Apr, 15, 2022

CMS RFI on Access to Coverage and Care in Medicaid & CHIP: Model Comments to Inform State Responses

Patricia Boozang, Kinda Serafi, and Allison Orris, Manatt Health


On February 17, 2022, the Centers for Medicare & Medicaid Services (CMS) released a request for information (RFI) seeking feedback on topics related to healthcare access. The RFI presents an important opportunity for states to share with federal partners input and creative ideas to achieve substantial reforms on access to coverage–namely, the processes for enrollment and eligibility redeterminations–as well as the standards for defining and monitoring enrollee access to care under both fee-for-service (FFS) and managed care delivery systems. (For more information, see this expert perspective that summarizes the RFI.) Responses will inform CMS’ future guidance and rulemaking, as well as ongoing CMS efforts to engage with subject matter experts, convene stakeholder roundtables, and perform regulatory gap analyses.

Below, we provide model comments developed to inform and support state responses to the RFI. We encourage states to submit comments, including by leveraging and building on any of the below language that reflects state priorities. States must submit all comments by Monday, April 18, 2022, via the online portal. State Health and Value Strategies (SHVS) and Manatt Health are available to help as your state considers whether and how to respond to the RFI.

Model Comments for State Consideration in Response to the CMS Access RFI

CMS Question
What are the specific ways that CMS can support states in achieving timely eligibility determination and timely enrollment for both modified adjusted gross income (MAGI) and non-MAGI-based eligibility determinations? In your response, consider both eligibility determinations and redeterminations for Medicaid and Children’s Health Insurance Program (CHIP) coverage, and enrollment in a managed care plan, when applicable.

Verification Processes at Application and Renewal

  • Reasonable Compatibility at Renewal. CMS should issue new guidance that clearly allows for the use of a reasonable compatibility threshold at renewal whereby a state may compare data sources against information in the eligibility system renewal.
  • Zero Income. CMS should issue guidance that establishes: when an individual attests to zero income at application or renewal and no data sources are returned that indicate otherwise, the state may accept the lack of data from available sources as reasonably compatible with the attestation of no income, and no further information or documentation is required.
  • Individuals Unlikely to Experience a Change In Circumstances. CMS should issue guidance that outlines specific categories of individuals who are highly unlikely to experience a change in circumstances and for whom a state may automatically renew coverage unless the individual reports a change in circumstances. Such individuals could include Supplemental Security Income (SSI) recipients, former foster care youth, and adults in skilled nursing facilities.
  • Leverage Federal Tax Filing to Streamline Eligibility. Current regulations require states to obtain consent to review Internal Revenue Service (IRS) data for verifying income at application and renewal when determining eligibility for an Advance Premium Tax Credit (APTC) for a Qualified Health Plan (QHP). After the five years have passed, states must reobtain consent. CMS should issue regulations that remove the five-year limit on consumer IRS tax data consent.

Eligibility and Enrollment Streamlining for Non-MAGI Populations

CMS should consider the following actions to enable eligibility and enrollment alignment across MAGI and non-MAGI populations:

  • Release guidance on how states may revise or remove their asset tests and provide technical assistance for states.
  • Provide technical assistance to states on how to: (1) leverage 1902(r)(2) authority to modify non-MAGI eligibility in order to align with MAGI eligibility criteria; and (2) smooth eligibility and enrollment transitions for individuals who become dually-eligible for Medicaid and Medicare.

CHIP Premiums

CMS should consider using its regulatory and sub-regulatory authorities to promote consumer affordability of CHIP coverage:

  • Encourage states to implement a three-month grace period for CHIP premium payment, consistent with Marketplace premium payment grace periods.
  • Encourage states to evaluate and address premium affordability for the CHIP population. At a minimum, while the American Rescue Plan Act of 2021 (ARP) premium subsidies are in effect, CMS should encourage states to ensure that low-income families are not paying higher premiums for their children’s coverage than they do for adult coverage through the Marketplace.
  • Release guidance clarifying that third parties, including managed care plans, hospitals, other providers, and foundations, may pay CHIP premiums on behalf of families.  

CMS Question
In what ways can CMS support states in addressing barriers to enrollment and retention of eligible individuals among different groups, which include, but are not limited to: people living in urban or rural regions; people who are experiencing homelessness; people who are from communities of color; people whose primary language is not English; people who identify as lesbian, gay, bisexual, transgender, queer, or those who have other sexual orientations or gender identities (LGBTQ+); people with disabilities; and people with mental health or substance use disorders? Which activities would you prioritize first?

