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Almost one-tenth of the population wants, but does not obtain, dental care. Unmet dental care needs are highest among individuals without insurance see Figure 6. The lack of dental providers is a major barrier to obtaining dental care. There has been a significant decline in the number of practicing dentists over the past twenty years, and a projected decline in dental school graduates see Figure 7a.
Between and , six dental schools closed, followed by one more in During this time, only one new school has opened. Dental schools have also experienced reductions in class sizes — the percent of graduating dentists declined by 40 percent between and The lack of providers is even more pronounced in underserved areas. The majority — 90 percent — of dentists practice in the private sector. Safety-net facilities — health care centers that serve uninsured individuals or individuals who do not have the money to pay for care — are often located in isolated, rural areas and poor, urban areas.
Safety-net facilities, including community-based clinics, migrant and rural health centers, school-based programs, and mobile van programs, are few in number and many do not provide dental care. Only 56 percent of federally-funded community and migrant health centers provide dental care. Compared to the general population, racial and ethnic minorities are under-represented in the dental profession see Figure 7b.
Minority dentists are more likely to practice in minority communities. African-American and Hispanic-American dentists disproportionately serve African-Americans and Hispanic Americans, respectively, in their private practices. Substantial increases in the proportions of ethnic and racial minorities in the population heighten the need for a more diverse dental workforce. Additionally, dentists and their staff are more likely to need special skills, sensitivity, and competency to deal with complex cultural and social issues.
Strategies to increase the supply of dental providers have not been widely implemented. Additional resources could, however, increase the number of dental providers available today and in the future. Although the establishment of new dental schools is an important first step, enrollment also needs to be increased. Barriers that discourage students — generally, as well as from low-income, minority, and rural populations — from choosing a dental career must be removed.
This can be done by providing incentives such as scholarship, tuition reimbursement, and loan repayment or forgiveness programs. The Indian Health Service IHS operates a loan repayment program — where health professionals agree to practice full-time at an IHS facility or tribal site in exchange for repayment of their educational loan. However, funding for this program has remained relatively stable for the past eight years, while student debt has nearly doubled during this time.
Recently, additional resources were provided by the federal government to help address the dental shortage in underserved areas. Most state laws restrict the provision of preventive oral health services to dentists. Dental hygienists are allowed to provide a defined scope of preventive services, though state laws require them to be supervised by a adentist.
Several states have expanded the duties of dental hygienists and assistants. Colorado, for example, allows dental hygienists to provide oral health services without the supervision of a dentist. Washington also allows hygienists to practice independently under certain conditions. The reimbursement procedure has not been changed, however. Dental hygienists do not have their own provider number for direct billing, and therefore must maintain ties to a dentist.
Because the enactment of changes to state laws may be a slow and difficult process, some states maximize resources that are currently available. For example, a program in North Carolina trains medical providers to apply fluoride varnish to children between the ages of nine months and three years. The program has reduced cavities by up to 30 percent.
Medicaid reimbursement rates for oral health services are low compared to fees in the private sector. Low dental reimbursement rates, which vary by state, are a major deterrent to provider participation in Medicaid. According to a survey by the American Dental Association, the number of dentists enrolled as providers in Medicaid ranged from 1 in Delaware to 3, in New Jersey.
Several states, including Michigan and New Mexico, have increased the number of Medicaid providers by raising reimbursement rates. Being insured or having access to a dental provider does not ensure service use. Some individuals might not know when and how to obtain dental services. Outreach activities and efforts that coordinate oral health care with other health care services could increase service use. Language barriers may also prevent individuals from accessing dental care. For example, non-English speaking beneficiaries in the California dental Medicaid program Denti-Cal report substantial difficulty communicating with their dental providers.
Staff at each dental care center participates in cultural sensitivity classes, and there is a bilingual staff member at each center to help ensure that the Hispanic population receives accurate information. In addition, patients are provided with translated documents, and a telephone interpretation service is available to help non-English speaking patients make appointments. In recent years oral health has been gaining more attention. Although efforts to increase access to services are increasingly more common, there is still much work that could be done — at the individual, professional, and community level — to improve the oral health status of our population.
Regulators should not passively rely on complaints to ensure insurer compliance. Regulators should also not simply rely on accreditation status to ensure network adequacy. Accreditation can provide an additional check on adequacy, but cannot substitute for public regulation. Some enrollees will inevitably be unable to receive needed care in network plans. All network plans should thus be required to provide an exceptions process for enrollees who cannot find within-network providers, either because of their specialized needs or because of network capacity.
