with Medicaid enrollees’ freedom to choose a contraceptive method, specifically including prior authorization requirements or so-called step therapy (requiring that enrollees first try one method, such as the Pill, before trying the method of their choice, such as an intrauterine device).
A major piece of the regulations sets new standards to ensure that managed care plans’ provider net-works, including their network of obstetrician-gynecologists, be comprehensive enough to meet their enrollees’ needs.
Separately, plans will need to demonstrate that they have included sufficient family planning providers in their networks to ensure timely access to care. As CMS notes, “use of network providers facilitates claims payment, helps enrollees locate providers more easily, and improves care coordination.”
The regulations also clarify a “direct access” requirement: that Medicaid enrollees be allowed to receive care from a women’s health specialist without a referral. They require plans and states to inform enrollees about specific rights, including the freedom to obtain care from the family planning provider of their choice, even if their managed care plan otherwise restricts coverage to in-network providers. States are reminded of their obligation to ensure that Medicaid enrollees can access all covered information and services, even when providers or managed care plans have religious/moral objections.
- Centers for Medicare & Medicaid Services. CMCS Informational Bulletin re: State Medicaid Payment Approaches to Improve Access to Long-Acting Reversible Contraception. Accessed at http://bit.ly/1WlaybL.
- Centers for Medicare & Medicaid Services. SMD #16-005 re: Clarifying “Free Choice of Provider” Requirement in Conjunction with State Authority to Take Action Against Medicaid Providers. Accessed at http://bit.ly/27a5sTr.
- Centers for Medicare & Medicaid Services. Medicaid and Children’s Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability. Federal Register, May 6, 2016. Accessed at http://1.usa.gov/1UPaZd6.