Race, Ethnicity and Language (REL) and Sexual Orientation and Gender Identity (SOGI) Data Collection

  • REL Data. Collecting and monitoring data on Medicaid, CHIP, and Marketplace enrollee race, ethnicity, and language are essential first steps in efforts to reduce health disparities and address health equity. Today, all state Medicaid agencies ask applicants to provide self-reported data on REL. However, the type and granularity of information collected varies considerably, and many states continue to face longstanding and persistent challenges in collecting complete, accurate, and consistent data on REL. To support states in this effort, CMS should:
    • Update its regulations to establish a floor that is a minimum for the standardization of REL data collection on both the paper and online single streamlined application, and provide states with promising practices about how to frame questions to increase the rates of self-reported data (e.g., providing context on use, requiring “active” opt-out responses).
    • Issue sub-regulatory guidance to specify data definitions and standards to ensure comparable data across states.
  • SOGI Data. Nearly all states ask applicants to indicate their “sex” or “gender” (these terms are generally used interchangeably to refer to sex assigned at birth) as either “male” or “female” on their paper and online applications. Most state Medicaid agencies do not ask applicants to provide self-reported SOGI information, despite its potential utility for supporting population-specific access and service needs and reducing health disparities. To support states in this effort, CMS should:
    • Update regulations to include the collection of SOGI data on both the paper and online single streamlined application in alignment with federal standards (e.g., ONC USCDI v2), and provide states with promising practices about how to frame questions to maximize self-reporting (e.g., providing context on use, explaining privacy protections for the information).
    • Work with stakeholders to determine additional methods for SOGI data collection to fill immediate data gaps (e.g., “post-eligibility” survey of enrollees).
    • Communicate minimum data sharing and privacy guidance for SOGI data.

Consumer Outreach

Lack of consistent and accessible information about eligibility for Medicaid, CHIP, and subsidized Marketplace coverage continues to be an issue that significantly impedes enrollment of eligible but uninsured individuals. CMS should take the following steps to support states in improving outreach to consumers on affordable coverage options:

  • Elevate promising practices, toolkits, and other resources to help states implement/strengthen outreach efforts.
  • Continue and increase federal funding for Navigator functions with focus on key “hard to reach” populations.
  • Develop model outreach campaigns (e.g., strategies, tactics, and messages) that can be customized by states [as CMS is doing with public health emergency (PHE) unwinding].
  • Communicate to states the HealthCare.gov annual messaging and outreach strategy, and work with state Medicaid agencies and SBMs to align and amplify consistent messaging on Medicaid, CHIP, and Marketplace eligibility.
  • Support states on messaging strategies and education (e.g. grants, learning collaboratives) about culturally and linguistically appropriate communications.
  • Prepare standardized model notices and forms in various languages for state adaptation and use.
    • Remind states about the 75 percent Federal Medical Assistance Percentage (FMAP) that is available for translation and interpretation to support “enrollment of, retention of, and use of services” by children in families for whom English is not the primary language.[1]

CMS Question
How should states monitor eligibility redeterminations, and what is needed to improve the process? How could CMS partner with states to identify possible improvements, such as leveraging managed care or enrollment broker organizations, state health insurance assistance programs, and Marketplace Navigators and assisters to ensure that beneficiary information is correct and that beneficiaries are enabled to respond to requests for information as a part of the eligibility redetermination process, when necessary? How could CMS encourage states to adopt existing policy options that improve beneficiary eligibility redeterminations and promote continuity of coverage, such as express lane eligibility and 12-month continuous eligibility for children?

Targeted Enrollment Strategy State Plan Authority

Very few states have taken up the Targeted Enrollment Strategy state plan authority to leverage Supplemental Nutrition Assistance Program (SNAP) or other means tested eligibility information to enroll/renew adults into Medicaid coverage, largely due to the state plan required operational processes that require state Medicaid agencies to reach out to individuals and obtain additional information in order to align the SNAP income information. To increase states’ utilization of the Targeted Enrollment Strategy state plan authority, CMS should:

  • Work with states to develop a more streamlined and accessible Targeted Enrollment Strategy state plan option and update the state plan template.
  • Allow states to use section 1902(e)(14) waiver authority on a permanent basis to allow for the use of SNAP income to be used without conducting a separate Medicaid MAGI income determination. CMS is currently approving these waivers to support states’ federal continuous coverage unwinding processes and should develop a section 1902(e)(14) waiver template for states that could include program integrity assurances.