Requests for exceptions in urgent cases should be handled within twenty-four hours. Regulators should collect routinely data to monitor the frequency of use of out-of-network providers, the cost of out-of-network services, and the use of the exceptions process. If a provider and a plan terminate their contract or a provider is moved from one cost-sharing tier to a different tier, an enrollee who is pregnant, terminally ill, or under a course of treatment for a serious condition should be able to continue treatment at the same cost-sharing level for ninety days, or until a baby is delivered or the condition resolved.
The Centers for Medicare and Medicaid Services CMS has recently proposed regulations that would require federally facilitated marketplace qualified health plans to provide similar continuity of care protections. Consumers should be protected from balance billing unless they have freely assumed the risk by knowingly seeking care from a non-network provider fully aware that they will receive a balance bill. Federal law now requires network plans to pay minimum provider rates and to not charge consumers higher coinsurance or copayments for out-of-network emergency care.
It does not, however, ban balance billing in emergency situations. A few states have laws requiring insurers to hold consumers harmless for emergency out-of-network care, but many states do not. Protections are also needed for consumers who have exercised reasonable caution to make sure that they are receiving treatment from in-network providers but nonetheless receive out-of-network services, for example from anesthesiologists, pathologists, or surgical consultants.
CMS has recently proposed a rule under which a marketplace health plan could provide notice to an enrollee at least ten days in advance of the receipt of services from an in-network facility that there was a possibility that the enrollee might receive out-of-network services while at the facility. This is a step in the right direction, but does not go far enough. When consumers schedule a procedure with an in-network provider in a nonemergency situation, they should be informed as to whether professionals that might be involved in the procedure are out-of-network and, if so, be offered the option of choosing in-network providers.
If consumers end up being treated by out-of-network providers despite reasonable efforts to receive only in-network care, an arbitration process should be provided to resolve the issue between the provider and insurer without involving the consumer. One goal of the ACA is to provide consumers with a range of health plan choices.
Another is to encourage competition among insurers to constrain premium growth and improve quality and value. To accomplish both of these ends, the ACA created exchanges—now called marketplaces—where consumers can shop for individual and small group coverage and insurers can compete for their business. The ACA constrains marketplace choices and competitions in several ways.
Insurers are restricted from competing in the way they have traditionally—by avoiding high-risk enrollees or charging them higher premiums. Insurers also cannot compete in the individual and small group market by offering skinny benefit packages.
All insurers in these markets must cover a reasonably comprehensive package of essential health benefits. Qualified health plans sold through the marketplaces must also meet other requirements, including inclusion of essential community providers that cover low-income and high-need enrollees, and accreditation by recognize accrediting entities. Within these constraints, insurers are free to compete for consumer business, and consumers are free to choose the plan that they think best suits their own needs and resources.
Although the extent of competition, and the ways in which insurers have competed, have varied from state to state, and from one region to another within a given state, competition has been robust throughout much of the country. Consumers have, on average, five insurers and fifty health plans to choose from per county in the open enrollment period.
Insurer competition has focused intensively on premiums. In a recent Commonwealth Fund survey, 41 percent of participants reported that low premiums were the most important factor in their selection of a qualified health plan see Figure Another 25 percent identified out-of-pocket payments as most important, with only 22 percent reporting that access to a preferred provider was most important.
Narrowing provider networks provides the most common approach used by insurers to lower both premiums and out-of-pocket payments. Fifty-four percent of consumers who report that they had the opportunity to save money by enrolling in a QHP with a narrower provider network chose to do so. Insurers also compete by offering a range of cost-sharing alternatives.
Although cost-sharing packages must meet actuarial value standards, there are many different ways in which plans can be designed to meet the same actuarial standard. Different cost-sharing packages may be attractive to different consumer groups.
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Although, as we noted earlier, high cost-sharing may harm low-income populations, within limits, diversity and choice in cost-sharing alternatives is beneficial to consumers. Competition in this area, however, also imposes significant possibilities for confusion, imposing large responsibilities for processing information on individual consumers. There is evidence that premiums are lower in marketplaces in which many insurers actively compete. The challenge is to improve consumer choice while managing the accompanying cognitive and informational burdens.
