Medicaid Access Rule: A Historic Regulation to Strengthen Home and Community-Based Services
Alison Barkoff, Performing the duties of ACL Administrator and Assistant Secretary of Aging
The Centers for Medicare & Medicaid Services (CMS) has released the final Ensuring Access to Medicaid Services Rule (Access Rule). It includes new requirements related to the direct care workforce, access to home and community-based services (HCBS), health and safety protections, quality measures, and more.
The Access Rule is the most consequential, comprehensive regulation related to Medicaid-funded HCBS in a decade. It will strengthen the HCBS that make it possible for people to live in their own homes, stay connected to friends and family, and participate in the community in ways that are meaningful to them.
What’s Most Important for People With Disabilities and Older Adults To Know
The Access Rule is comprehensive and complex. For a full understanding of the many provisions that benefit people with disabilities and older adults, we recommend reviewing the complete regulation (published in the Federal Register) and CMS’ fact sheet. In this blog, we discuss what is most important to know, including these major provisions:
Payment adequacy: At least 80% of all Medicaid payments for specific HCBS — homemaker services, home health aide services, and personal care services — must be spent on compensation for direct care workers to help address the direct care workforce crisis. States must also report annually on the percentage of payments for those three services (homemaker, home health aide, and personal care), as well as habilitation services, that are spent on compensation for direct care workers. States must also establish an interested parties advisory group to seek input on payment rates for these four services.
- Access: States must report information on HCBS waiting lists. They also must report on whether people have timely and full access to homemaker, home health aide, personal care, and habilitation services once services are approved. This data allows a comparison of access to HCBS across states.
- Person-centered planning: States must demonstrate that, as part of person-centered planning, a reassessment of need is completed at least once a year for people continuously enrolled in HCBS programs. They also must demonstrate that service plans are reviewed and revised annually based on that reassessment.
- Incident management: States must operate and maintain an electronic incident management system using a common minimum definition for what is considered a “critical incident.” They must also investigate, address, and report on the outcomes of the incidents within specified timeframes.
- Grievances: States must establish and manage a grievance process for people receiving HCBS in fee-for-service systems. (This already exists in Medicaid managed care systems.) This process will give people a way to notify their state Medicaid agency if they have a complaint about how a provider or state is complying with person-centered planning and HCBS Settings Rule requirements.
- Quality measures: States must report on a set of nationally standardized quality measures specifically for HCBS established by CMS through a process that includes opportunities for public comment.
Because the Access Rule requires states to make significant changes to their Medicaid programs, CMS is allowing states several years to implement the provisions. During that time, CMS will provide states with additional guidance and assistance. CMS will also hold meetings with beneficiary advocacy groups to explain the changes. ACL will continue working with CMS to ensure that beneficiary advocacy groups and people receiving services are involved in discussions related to implementation.
Overview of Key Provisions
HCBS can be provided through a number of Medicaid authorities, including 1915(c) waivers, 1915(i) State Plan HCBS, 1915(j) Self-Directed Personal Assistance Services, 1915(k) Community First Choice, and 1115 demonstration waivers. Except where otherwise noted in the rule, the Access Rule’s requirements apply to all of those HCBS authorities and to both fee-for-service and managed care systems.
HCBS Payment Adequacy
One of the biggest challenges people face when trying to get HCBS is the shortage of direct care workers. All states are facing a direct care workforce crisis due to an increase in demand for services and low wages and poor benefits for these jobs. A stable and reliable workforce is necessary to support people to live and fully participate in their communities. Without a strong direct care workforce, many people will be unable to access the services they need. The Access Rule strengthens the direct care work force by establishing:
- A minimum percentage requirement: The rule requires that at least 80% of all Medicaid payments for specific HCBS — homemaker services, home health aide services, and personal care services — be spent on compensation for direct care workers as opposed to administrative overhead and profit. In response to comments, the final rule excludes the costs for travel, training, and personal protective equipment from the calculation, so as not to disincentivize serving people in rural areas or to discourage training. Also, in a change from the proposed rule, clinical supervisors are included in the definition of direct care workers, in recognition of the important role that clinical supervision plays in the delivery of high quality HCBS. The final rule also allows states to adopt a separate percentage for small providers and/or a hardship exemption, based on a transparent process and objective criteria.