Streamlining Continuous Coverage Authority

Building off of the benefits of the federal continuous coverage requirement in ensuring continuity of coverage and care as well as the state plan authority for 12 months continuous coverage for children, CMS should develop simplified processes that enable states to establish continuous coverage requirements for Medicaid enrollees through section 1115 waivers. These processes could include:

  • Developing a fast track section 1115 waiver template for 12-months continuous coverage for adults.
  • Developing a fast track section 1115 waiver template for a period of continuous coverage for children and/or adults that is greater than 12 months (e.g., to enable children to remain continuously enrolled from zero to six years old).
  • Making permanent the Special Enrollment Period (SEP) for low-income families. HealthCare.gov has recently implemented a SEP for individuals with income under 150 percent of the federal poverty level. CMS could make this SEP permanent and advance sub-regulatory guidance to encourage SBMs to similarly offer a year-round enrollment opportunity for low-income people.

State Audits

State Medicaid eligibility and enrollment audits create significant additional work for states.  Auditor findings regarding program deficiencies are often based on lack of understanding of federal eligibility and enrollment regulation and guidance. CMS should support state Medicaid agencies:

  • Issue guidance, clarification, and/or education for state auditors regarding what is required of states with respect to Medicaid eligibility and enrollment.
  • Release an Office of Inspector General (OIG) circular that articulates state auditor parameters on eligibility and enrollment audits.
  • Issue guidance that state auditors should “hold harmless” state Medicaid agencies on audits and oversight penalties as states work to address PHE-related backlogs.

CMS Question
How should CMS consider setting standards for how states communicate with beneficiaries at-risk of disenrollment and intervene prior to a gap in coverage? For example, how should CMS consider setting standards for how often a state communicates with beneficiaries and what modes of communication they use? Are there specific resources that CMS can provide states to harness their data to identify eligible beneficiaries at-risk of disenrollment or of coverage gaps?

Tools to Respond to Returned Mail at Redetermination

  • CMS should identify additional federal data sources that could be incorporated into the federal data services Hub for updating contact information, including addresses.
  • CMS should also provide technical assistance to states on how to access state data sources that may contain more recent address information, such as from Immunization Information Systems, Health Information Exchanges, and the Department of Motor Vehicles.

Text Messaging

State Medicaid agencies are eager to leverage text messaging as a mechanism for reaching out to their enrollees to communicate important information. There are legal barriers, however, to routine communications with Medicaid enrollees via text. The Telephone Consumer Protection Act (TCPA) prohibits the automated sending of texts without prior consent in many circumstances, and organizations can face significant penalties for failing to comply with the law. The security rule under the Health Insurance Portability and Accountability Act (HIPAA) often requires text messages to be encrypted, and, depending on the devices and applications used by the sender and receiver, texts sometimes are not encrypted. Modest clarifications to past guidance issued by the Federal Communications Commission (FCC), in the case of the TCPA, and the OCR, in the case of HIPAA, may provide the necessary flexibility for state Medicaid agencies and their representatives to communicate with Medicaid enrollees via text. 

  • TCPA-Related Clarifications
    • In order to provide states, counties, Medicaid managed care plans, and their contractors with flexibility regarding text messages, CMS should work with FCC to release clarifications to FCC guidance. CMS should make two requests to the FCC. First, CMS should ask the FCC to clarify that a county that has been delegated authority to engage in Medicaid-enrollment activities should be given the same level of TCPA immunity as the state. Medicaid regulations explicitly permit states to delegate authority to determine Medicaid eligibility to a sister agency–which, in many states, operates through county offices.[2] In such a case, the county acts as an arm of the “single state agency” under federal law and therefore the county should be considered part of the state, to the extent it engages in text messaging activities related to its delegated powers.
    • Second, CMS should pursue a consent exception that would apply not only to counties but also to Medicaid managed care plans and contractors acting on behalf of states, counties, and plans. As noted above, the FCC has said that in certain situations–such as public health communications related to the pandemic–no consent is needed at all for texts and calls using autodialers. The FCC may be willing to consider a similar consent exception if the text message was sent for the purpose of communicating with a Medicaid enrollee about their enrollment status and/or the need to provide information related to enrollment.
  • HIPAA-Related Clarifications
    • Work with OCR to waive the encryption requirement entirely in cases where the communication was intended to facilitate continued Medicaid enrollment in the period following the COVID-19 PHE.
    • In the longer term, work with OCR to provide guidance regarding the circumstances under which the use of unencrypted text messages is appropriate by state Medicaid agencies, counties, Medicaid managed care organizations, and their contractors. OCR could indicate that if the text message contained no information on an enrollee’s diagnosis, treatments, or finances–and if the only protected health information (PHI) in the text related to the individual’s Medicaid enrollment status and basic demographic information, such as an address–then the risk to the enrollee’s confidentiality is sufficiently low that the use of unencrypted communications is reasonable. OCR could also state that an enrollee could consent to unencrypted texts by signing a Medicaid enrollment application, so long as the provision of a cell phone number was voluntary and the enrollment application clearly indicated that the enrollee could receive unencrypted texts by providing a phone number.

