Jun, 27, 2024

Engaging Medicaid Members: New Requirements in the Medicaid Access Rule

Julia Smith, Manatt Health; Sally Mabon, State Health and Value Strategies

Overview

On April 22, the Centers for Medicare & Medicaid Services (CMS) released the Ensuring Access to Medicaid Services final rule (the “Access Rule”), which establishes new requirements for states regarding the engagement of people enrolled in Medicaid to inform policy and program design. Under the Access Rule, states will need to create and support a Beneficiary Advisory Council (BAC) composed solely of current and former Medicaid enrollees, their family members, and paid and unpaid caregivers. The Access Rule also calls for the creation of a Medicaid Advisory Committee (MAC), comprising a diverse array of stakeholders, including members drawn from the BAC. The BAC and the MAC will replace the current requirement that states establish a Medical Care Advisory Committee (MCAC) and will take effect July 9, 2025, with some requirements phased-in over a longer time period (described in more detail below).

The new requirements provide states with the opportunity to engage community members in a way that builds and maintains trust and strengthens the Medicaid program. To date, few states have sought to engage Medicaid enrollees, their family members, and caregivers as prescribed by the BAC. Implementation of the BAC and MAC requirements offers states an opportunity to shift from a transactional to a transformative relationship with the community served by the Medicaid program, which will not only build trust, but generate insights and feedback that can improve the state’s Medicaid program.

Beneficiary Advisory Council and Medicaid Advisory Committee Membership Requirements

States are encouraged to include a diversity of perspectives on the BAC and MAC. In the preamble to the final rule, CMS reiterated its view that “advisory committees and councils can be most effective when they represent a wide range of perspectives and experiences,” and encouraged states to seek diverse representation for the BAC and MAC along various dimensions (e.g., geographical, enrollees with different demographics or healthcare needs, providers representing different types of services).

Members of the BAC and MAC will be selected by the Medicaid director. The final rule provides that BAC and MAC members must be appointed by the director of the Medicaid agency (eliminating the option in the proposed rule of appointment by a higher state authority). CMS also replaced the word “appointed” with “selected” in the final rule to make clear that states must use a selection process that involves interested parties submitting applications, which the Medicaid agency reviews before making its selection.

States will establish term limits for BAC and MAC membership. CMS finalized its proposal that members of the MAC and BAC serve for a length of term determined by the state, and further provided that members may not serve consecutive terms so as to “ensure that new voices and new perspectives” are introduced to the MAC and BAC. (CMS clarified in the preamble to the final rule that members may serve multiple non-consecutive terms.) CMS also finalized its proposal that members be selected on a continuous and rotating basis (i.e., once a member’s term has been completed, the state must select a new member).

BAC Membership

BAC members must have lived experience of the Medicaid program. The BAC must be comprised entirely of individuals who are or have been Medicaid enrollees, or family members or caregivers of enrollees. The final rule clarifies that both paid and unpaid caregivers are eligible. CMS plans to issue a toolkit in the latter half of 2024 for states with model practices, recruitment strategies, and strategies for effectively facilitating enrollee participation.

MAC Membership

Some BAC members will also be members of the MAC.[i] Initially, CMS proposed that at least 25% of the MAC’s membership consist of BAC members. In the final rule, CMS opted to phase in this requirement, providing that 10% of MAC members must also be members of the BAC for the period July 9, 2025 through July 9, 2026; 20% for the period July 10, 2026 through July 9, 2027; and 25% thereafter. In the preamble to the final rule, CMS shared its view that “it would be more effective to have consistency in the BAC members that attend the MAC meetings,” but noted the option of rotating which BAC members attend the MAC meetings to alleviate the burdens of MAC participation for any individual BAC member.

CMS prescribed specific stakeholders to be included in the MAC. The remainder of the MAC must include representation of at least one member from each of the following categories: state or local consumer advocacy groups or other community-based organizations that represent the interests of, or provide direct service to, Medicaid enrollees; clinical providers or administrators who are familiar with the health and social needs of Medicaid enrollees; participating Medicaid managed care plans or relevant state associations; and other state agencies that serve Medicaid enrollees, as ex officio members. In the final rule, CMS further specified that these ex officio members must be non-voting members.

