July 18, 2023 – From the Desk of the National Association for Home Care & Hospice

On Monday, July 3, 2023, the National Association for Home Care & Hospice (NAHC) and Home Care Association of America (HCAOA) submitted a joint comment letter on the proposed Medicaid Access Rule. In our letter, we express support for many of the provisions in this proposed rulemaking. We specifically support and provide comments that we believe would strengthen and improve the following provisions:

• Access Reporting: 42 CFR §441.311(d);
• Payment Rate Transparency: 42 CFR §447.203(b)(1);
• Interested Parties Advisory Group: 42 CFR §447.203(b)(3)(ii)(6);
• State Analysis Required for Payment Restructuring and Access: 42 CFR §447.203(c);
• HCBS Quality Measure Set: 42 CFR §441.312;
• Strengthening Oversight of Person-Centered Plans:  §441.301(c)(3)(ii)(A);
• Incident Management System: 42 CFR §441.302;
• HCBS Grievance System: 42 CFR §441.301(c)(7); and
• Medicaid Advisory Committee and Beneficiary Advisory Group: 42 CFR §431.12.

We also provide recommendations that we believe would make the following provisions more effective and improve the ability to successfully implement:

• Definition of DCW: 42 CFR §441.302(k)(1)(ii);
• Reporting on Proportion of Payments to DCWs: 42 CFR §441.311(e); and
• Payment Rate Disclosure: 42 CFR §447.203(b)(3)(ii).

Unfortunately, the HCBS Payment Adequacy provision at 42 CFR §441.302(k)(3)(i) is the most impactful part of this rule and is untenable for our members. We provide significant analysis and detail to demonstrate why:

• The proposal lacks statutory authority;
• There is no data to support it;
• It contradicts CMS HCBS quality efforts;
• Existing policies do not support such a mandate;
• State rate models demonstrate inconsistency of the proposal with HCBS practices;
• Provider cost data also does not align with the proposal;
• Provider surveys indicate significant confusion and negative impacts for patients and caregivers;
• The mandate is administratively complex and would be extremely challenging to enforce;
• The proposal would create inequities within and across states;
• The proposed rule undermines state authority; and
• The proposed rule would disproportionately impact small and rural providers.

We believe that there are opportunities to implement regulations that improve the structure and outcomes of state HCBS reimbursements and offer an alternative proposal. We believe that our proposal would enhance HCBS payment methodologies in a way that:

• Provides more structure for state rate-setting processes;
• Creates a transparent approach that clearly delineates the components of a Medicaid reimbursement methodology;
• Supports and increases worker compensation;
• Maintains state flexibility and autonomy regarding provider rate setting;
• Preserves the ability to perform both required and supplementary administrative activities that are crucial to high-quality HCBS delivery; and
• Adheres to the statutory requirements regarding Medicaid payment adequacy found at Section 1902(a)(30)(A) of the Social Security Act.

NAHC and HCAOA look forward to ongoing discussions and collaboration with CMS, states, and other partners to strengthen and improve HCBS, increase wages for workers, and supports ongoing provider viability.