CMS Question
What actions could CMS take to promote continuity of coverage for beneficiaries transitioning between Medicaid, CHIP, and other insurance affordability programs; between different types of Medicaid and CHIP services/benefits packages; or to a dual Medicaid-Medicare eligibility status? For example, how can CMS promote coverage continuity for beneficiaries moving between eligibility groups [e.g., a child receiving Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) qualified supports who transitions to other Medicaid services such as home and community based services (HCBS) at age 21, etc.); between programs [Medicaid, CHIP, Basic Health Program (BHP), Medicare, and the Marketplace]; or across state boundaries? Which of these actions would you prioritize first?

Strengthening the Federally Facilitated Marketplace (FFM)

  • CMS should continue its work to assure that account transfers between Medicaid and the FFM work smoothly and that accounts contain all information needed to make an eligibility determination without requesting additional information from the applicant.
  • CMS should also provide to states robust monitoring and reporting data on HealthCare.gov inbound account transfers from states, including: take-up/QHP enrollment by income level; number and percentage of consumers who never applied through the FFM (unreached); number and percentage of consumers who applied and were determined ineligible for APTC coverage and denial reasons; number and percentage of consumers referred back to state Medicaid agencies for determination; and, number and percentage of consumers who “loop” between the FFM and Medicaid.
  • CMS should work with states to innovate and enhance the consumer planning shopping experience for individuals transitioning from Medicaid to the FFM. For example, CMS could issue guidance to states on the opportunities and necessary guardrails for leveraging enhanced direct enrollment technology to enable individuals to more seamlessly transition from Medicaid to QHP coverage. CMS should also improve the FFM by tailoring the shopping experience to offer consumers QHPs with: the same provider networks that were in the consumer’s previously enrolled Medicaid plan; frequently used providers; and plans with the lowest premiums and deductibles/cost sharing obligations.

Increasing Affordability and Smoothing Transitions Across Insurance Affordability Programs

  • CMS should require HealthCare.gov issuers to offer defined, standardized plans, including zero deductible and low premium QHP options, and encourage SBMs to do the same.
  • As more states explore the option of BHP, CMS should update BHP guidance taking into account lessons learned and best practices from other BHP states, the individual market context a decade post-the Affordable Care Act (ACA) implementation, and additional flexibilities that states need to adopt the BHP.
  • CMS can work in partnership with states to identify existing barriers to leveraging section 1332 waivers and issue guidance on available flexibilities and solutions in order to maximize innovation.

CMS Question
What are the specific ways that CMS can support states that need to enhance their eligibility and enrollment system capabilities? For example, are there existing data sources that CMS could help states integrate into their eligibility system that would improve ex-parte redeterminations? What barriers to eligibility and enrollment system performance can CMS help states address at the system   and eligibility worker levels? How can CMS support states in tracking denial reasons or codes for different eligibility groups?

Standardize Denial and Termination Reason Codes for State Monitoring and Comparison Nationwide

Public reporting of denial disenrollment reason codes could be used to identify issues, monitor trends, and pinpoint ways to improve coverage rates among eligible individuals. Currently, however, denial codes have become virtually useless for tracking why people are denied or terminated from Medicaid/CHIP–in part because neither the federal government nor states use this data for any purpose. To make such reporting maximally efficient, CMS should work with states to standardize reason codes for denials and terminations to improve the quality of the data for in-state and cross state analyses:

  • Public reporting of standardized codes for denials will enable CMS and states to identify if states are, for example, outliers on procedural denials (e.g., denied for failure to return paperwork). Meaningful reporting of the reasons that applications are denied will enable states to take corrective actions (either voluntarily or as required by CMS) if trends are identified that suggest procedural or other administrative barriers to enrollment.
  • Standardized measures also are needed to assess the extent to which churn drives up administrative costs and undermines access to timely and appropriate healthcare for eligible enrollees. Data also should be stratified by race/ethnicity to asses equity implications.

[1] See SSA 1903(a)(2)(E).

[2] 42 C.F.R. § 431.10(c)(1)(i).