In the run-up to the implementation of the ACA, proponents occasionally spoke of the process of buying marketplace coverage as something that could be done with the ease of selecting a book on Amazon. That vision was over-optimistic, given the complexity of insurance products. The current consumer experience, in both the state and federal marketplaces, certainly does not approach that standard. The sheer volume of Americans who have used the marketplace accounts for much of the technical challenge.
According to a recent Commonwealth Fund report, one-quarter of all U. Fifteen percent of visitors enrolled in Medicaid; 30 percent enrolled in a private plan. Each of these individuals required extensive information processing, linking across multiple federal agencies and qualifying health plans, including identity verification, citizenship checks, and the computation of premium tax credits.
These challenges crashed the initial launch of the federal healthcare. They still affect the consumer experience in many ways. With due allowance for inherent complexity, the human experience interacting with the new marketplaces remains mediocre. Partly as a result of these shortcomings, consumers often err in choosing marketplace health plans. Survey data collected in —15 by the Commonwealth Fund underscores the challenge.
The low response rate Yet the overall pattern is consistent with other data and media accounts. Consumers require significant help making sense of complex provider networks; premiums, deductibles, copayments, and coinsurance; and pharmaceutical formularies. Improved decision aids could help consumers make better and more informed choices. This is a critical concern to ensure that individuals obtain affordable coverage, and to ensure that marketplace competition disciplines premium increases across plans.
The dynamics of the open enrollment process underscored the importance of active consumer comparison-shopping. An individual who purchased the cheapest silver plan and retained it in would experience an average 8. That same consumer, if she had chosen the cheapest silver plan, would have experienced only an average 1. One-third of re-enrolling marketplace participants changed plan metal levels in The remaining two-thirds of metal plan participants retained their plan level. These likely will exhibit similar patterns.
Some tools for improving consumer decision-making are emerging in the federal marketplace and across the states. This is a major advance over the initial open enrollment, which generally required individuals to establish personally identified marketplace accounts before gaining access to such information. For the open enrollment period, healthcare.
Materials recently released by CMS indicate important changes for the current marketplace. These include faster and improved browsing and account management, more user-friendly navigation, and simplified re-enrollment processes with comparisons to other local available plans. A new out-of-pocket cost calculator helps consumers estimate overall costs, beyond the monthly premium.
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This feature provides further information on premiums, deductibles, and co-pays for each plan, based on different anticipated levels of health care utilization. New doctor and prescription drug lookup features will provide consumers with more readily searchable information about network and prescription-drug coverage in different plans. By , additional data will be incorporated, including plan quality ratings and the results of consumer satisfaction surveys. A recent paper by economists Ben Handel and Jonathan Kolstad exemplifies how personalized decision supports and defaults could make marketplaces more transparent and competitive, and also less burdensome to individual consumers.
These authors make several proposals to guide consumers towards plans most likely to match their projected health needs, network of providers, preferences about risk, and other factors. More should be done to integrate decision-making and consumer support tools with the predictable needs of Americans with chronic conditions. Expert organizations such as the American Cancer Society could play a valuable role in preparing materials and automated decision aids that help consumers assess the quality of qualified health plans in treating specific conditions.
Although all of these tools will be helpful, they are not sufficient. Navigators and other types of enrollment assisters, including traditional agents and brokers, must help. The most knowledgeable consumers may already have signed up for coverage, leaving many remaining uninsured who will need outreach and other services to obtain coverage and financial help. According to one recent survey, half of uninsured adults who were potentially eligible for financial help had not heard about subsidies or looked for information on the new marketplaces.
When the ACA first launched, the federal government financed much of this human help, funding many programs that help consumers with the mechanics of plan enrollment and marketplace subsidies. During the first open enrollment period, some 4, assister programs with more than 28, staffers and volunteers helped nearly 11 million consumers. Some policymakers had hoped that the need for such supports would decline as the ACA became a permanent fixture and the new marketplaces enrolled increasing numbers of the previously uninsured. Experience in Massachusetts and elsewhere suggests these hopes are misplaced.
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A particularly important challenge arises in reaching severely disadvantaged populations, such as individuals with substance use disorders or those under the supervision of the criminal justice system. The federal government can help to fill this gap. A large city such as Chicago might have additional specialists, who would be available to assist individuals with complicated health conditions or life circumstances, and to assist others such as Medicaid-eligible indigent individuals who would otherwise remain uninsured.
