§ 438.68 Network adequacy standards. ( a ) *General rule.* A State that contracts with an MCO, PIHP or PAHP to deliver Medicaid services must develop and enforce network adequacy standards consistent with this section.
( b ) *Provider-specific network adequacy standards.* -(1) *Provider types.* At a minimum, a State must develop a quantitative network adequacy standard, other than appointment wait times, for the following provider types, if covered under the contract: (i) Primary care, adult and pediatric. (ii) OB/GYN. (iii) Mental health and substance use disorder, adult and pediatric. (iv) Specialist (as designated by the State), adult, and pediatric. (v) Hospital. (vi) Pharmacy. (vii) Pediatric dental. ( 2 ) *LTSS.* States with MCO, PIHP, or PAHP contracts which cover LTSS must develop a quantitative network adequacy standard for LTSS provider types.
( 3 ) *Scope of network adequacy standards.* Network standards established in accordance with paragraphs (b)(1) and (2) of this section must include all geographic areas covered by the managed care program or, if applicable, the contract between the State and the MCO, PIHP or PAHP. States are permitted to have varying standards for the same provider type based on geographic areas.
( c ) *Development of network adequacy standards.* ( 1 ) States developing network adequacy standards consistent with paragraph (b)(1) of this section must consider, at a minimum, the following elements: ( i ) The anticipated Medicaid enrollment.
( ii ) The expected utilization of services.
( iii ) The characteristics and health care needs of specific Medicaid populations covered in the MCO, PIHP, and PAHP contract.
( iv ) The numbers and types (in terms of training, experience, and specialization) of network providers required to furnish the contracted Medicaid services.
( v ) The numbers of network providers who are not accepting new Medicaid patients.
( vi ) The geographic location of network providers and Medicaid enrollees, considering distance, travel time, the means of transportation ordinarily used by Medicaid enrollees.
( vii ) The ability of network providers to communicate with limited English proficient enrollees in their preferred language.
( viii ) The ability of network providers to ensure physical access, reasonable accommodations, culturally competent communications, and accessible equipment for Medicaid enrollees with physical or mental disabilities.
( ix ) The availability of triage lines or screening systems, as well as the use of telemedicine, e-visits, and/or other evolving and innovative technological solutions.
( 2 ) States developing standards consistent with paragraph (b)(2) of this section must consider the following: ( i ) All elements in paragraphs (c)(1)(i) through (ix) of this section.
( ii ) Elements that would support an enrollee's choice of provider.
( iii ) Strategies that would ensure the health and welfare of the enrollee and support community integration of the enrollee.
( iv ) Other considerations that are in the best interest of the enrollees that need LTSS.
( d ) *Exceptions process.* ( 1 ) To the extent the State permits an exception to any of the network standards developed under this section, the standard by which the exception will be evaluated and approved must: ( i ) Be specified in the MCO, PIHP, or PAHP contract.
( ii ) Be based, at a minimum, on the number of providers in that specialty practicing in the MCO, PIHP, or PAHP service area.
( iii ) Include consideration of the payment rates offered by the MCO, PIHP, or PAHP to the provider type or for the service type for which an exception is being requested.
( 2 ) States that grant an exception in accordance with paragraph (d)(1) of this section to an MCO, PIHP, or PAHP must monitor enrollee access to that provider type or service on an ongoing basis and include the findings to CMS in the managed care program assessment report required under § 438.66(e).
( e ) *Appointment wait time standards.* States must establish and enforce appointment wait time standards. ( 1 ) *Routine appointments.* Standards must be established for routine appointments for the following services and within the specified limits: ( i ) If covered in the MCO's, PIHP's, or PAHP's contract, outpatient mental health and substance use disorder, adult and pediatric, within State-established timeframes but no longer than 10 business days from the date of request.
( ii ) If covered in the MCO's, PIHP's, or PAHP's contract, primary care, adult and pediatric, within State-established timeframes but no longer than 15 business days from the date of request.
( iii ) If covered in the MCO's, PIHP's, or PAHP's contract, obstetrics and gynecological within State-established timeframes but no longer than 15 business days from the date of request.
( iv ) State-selected, other than those listed in paragraphs (e)(1)(i) through (iii) of this section and covered in the MCO's, PIHP's, or PAHP's contract, chosen in an evidence-based manner within State-established timeframes.
( 2 ) *Minimum compliance.* MCOs, PIHPs, and PAHPs will be deemed compliant with the standards established in paragraph (e)(1) of this section when secret shopper results, consistent with paragraph (f)(2) of this section, reflect a rate of appointment availability that meets the standards established at paragraph (e)(1)(i) through (iv) of this section of at least 90 percent.
( 3 ) *Selection of additional types of services.* After consulting with States and other interested parties and providing public notice and opportunity to comment, CMS may select additional types of services to be added to paragraph (e)(1) of this section.
