Proposed Regulations Intended to Ensure Meaningful Access to Medical Care

By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

What good is Medicaid insurance if doctors won’t provide preventive care and pharmacists won’t dispense medications?  When reimbursement rates are too low, doctors and pharmacies can decline to provide care.  Then without meaningful access to medical care and services, individuals are likely to experience dire health consequences that are much more expensive to treat in emergency rooms. 

To lower their short term Medicaid costs, some states are slashing rates reimbursement for medical providers.  But lowering rates only for low-income Medicaid beneficiaries does not drive down the cost of health care.  Instead, providers just stop serving Medicaid patients and keep getting paid higher rates by everyone else.  And without preventive care, beneficiaries are prone to end up seeking emergency treatment, eliminating in the long term any short term fiscal savings.

To address the issue of rates so low that treatment is refused, the Centers for Medicare and Medicaid Services (CMS) issued proposed regulations last week that explain the requirements of federal law when states seek to lower Medicaid rates.  The regulations “clarify that beneficiary access must be considered in setting and adjusting payment methodologies for Medicaid services.” 

Consider the case of six-year old Austin Brooks in North Carolina highlighted in Antrican v. Odom.  His grandmother could not find any dentist in the area willing to give him preventive treatment.  After he experienced oral pain, his grandmother found a dentist three hours away who would treat him.  Four of Austin’s front teeth had to be pulled and several of his remaining teeth were capped, due to his inability to get preventive care.  Similarly, Loretta Sturdivant in Chicago could not find any obstetrician willing to accept Medicaid reimbursement for prenatal care for the first six months of her high risk pregnancy, documented in the case Memisovski v. Patla. 

And when California slashed Medicaid reimbursement rates for prescription medications below costs, pharmacists stopped dispensing drugs to beneficiaries.  The Supreme Court has taken certiorari in the California case, now called Douglas v. Independent Living Center of Southern California, to address whether providers and beneficiaries can bring suit in federal court to stop such cuts. The Court left to CMS the issue of what federal law requires states to do in setting rates, and CMS has now proposed regulations to flesh out the statutory requirement that rates be set at a level sufficient for access to care.

According to a CQ Health Beat story, GOP governors and members of Congress are planning “stiff resistance” to the proposed regulations, because they limit flexibility to balance state budgets.  But the regulations simply explicate the federal Medicaid statute’s requirement that states ensure beneficiaries have access to health care items and services.  Since the federal government pays at least half of the costs of Medicaid, it makes good budget sense to require that beneficiaries can access preventive care and medications, rather than landing in emergency rooms.