Such costs may be offset by the savings to states of increased Medicaid enrollment, and by savings to both individuals and the federal government if such enrollment assisters could help marketplace participants more effectively comparison-shop different plans. Private brokers and agents can also play a useful role.
Some ACA supporters were initially skeptical that brokers could still play a valuable role once state marketplaces were implemented. In part because of initial implementation difficulties, but also because of their specific expertise and experience in the insurance market, brokers and agents have played an important and continuing role.
Rather than being dis-intermediated by the new marketplaces, brokers are accounting for a surprisingly high proportion of enrollment in California, Kentucky, and other states. Such collaboration also requires regulation of potential conflicts of interest and new training regarding low-income consumers and other populations likely to participate in state marketplaces, who have rarely interacted with agents or brokers before.
Improved network and formulary transparency would greatly improve the consumer shopping experience. Federal regulations and the laws in some states require health plans to make their network directories and drug formularies available online and to update them regularly. Comprehensive federal regulations, however, apply only to qualified health plans sold through the ACA marketplaces and to Medicare Advantage and Medicaid managed care plans , and state laws and regulations do not apply to self-insured group health plans, which cover the majority of employees covered through employee benefit plans.
ERISA, which does cover employer plans, imposes less rigorous network disclosure requirements. Transparent network coverage is necessary to ensure that consumers who enroll in narrow network plans understand the constraints they are accepting and can determine whether the providers they want or need are in-network. For example, McKinsey in its analysis of networks defines broad networks as those with 70 percent of all hospitals in the rating area participating, narrow networks with 31 percent to 70 percent of all hospitals, and ultra-narrow networks with 30 percent or less of all hospitals participating.
Plans should also describe the criteria used for determining network participation, the cost differentials for enrollees who use in- or out-of-network providers, and how balance bills are handled. Provider directories should be readily available online and in paper form. These must be easily searchable and understood by the general public. Consumers should be able to determine whether specific providers with whom they have established relationships, specific types of specialties that they need, providers in their geographic location, or providers who speak their language or are accepting patients, are available in a network before they sign up for it.
Directories for individual and small group plans should be available to the public online without the need to log-in or to provide a password. Directories for all individual market plans should also be provided by insurers in machine-readable form to permit private companies to create search tools. Directories should include, and be searchable by, information on providers including name, contact information, location, specialty, languages spoken, and whether or not the provider is accepting patients.
The recently launched federally facilitated marketplace doctor lookup tool should be supplemented by private marketplace search tools. If a network is tiered, providers should be identified and be searchable by tier. The directory should clearly define the ramifications of tiered status in terms comprehensible to ordinary consumers.
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Consumers should also be able to trust the accuracy of provider directories. Directories should be updated monthly. Only a handful of states currently require this, although CMS now require monthly updates from QHPs in the federally facilitated marketplaces. Network directory updates should be filed with state insurance regulators, who should make reviewing network directories part of their regular market conduct analysis, as well as respond to complaints about directories.
Trusted consumer organizations such as Consumers Union or Consumer Checkbook could also rate plan networks for their comprehensiveness and quality. Formularies should be available online and in machine-readable form and regularly updated. Insurers and group health plans should not be allowed to remove drugs from a formulary or change its tier status within a plan year unless the drug is determined to not be safe or effective, a generic form of a previously brand-name only drug becomes available, or an over-the-counter equivalent of the drug becomes available.
Nevada has recently considered a formulary regulation that takes this approach. Consumer shopping in the non-group market could also be improved through greater standardization. While it is important for consumers to have options in insurance markets and while product innovation can be beneficial to consumers, consumers do not benefit from having available many plans with minimal and confusing differences. Several state marketplaces have developed standardized designs for marketplace plans. The California marketplace requires insurers to offer plans in each of the four metal tiers and to offer a standardized plans in each tier.
Marketplaces should develop a limited number of standard product designs and require insurers that want to offer products in the market to offer those products. Insurers could also be allowed to offer a limited number of nonstandard products, but would have to justify why the product is valuable for some specific group of consumers and that offering such a product would not aggravate risk-segmentation or deter high-cost consumers.
Seventy-two million Americans are enrolled in Medicaid, At this writing, twenty states have chosen to opt out.
