Comments on CMS proposed rule on Medicaid Managed Care

Centers for Medicare & Medicaid Services
Dept. of Health & Human Services
State Capitol, Room 6005
Attention: CMS-2390-P
P.O. Box 8016
Baltimore, MD 21244-8016

Re: Comments on CMS proposed rule on Medicaid Managed Care File code CMS-2390-P

To whom it may concern:
California Health Advocates appreciates the opportunity to comment on the Centers for Medicare & Medicaid Services (CMS) proposed rule “Medicaid and Children’s Health Insurance Program (CHIP) Programs; Medicaid Managed Care, Medicaid and CHIP Comprehensive Quality Strategies, and Revisions Related to Third Party Liability.”

California Health Advocates’ (CHA) mission is to provide quality Medicare and related health care coverage information, education and policy advocacy. CHA’s comments to the above mentioned proposed rule is informed by our experience as one of the stakeholders advocating on behalf of beneficiaries affected by Cal MediConnect. (Cal MediConnect is the name of California’s duals demonstration to integrate care for individuals dually eligible for Medicare and Medicaid.) We support CMS’ belief that “beneficiaries are best served when they affirmatively exercise their right to make a choice of delivery system or plan enrollment,” and our comments would increase the likelihood of helping beneficiaries make an informed decision to meet their needs.

Beneficiary Protections


Minimum choice period

The proposed rule sets a minimum of 14 days for the choice period for a beneficiary to make a choice from FFS to managed care. Although states may set a longer period, and we hope they do, 14 days is not long enough for beneficiaries to make an informed decision. As CMS noted, the transition from FFS to managed care is a sensitive one,and the medical, physical and/or cognitive needs of Medicaid beneficiaries are often complex. Thus CHA recommends 60 days as the minimum choice period to allow beneficiaries the opportunity to make an informed decision.

Beneficiary notices

CHA strongly recommends the following requirements regarding notices so that all beneficiaries may actively participate in making a choice that meets their needs:

  • Notices should be beneficiary-tested before any notices are sent;
  • Notices should be in another language or other languages which are prevalent in the beneficiary population;
  • Inserts in multiple languages to alert beneficiaries of their right to Interpreter services, as is required in the Medicare Advantage and Part D programs;
  • We appreciate that the proposed rule requires written materials be made available in alternative formats, and auxiliary aids and services be made available upon request of the beneficiary at no cost. We recommend that inserts about the availability of the alternative formats, auxiliary aids and services be included to inform beneficiaries of their right to request such materials at no cost. Further, we recommend that the alternative formats, auxiliary aids and services be made available within 7 business days of the beneficiary’s request.

Beneficiary Support System

We support the requirement in new §438.71 that states develop and implement a beneficiary support system (BSS) that provides choice counseling and assistance to beneficiaries and training for network providers. We recommend adding the following minimum requirements:

  • Require support specified under §438.71(e) be provided to all enrollees. §438.71(b)(1)(i) states that choice counseling be provided to all beneficiaries, but the support listed under §438.71(e) are required to be provided only to enrollees who use, or express a desire to receive, LTSS. Any enrollee, not only those who use, or express a desire to receive, LTSS, may be denied covered services they need, and thus need support listed under §438.71(e) – an access point for complaints and concerns, education on enrollees’ grievance and appeals rights, assistance in navigating the grievance and appeals process – to receive covered services.
  • Increase funding for the BSS. CMS mentioned that the BSS would be similar to existing programs such as the State Health Insurance Assistance Programs (SHIPs). SHIPs provide free, in-depth, one-on-one counseling and assistance on Medicare issues. A model for the national SHIP was California’s Health Insurance Counseling and Advocacy Program (HICAP) which was established by state statute in 1984. California’s Welfare & Institutions Code 9541(a) states that the purpose of HICAP is to provide “counseling and advocacy as to Medicare, private health insurance, and related health care coverage plans…” With the implementation of Medicare Part D in 2006, HICAP and other SHIPs have increasingly served beneficiaries eligible for both Medicare and Medicaid (commonly called “duals”). Since HICAP is a well-established program, has a reputation for being a reliable source of objective and up-to-date information, and provides in-person assistance, beneficiaries contact HICAP for issues other than Medicare, namely Medicaid issues. Although not funded to address Medicaid issues, local HICAPs have spent time and resources to help beneficiaries with Medicaid issues because beneficiaries could not or did not find other resources effective. This is unfair to beneficiaries as well as HICAPs.