While habilitation services are not included in the 80% minimum payment requirement, the final rule responded to public comment by including habilitation services in the reporting requirements. The reporting requirements will provide advocates with critical information to support efforts to strengthen the direct workforce.
In four years, states must begin reporting on the percentages of Medicaid payment for homemaker services, home health aide services, personal care services, and habilitation services spent on direct care worker compensation. The 80% minimum payment provision for homemaker, home health aide, and personal care services becomes effective in six years.
- Transparency on payment rates: There are several provisions in the rule intended to promote transparency and accountability regarding payments to direct care workers. For example, the rule requires states to make all Medicaid fee-for-service (FFS) payment rates publicly available through a published rate schedule starting in July 2026.
- Interested parties advisory group: The states must establish an interested parties advisory group to advise on provider rates for service categories under the Medicaid state plan, 1915(c) waiver, and demonstration programs. The group must include direct care workers, as well as beneficiaries and their authorized representatives. The group will advise on payment rates, HCBS payment adequacy data, and access-to-care metrics to ensure that payment rates are sufficient to ensure an adequate number of qualified direct care workers are available to meet demands for personal care, home health aide, homemaker services, and habilitation services, and to provide self-directed personal assistance services. Stakeholder involvement in this advisory group will be crucial as states work to implement the rule’s payment adequacy provisions. The group must be established and meet within two years. These provisions complement other ways states must seek stakeholder input, including through states’ Medicaid Advisory Committees and new Beneficiary Advisory Councils.
Together, these provisions seek to improve the adequacy of payments for HCBS, improve wages and benefits for direct care workers, and address some of the most critical challenges to hiring and retaining these workers. These provisions in the Access Rule complement ACL’s efforts to strengthen the direct care workforce through the Direct Care Workforce Strategies Center (DCW Strategies Center). The DCW Strategies Center will continue to serve as a resource for information on strategies to improve the recruitment and retention of direct care workers and to provide technical assistance to states as they implement direct care workforce strategies.
Access to HCBS
States that provide HCBS under 1915(c) waivers are allowed to determine how many people they will serve, which populations they will serve, and what services they will provide. The result is that in many states, there are waiting lists for one or more HCBS 1915(c) waiver programs. (States may also have waiting lists when they include HCBS in their 1115 demonstration waivers.)
In addition, in all HCBS programs, even when people are authorized for services, they often face delays in receiving them or cannot access all of the services they are approved to receive.
To provide data that can be used to address these issues and improve access, the rule requires states to report on:
- HCBS waiting lists: For states that have waiting lists in their 1915(c) waiver programs (or 1115 demonstration waivers that include HCBS), the rule requires each state to describe, every year, how they maintain the waiting list, including whether people on the waiting list are screened for eligibility and whether (and how often) they are periodically rescreened for eligibility. States will be required to report how many people are on the waiting list and how long people stay on the waiting list, on average.
- Access to approved services: The rule requires states to report every year on the average length of time people must wait for services to start after they are initially approved to receive homemaker, home health aide, personal care, and habilitation services. States must also report every year on the percentage of authorized hours that are provided to individuals for those same services. These requirements will help states and CMS identify — and address — gaps between the services for which people are approved and what they receive.
States have three years to implement these provisions.
Person-Centered Planning
The services people receive through Medicaid HCBS programs must be planned using a person-centered process. That means that the plan reflects the preferences of the person receiving services, and it must be focused on helping the person achieve their individual goals, as set by them. The person-centered plan is the foundation for meeting each person’s needs and supporting them so they can live the life they want to live. It is through the person-centered planning process that people make choices about their lives and the services they receive.
It is important that these plans are reviewed — and updated — regularly to ensure they continue to meet changing needs. The rule strengthens accountability for person-centered planning by requiring states to demonstrate that a reassessment of need is completed at least once a year for people continuously enrolled in HCBS programs and that the service plan is reviewed annually — and revised if needed — based on that reassessment.