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This process should continue. Indeed, ongoing dialogue between conservative state officials and the Obama administration may be the most effective bipartisan negotiation now occurring in health policy. And states could be offered additional incentives to expand Medicaid. Finally, several steps, outlined below, could be taken to make Medicaid more beneficial to Medicaid beneficiaries.
The Congressional Budget Office estimated that the federal government will pay 93 percent of the costs of the Medicaid expansion between and The additional cost to states represents a 2. Economic analyses indicate that the local economic impact of Medicaid expansion is highly favorable to state government and to state economies. One simple response to these concerns would be for the federal government to assume all remaining costs of the Medicaid expansion in all states.
Section of the Social Security Act has long authorized research and demonstration projects in Social Security Act programs, including Medicaid. Medicaid research and demonstration projects have been used for decades to waive or vary program requirements, often for many years, without meaningful research purpose or oversight and with little transparency. After the NFIB decision, conservative states began demanding that program requirements be waived under section as a condition of the states expanding Medicaid.
It has allowed genuine bipartisan negotiations between Republican state office-holders and the Obama administration, in which each side has strong incentives to expand health coverage. The resulting negotiation provided a politically palatable pathway for some states to implement Medicaid expansion despite deep-seated political opposition to the ACA itself. States might also design innovative and constructive waivers that improve the terms of the Medicaid expansion.
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For example, a state might explore better mechanisms to reduce churn between the Medicaid and marketplace plans, or to better coordinate care for individuals and families who move from one program to the other. Caution is warranted, however, in reviewing waivers, as some states have submitted waiver requests that serve no research or demonstration purpose and are contrary to the goals of Medicaid itself. It is important for the Obama administration and its successor to reject waiver requests that would erode basic protections for Medicaid recipients. Some waiver requests, seek to enroll Medicaid recipients into mandatory wellness programs or charge copayments for selected forms of emergency department care or other services.
The RAND Health Insurance Experiment and subsequent research indicate that even modest copayments and deductibles deter use of valuable care and can harm individuals facing the dual challenge of low-income and significant injury or illness. Efforts to impose cost-sharing on low-income or chronically ill populations thus deserve particular scrutiny. Some of the most concerning waiver requests would require families with incomes below the federal poverty line to pay monthly premiums, or to satisfy a work requirement. These policies limit Medicaid access by making the program unaffordable for precisely the low-income population that needs the greatest help.
If necessary, Congress should amend the Medicaid statute or section to prohibit such waivers. The Medicaid statute allows states to recover program expenditures from the estates of certain Medicaid beneficiaries. This program is primarily targeted at elderly individuals who receive expensive long-term care and who may have a home or other assets that could be sold to repay the Medicaid program for the cost of these services at their death.
The Medicaid statute, however, gives states the option of recovering Medicaid expenditures from the estates of any Medicaid beneficiary aged 55 or older. This includes beneficiaries in the expansion population. Ten states have indicated that they may try to recover Medicaid expenditures from the estates of expansion population enrollees aged 55 or over. The possibility of an estate claim may tend to discourage individuals who are aware of it from enrolling in Medicaid, regardless of their need for health care. In fact, Medicaid beneficiaries who fall within the expansion population are likely to account for low health care expenditures compared to the elderly long-term residents against whom the estate recovery program is directed.
They are also likely to live for a considerable period, during which the state will have to keep track of these individuals and the expenditures it has incurred before it can finally make a claim against the estate. Medicaid estate recovery raises serious concerns in every beneficiary population. Enforcement of the estate claims against the expansion population is especially unwise, imposing high administrative costs for minimum recoveries and deterring appropriate take-up of the Medicaid program.
Congress should amend the statute to bar estate recoveries against the expansion population. Alternatively, states can amend their statutes or regulations to eschew estate recoveries against members of the expansion population. At the very least, research should be undertaken to determine what the costs and benefits would be of eliminating these requirement.
It is vitally important that Medicaid beneficiaries not only possess Medicaid coverage but are actually able to use that coverage to obtain care. Indeed, the ACA amended the Medicaid statute to clarify that states were obligated under the program not just to pay for care, but also to ensure that care was actually available. In many states, Medicaid reimbursement rates have fallen below the levels required to ensure practical access to needed services. Indeed, six states—Rhode Island, Florida, New Jersey, California, Michigan, and New York—impose Medicaid reimbursements for primary care that are 50 percent or less of what Medicare pays for primary care services.