Scope of the BAC and MAC

The BAC and MAC will advise states on a broad range of topics. The new BAC and MAC will advise the state Medicaid agency on a wider range of topics than “health and medical services,” which was the purview of the MCAC. The topics include:

  • Additions and changes to covered services
  • Coordination of care
  • Quality of services
  • Eligibility, enrollment, and renewal processes
  • Enrollee and provider communications;
  • Cultural competency, language access, and health equity;
  • Access to services (newly added in the final rule); and
  • Other issues that impact the provision or outcomes of health and medical services.

 

Specific topics of discussion for these bodies will be determined through collaboration with the BAC and MAC and based on state need. States are permitted, but not required, to have the MAC perform the functions of the home care advisory group, also required under the Access Rule, as long as the MAC satisfies all relevant requirements.

In the preamble to the final rule, CMS clarified that:

  • States can adapt existing committees to meet requirements of the BAC and MAC. States with existing advisory committees can use those committees to fulfill their BAC and MAC obligations as long as those committees meet (or are modified to meet) the final rule’s requirements, and declare in their publicly posted bylaws that the group is being used to fulfill the regulatory requirements of this section (42 CFR § 431.12).
  • States should not use their BAC or MAC to fulfill tribal consultation requirements. This applies even if, for example, the MAC includes an Indian Health Program or Urban Indian Organization among its members.
  • The BAC can fulfill the requirements of a Development and Implementation Council. For Community FirstChoice programs, states may use their BAC to fulfill the requirements of a Development and Implementation Council, subject to meeting applicable requirements for that council (42 CFR § 441.715).

BAC and MAC Meeting Requirements

The BAC and MAC must meet at least once per quarter. CMS finalized its proposal for the BAC and MAC to meet at least once per quarter and hold off-cycle meetings as needed. The BAC must meet separately from the MAC and in advance of each MAC meeting to promote BAC members’ preparation for, and participation in, each MAC meeting.

States must offer a variety of meeting participation options. With respect to meeting format, the final rule requires the BAC and MAC to offer a rotating variety of meeting attendance options—all in-person attendance, all virtual attendance, and hybrid (in-person and virtual) attendance—except that states must have a telephone dial-in option for MAC and BAC members, regardless of the format selected. (The proposed rule required a variety of formats, but did not require rotation.) In response to public comments, the final rule adds a requirement that each BAC and MAC meeting agenda include an opportunity for members to disclose any conflicts of interest.

BAC and MAC Public Access and Reporting Requirements

Two MAC meetings a year must be open to the public. CMS finalized its proposal that the MAC must make at least two meetings per year open to the public, with a dedicated time for public comment. By contrast, the BAC may decide for itself which meetings (if any) to open to the public. In addition, the state must publicly post the BAC and MAC bylaws, membership lists, and meeting minutes, as well as the process for member recruitment and selection. In response to public comment, CMS added to the final rule an option for BAC members to choose whether to be identified by name in public materials such as membership lists and meeting minutes.

The MAC must publish an annual report. CMS finalized its proposed requirement that the MAC, with support from the state, submit an annual report describing its activities, topics discussed, and recommendations, as well as the state’s responses to those recommendations. The report must include a separate section providing the same information for the BAC, including its recommendations and state responses. After providing MAC members with final review, the state must post the report to the state’s website. In response to comments about the burden associated with creation of an annual report, in the final rule, CMS provided that states will have two years from the effective date of the final rule to finalize the first annual MAC report and 30 days thereafter to post it to the state Medicaid agency’s website.

State Support for the BAC and MAC

States must provide staffing and financial support for the BAC and MAC. Building on existing requirements for states to provide staff support for their MCACs, CMS finalized its proposal to require that states provide staffing, financial, and other administrative support for their BAC and MAC. In the preamble to the final rule, CMS clarified that reimbursements (such as for meals, mileage, and lodging) do not count as income for Medicaid eligibility purposes, but daily stipends and similar compensation would be countable income for both modified adjusted gross income (MAGI) and non-MAGI methodologies. For non-MAGI methodologies, states may submit a SPA to disregard such stipends. CMS also clarified in the preamble that Medicaid staff who attend BAC and MAC meetings are not expected to “be a BAC/MAC co-chair, nor to facilitate these meetings.” As proposed, states will be able to claim federal financial participation for BAC and MAC activities at the standard administrative match rate of 50%.

[i] Note that the compliance dates for BAC membership in the MAC were updated by CMS pursuant to technical corrections issued on June 27, 2024.