( f ) *Secret shopper surveys.* States must contract with an entity, independent of the State Medicaid agency and any of its contracted MCOs, PIHPs and PAHPs subject to the survey, to conduct annual secret shopper surveys of each MCO's, PIHP's, and PAHP's compliance with the provider directory requirements in § 438.10(h) as specified in paragraph (f)(1) of this section and appointment wait time requirements as specified in paragraph (f)(2) of this section. ( 1 ) *Provider directories.* ( i ) A secret shopper survey must be conducted to determine the accuracy of the information specified in paragraph (f)(1)(ii) of this section in each MCO's, PIHP's, and PAHP's most current electronic provider directories, as required at § 438.10(h), for the following provider types: ( A ) Primary care providers, if they are included in the MCO's, PIHP's, or PAHP's provider directory;
( B ) Obstetric and gynecological providers, if they are included in the MCO's, PIHP's, or PAHP's provider directory;
( C ) Outpatient mental health and substance use disorder providers, if they are included in the MCO's, PIHP's, or PAHP's provider directory; and
( D ) The provider type that provides the service type chosen by the State in paragraph (e)(1)(iv) of this section.
( ii ) A secret shopper survey must assess the accuracy of the information in each MCO's, PIHP's, and PAHP's most current electronic provider directories for at least: ( A ) The active network status with the MCO, PIHP, or PAHP;
( B ) The street address(es) as required at § 438.10(h)(1)(ii);
( C ) The telephone number(s) as required at § 438.10(h)(1)(iii); and
( D ) Whether the provider is accepting new enrollees as required at § 438.10(h)(1)(vi).
( iii ) States must receive information, sufficient to facilitate correction by the MCO, PIHP, or PAHP, on errors in directory data identified in secret shopper surveys from the entity conducting the secret shopper survey no later than 3 business days from the day the error is identified by the entity conducting the secret shopper survey.
( iv ) States must send information required in paragraph (f)(1)(iii) of this section to the applicable MCO, PIHP, or PAHP no later than 3 business days from receipt.
( 2 ) *Timely appointment access.* A secret shopper survey must be used to determine each MCO's, PIHP's, and PAHP's rate of network compliance with the appointment wait time standards in paragraph (e)(1) of this section. ( i ) After consulting with States and other interested parties and providing public notice and opportunity to comment, CMS may select additional types of appointments to be added to a secret shopper survey.
( ii ) Appointments offered via telehealth can only be counted toward compliance with the appointment wait time standards in paragraph (e)(1) of this section if the provider being surveyed also offers in-person appointments to the MCO's, PIHP's, or PAHP's enrollees and must be identified separately from in-person appointments in survey results.
( 3 ) *Independence.* An entity will be considered independent of the State as specified in paragraph (f)(3)(i) of this section and independent of the MCOs, PIHPs, or PAHPs subject to the surveys as specified in paragraph (f)(3)(ii) of this section. ( i ) An entity will be considered independent of the State if it is not part of the State Medicaid agency.
( ii ) An entity will be considered independent of an MCO, PIHP, or PAHP subject to the secret shopper surveys if the entity is not an MCO, PIHP, or PAHP, is not owned or controlled by any of the MCOs, PIHPs, or PAHPs subject to the surveys, and does not own or control any of the MCOs, PIHPs, or PAHPs subject to the surveys.
( 4 ) *Methodological standards.* Secret shopper surveys required in this paragraph must: ( i ) Use a random sample;
( ii ) Include all areas of the State covered by the MCO's, PIHP's, or PAHP's contract; and
( iii ) For secret shopper surveys required in paragraph (f)(2) of this section for appointment wait time standards, be completed for a statistically valid sample of providers.
( 5 ) *Results reporting.* Results of the secret shopper surveys conducted pursuant to paragraphs (f)(1) and (2) of this section must be analyzed, summarized, and: ( i ) Reported to CMS using the content, form, and submission times as specified at § 438.207(d); and
( ii ) Posted on the State's website required at § 438.10(c)(3) within 30 calendar days of submission to CMS.
( g ) *Publication of network adequacy standards.* States must publish the standards developed in accordance with paragraphs (b)(1) and (2), and (e) of this section on the website required by § 438.10(c)(3). Upon request, network adequacy standards must also be made available at no cost to enrollees with disabilities in alternate formats or through the provision of auxiliary aids and services.
( h ) *Applicability.* States will not be held out of compliance with the requirements of paragraph (b)(1) and of this section prior to the first rating period for contracts with MCOs, PIHPs, or PAHPs beginning on or after 3 years after July 9, 2024, so long as they comply with the corresponding standard(s) codified in 42 CFR 438.68 (b) (effective as of October 1, 2023). Paragraph (d)(1)(iii) of this section applies to the first rating period for contracts with MCOs, PIHPs, or PAHPs beginning on or after 2 years after July 9, 2024. States will not be held out of compliance with the requirements of paragraph (d)(2) and of this section prior to the first rating period for contracts with MCOs, PIHPs, or PAHPs beginning on or after 2 years after July 9, 2024, so long as they comply with the corresponding standard(s) codified in 42 CFR 438.68 (d)(2) (effective as of October 1, 2023). Paragraph (e) of this section applies to the first rating period for contracts with MCOs, PIHPs, or PAHPs beginning on or after 3 years after July 9, 2024. Paragraph (f) of this section applies to the first rating period for contracts with MCOs, PIHPs, or PAHPs beginning on or after 4 years after July 9, 2024. States will not be held out of compliance with the requirements of paragraph (g) of this section prior to the first rating period that begins on or after 3 years after July 9, 2024, so long as they comply with the corresponding standard(s) codified in paragraph 42 CFR 438.68 (g) (effective as of October 1, 2023).
[81 FR 27853, May 6, 2016, as amended at 85 FR 72840, Nov. 13, 2020; 89 FR 41275, May 10, 2024]