We recommend that the BSS coordinate with SHIPs so that referrals between the two programs will be smooth. Training of BSS staff should include basic Medicare information so that BSS staff can identify Medicare issues to refer beneficiaries to SHIPs. The quality of service provided by BSS should be comparable to that of SHIPs. As such we strongly advocate for adequate funding, and are concerned that the estimate in the proposed rule would not be sufficient (see 80 Fed. Reg. at 31182).

The estimate is based on the assumption that the BSS would be accomplished via a call center and that only “some in-person assistance may need to be provided in certain circumstances.” Another assumption is that states will likely “use existing community-based outreach/education and ombudsman staff, whether state employees or contractors, for the occasional in person request.” Beneficiaries overwhelmingly prefer in-person assistance because it is “hi touch” and effective. If existing community-based programs’ staff will be used, they need to be adequately trained and funded.

The estimate was based on providing support under §438.71(e) only to enrollees who use, or express a desire to receive, LTSS whereas we recommend that such support be provided to all enrollees. The BSS is required to perform outreach to beneficiaries and/or authorized representatives but how the outreach will be performed is not specified and the estimated funding does not include extensive or in-person presentations.
In short, we recommend for more funding to support ongoing and not occasional in-person assistance, training for community-based programs’ staff, assistance under §438.71(e) for all enrollees, and extensive outreach to beneficiaries, authorized representatives and health care providers, as explained below.

  • Include outreach to providers. §438.71(b)(2) requires the BSS to perform outreach to beneficiaries and/or authorized representatives. One lesson from Cal MediConnect, California’s duals demonstration, is beneficiaries trust their doctors and look to them for health care coverage information, not only medical information. Sadly, we heard one too many stories where doctors gave incorrect information or did not know where to refer their patients. We strongly suggest that information about the BSS be widely disseminated, including health care providers, specifically doctors. Health care providers who are informed about the BSS can refer their patients to BSS for assistance with Medicaid managed care.

Continued Services to Beneficiaries and Coordination and Continuity of Care

For the transition of care policy that states are required to have for individuals moving to managed care, we support the proposed rule permitting the enrollee to continue to receive the services they are currently receiving from their current provider for a specified period of time. Further, we recommend that the services from the current provider be continued automatically, that an enrollee need not have to request continuity of care. Our recommendation is based on experience with Cal MediConnect, which requires the enrollee to request continuity of care. Many enrollees do not know their right to request continuity of care or that they may continue services with the current provider. Putting the onus on the enrollee to request continuity of care increases the risk of disrupting needed services that may necessitate hospitalization or institutionalization.

We recommend borrowing from the Medicare Part D transition policy which requires Part D plans to provide a temporary supply of non-formulary drugs within the first 90 days of coverage. Part D plan are also required to send notices to enrollees about the transition process covering the temporary supply of non-formulary drugs and providing sufficient time to work with the beneficiary’s prescriber to switch to a therapeutically equivalent drug that is on the plan’s formulary or to process an exceptions request. The Part D transition policy does not require the beneficiary to request a temporary supply. Similarly, we recommend that a state’s transition policy require Medicaid managed care plans to allow a newly enrolled beneficiary to continue services with the current provider automatically for a period of time and cover the services. During that period of time, the Medicaid managed care plan must provide notice to the beneficiary and the provider about the plan’s network rules, work with the provider to become a network provider and, if the provider does not agree to join the plan’s network, help the beneficiary to transition to network providers so that needed services are not disrupted.

We thank CMS for considering our comments on the proposed rule.


Elaine Wong Eakin
Executive Director

Karen Joy Fletcher

Our blogger Karen Joy Fletcher is CHA’s Communications Director. With a Masters in Public Health from UC Berkeley, she is the online “public face” of the organization, provides technical expertise, writing and research on Medicare and other health care issues. She is responsible for digital content creation, management of CHA’s editorial calendar, and managing all aspects of CHA’s social media presence. She loves being a “communicator” and enjoys networking and collaborating with the passionate people and agencies in the health advocacy field. See her current articles.