States have three years to achieve 90% compliance with the rule’s person-centered planning requirements.
Critical Incident Management To Improve Health, Safety, and Service Quality
Medicaid systems must ensure the health, safety, and well-being of people with disabilities and older adults receiving HCBS. A good incident management system is critical to doing that. Such a system should not only respond when an individual is harmed or at risk of harm but should also give states data to prevent incidents. This requires identifying trends and patterns — and putting policies in place to prevent incidents and harm.
Under the Access Rule, states are required — for the first time — to operate and maintain an electronic incident management system to support states to identify, report, triage, investigate, resolve, track, and trend critical incidents.
The rule establishes a minimum definition of critical incident to increase consistency across states. The minimum definition of a critical incident is comprehensive and includes verbal, physical, sexual, psychological, or emotional abuse; neglect; exploitation including financial exploitation; misuse or unauthorized use of restrictive interventions or seclusion; a medication error resulting a consultation with a poison control center (including telephone calls), an emergency department or urgent care visit, hospitalization, or death; or an unexplained or unanticipated death, including but not limited to a death caused by abuse or neglect.
The rule requires states to use information from sources other than provider reports to identify critical incidents, including Medicaid Fraud Control Units, adult and child protective services systems, and law enforcement, to the extent allowed under state law. States are required to share information about the status and resolution of investigations with other agencies, to the extent allowed under state law.
Finally, the rule sets reporting requirements and minimum performance requirements for investigation, resolution, and corrective actions related to critical incidents. It also requires states to report the results of an incident management system assessment every two years to show that they meet the new requirements.
States have five years to put in place electronic incident management systems and three years to implement all of the other incident management provisions.
The critical incident management provisions in the Access Rule complement requirements proposed by ACL in regulations governing adult protective service (APS) systems to encourage cross-system collaboration and information sharing. ACL will work closely with CMS to provide technical assistance to both state Medicaid and APS agencies on data sharing, including development of memoranda of understanding and lifting up best practices.
Grievance Process
The Access Rule requires states to institute and manage a grievance (complaint) process for people who receive services through Medicaid fee-for-service (FFS). The requirement complements the requirements already in place in managed care programs. This will provide people receiving services the ability to notify their state Medicaid agency if they are unhappy with a provider or have a complaint about how a provider or the state is complying with Medicaid person-centered planning requirements or the HCBS Settings Rule. It also requires the states to establish a process for the state to both investigate and respond to the complaint.
States must maintain records of grievances, review the information as part of their ongoing monitoring procedures, and make the records available upon request from CMS. The provision is effective in two years.
ACL’s disability and aging networks, including protection and advocacy systems and the legal advocacy network funded under the Older Americans Act, will be an important resource to support older adults and people with disabilities in understanding and utilizing the grievance process.
Quality Measures
For the first time, CMS is requiring states to report on a set of nationally standardized quality measures specifically for HCBS, as is required for other Medicaid services. CMS will utilize a stakeholder process and public comment to develop and update the measure set.
States are required to establish performance targets for each of the mandatory measures and report on the strategies they are using to reach those goals. Reporting will become effective in four years, and states are required to report every other year on quality measures for their state HCBS program.
With a focus on reducing health disparities and advancing health equity, the rule also requires states to report data stratified by race, ethnicity, sex, age, rural/urban status, disability, language, and other factors to provide insights and information to improve service access and quality. The requirements to report stratified data will be phased in over eight years.
ACL Support for Implementation of the Access Rule
Now that Access Rule is finalized, we will all need to turn our efforts to implementation to ensure that the improvements in the rules are realized in every state. ACL will be working to educate the disability and aging communities and our networks about ways they can get involved as the rule is implemented in their own states. We also will be working with our partners at CMS to support implementation. We’ll continue sharing information through ACL Updates, including in our regular “Policy Round-Ups” — so sign up at ACL.gov if you haven’t already.