Originally Posted on PCG’s Health Policy News on December 19, 2022.
Author: Margot Thistle
Predictions for 2023
As is customary for Health Policy News, as the year comes to an end, we are spending time thinking forward about topics and developments the Health Policy News team we will be following in 2023. Below we provide predictions about key developments expected in 2023.
Impending Policy Developments
2023 is expected to bring a renewed look at access for both Medicaid and commercial health plans from the regulatory perspective.
The Centers for Medicare and Medicaid Services (CMS) released a Medicaid Request for Information (RFI) in February 2022 that asked states to opine on the barriers to enrolling in and maintaining Medicaid coverage to assist CMS in crafting standards to ensure timely access to critical services such as behavioral health care and home and community-based services. The questions included in the RFI aimed to garner insights on ways CMS could better support states on policy areas such as strategies to maintain consistent coverage, monitoring redeterminations, how to establish a minimum standard for equitable and timely access to providers and services, as well as what data can support and monitor these goals. As we approach the end of the COVID-19 Public Health Emergency (PHE), CMS guidance and flexibility for states to maintain coverage and ensuring access will be particularly important. HPN will continue to monitor developments related to the RFI as well as any policy making resulting from the responses received.
This trend continues on the commercial plan side, with proposed changes included in recently released draft 2024 Notice of Benefit and Payment Parameter for 2024 and the draft 2024 Letter to Issuers in the Federally-facilitated Exchanges that will be finalized in early 2023, allowing health insurance carriers to complete plan design and rates. The proposed guidance seeks to support consumer plan choice, maintain continuous coverage and create an option for a new special enrollment period tied to the loss of Medicaid/CHIP eligibility, and make it easier for people to get information and enrollment assistance. Additionally, the scrutiny on networks by states and HHS will delve into the wait times to ensure timely access to providers. This year’s proposed guidance comprised largely of policy adjustments rather than major resets.
For a look into the proposed guidance, click here for PCG’s summary of policy changes.
An issue front of mind to many Medicaid agencies and insurance companies as they look toward 2023 is the work associated with the upcoming end of the COVID-19 Public Health Emergency (PHE), which is expected to come by mid-year. As we wrote about in our fall white paper and discussed on the fall webinar, when the Continuous Coverage Requirement (CCR) expires, states will have up to 12 months to return to normal eligibility and enrollment operations.
Sample Timeline for Unwind
With over 80 million Medicaid enrollees, unwinding the CCR will be a huge undertaking for state Medicaid agencies. States are facing several challenges that are compounded by workforce shortages, and backlogs. For example, one state Medicaid department indicated in a single county they had 126 open jobs, another department notes a 28% vacancy rate while also experiencing 45% higher enrollment than pre-PHE.
Just this week, twenty-five state governors signed a letter that urged the administration to provide notice of the end of the PHE, which is currently set to expire on January 11, 2023. Since states have not received an official 60-day notice, it is assumed the PHE will be extended until April. In their letter, the signatory states advocated for certainty from the administration, and an end date to begin the unwind process by setting the expiration for April 2023. This will continue to be a focus for HPN in 2023, and we will provide guidance and best practices for states and clients as the PHE unwind process begins.
Pending Supreme Court Decision could Impact the Enforcement of Rights under the Medicaid Program
Also expected in the first half of 2023 is a decision in the case of Health & Hospital Corporation of Marion County Indiana v. Talevski. The Supreme Court heard oral arguments on the call in November, so a decision will be issued by the end of the Court’s session in June. The case centers around a claim that a public nursing facility’s treatment violated the Federal Nursing Home Reform Act (FNHRA), which establishes minimum standards of care to which nursing homes that participate in the Medicaid program must adhere. The lawsuit was brought under Section 1983 Of the Civil Rights Act, which allows for civil action to enforce federal rights.
The Federal district court dismissed the case, finding that Medicaid enrollees cannot enforce the FNHRA, but that decision was overturned by the appeals court. The Supreme Court granted “certiorari” to hear the case in May, followed by oral arguments in November.
The impact of the Supreme Court decision will have much broader impact than any decision related to the merits of the FNHRA claims. The decision is expected address whether Section 1983 applies to federal programs such as Medicaid and the Children’s Health Insurance Program, among others, and, as such, could impact the ability of individuals to bring lawsuits to enforce their rights under Federal law related to those programs.
Click here to read a detailed analysis of the case and its potential impacts.