The ACA provided a temporary increase, covering and , in selected Medicaid reimbursement rates to achieve parity with Medicare rates. Fifteen states have continued to provide such enhanced reimbursement after these provisions expired. Interestingly, some of these states, such as Mississippi, Alabama, and South Carolina, are among those most adamantly opposed to Medicaid expansion and other more politically prominent provisions of the ACA.
CMS has recently issued a final rule for ensuring access to care in state Medicaid fee-for-service programs. These plans must address the extent to which beneficiary needs are met, availability of care and providers, changes in beneficiary service utilization, and comparisons between Medicaid rates and rates paid by Medicare and commercial insurers. States must use these tools to review proposals for reducing or restructuring provider payments before submitting those proposals to CMS. States must also consider input from beneficiaries and providers prior to submitting such proposals.
States will be required to monitor the effect of changes reducing or restructuring provider payments on access for at least three years after the changes are effective. States must additionally review every three years access to a core set of services—primary care including dental , physician specialists, behavioral health, pre- and post-natal obstetrics including labor and delivery , and home health services. States may review additional services at their discretion and must also review services for which the states or CMS receive a high level of complaints.
States are required to implement ongoing mechanisms for receiving provider and beneficiary feedback on access to care. States must develop remediation plans within ninety days of discovering an access deficiency that would correct the problem within twelve months. The final rule is a step forward in ensuring access to care for Medicaid beneficiaries, but more needs to be done. First, the final rule does not provide beneficiaries or providers a mechanism for initiating CMS review of the adequacy of Medicaid access to care in a state.
With access to the federal courts further limited by the Armstrong case discussed below , beneficiaries and providers need some means for initiating an independent review of state limits on access to care. This rule does not provide it. Second, the rule does not provide any concrete metrics for determining whether access is sufficient.
CMS has requested further information on what metrics might be appropriate, but for now leaves the states to develop their own metrics. Once a state submits a proposed amendment it can proceed to implement it, subject to later disapproval. CMS approval should be a prerequisite for implementation.
This reform would provide states with concrete incentives to raise provider rates. It may also alter Medicaid politics by calling specific attention to these concerns at the state level. One template policy would be to raise federal matching rates five percentage points for each service in which the state reimburses providers some minimum rate.
The threshold could, for example, be set at 70 percent of the corresponding Medicare rate. Such a policy would have the further advantage of increasing overall federal support for Medicaid, which would relieve fiscal pressure on states. The Supreme Court has long recognized that federal requirements under programs such as Medicaid enacted through the authority of Congress under the spending clause are binding on the states under the Supremacy Clause of the Constitution. State laws, regulations, and practices that violate the Medicaid statute are thus illegal.
The federal government has limited power, however, to enforce these federal requirements. As a practical matter, it cannot defund Medicaid programs. While it can reduce funding to the states when states spend money in violation of federal law, this strategy is usually counterproductive, hurting the beneficiaries the program is intended to help. Moreover, federal enforcement actions against the states cannot be initiated by beneficiaries who are harmed by illegal state actions.
The Supreme Court has also long recognized that beneficiaries of Social Security Act public assistance programs, including Medicaid, are not able to enforce their rights through federal or state administrative proceedings, and thus are dependent on the federal courts to protect their rights. These rights are enforceable under 42 U.
Under 42 U. Exceptional Child Center , the Supreme Court concluded that providers cannot sue state officials under the Supremacy Clause to enforce this requirement. Medicaid providers and beneficiaries are still permitted to sue under Section to protect rights that they are clearly granted under the Medicaid program.
Supreme Court decisions have sharply circumscribed the scope of rights protected by that provision, however, and the lower courts have generally held that providers have no rights to sue for adequate payments under this section. The Department of Health and Human Services should provide beneficiaries and providers an administrative remedy for challenging inadequate provider access before CMS, as recommended above. Where CMS approves rates without adequate review or in the face of evidence that the rates are not adequate, providers and beneficiaries should be able to sue in federal court to review the CMS decision.
Congress should also clarify that beneficiaries have a right to sue in federal court to enforce other Medicaid requirements. The courts should not be allowed to pare these rights back further. Early legislative draft versions of what eventually became the ACA included language that would have provided marketplace participants the option of purchasing public coverage, modeled on Medicare.
The public option also raised significant implementation concerns.
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