July 5, 2011 Centers for Medicare and Medicaid Services Department of Health and Human Services Attention: CMS-2328-P

Baltimore, MD 21244-1850 RE: CMS-2328-P AOTA comments on proposed rule on the Medicaid Program: Methods for Assuring Access to Covered Medicaid Services, Federal Register, May 6, 2011. Dear Sir or Madam: The American Occupational Therapy Association (AOTA), the national professional association representing the interests of more than 140,000 occupational therapy practitioners appreciates the opportunity to comment on this proposed rule which has the potential to have a major impact on access to appropriate services and appropriate providers of these services -- for children and adults who are Medicaid beneficiaries. Because occupational therapists and occupational therapy assistants provide services to people across the lifespan with a focus on wellness, prevention, rehabilitation, and maintenance of existing function, AOTA is particularly interested in any changes that will have a direct impact on the ability of children, adults, seniors and individuals with disabilities and chronic conditions to receive the supports and services they need to function as independently as possible. Occupational therapy places a major focus on providing individualized supports and services in the least restrictive environment. Occupational therapy practitioners have a holistic perspective, in which the focus is on adapting the environment to fit the person, and the person always is an integral part of the therapy team. Occupational therapy services typically include an individualized evaluation, during which the individual/family and occupational therapist work together to determine the persons goals. OTs and OTAs provide customized interventions to improve the persons ability to perform daily activities and reach specific goals. All efforts include an outcomes evaluation to ensure that the appropriate goals have been established and are being met and if needed -- to make changes to the intervention plan. Occupational therapy services may include: comprehensive evaluations of the individuals home and other environments (e.g., workplace, school); recommendations for adaptive equipment and training in its use; as well as guidance and education for family members and caregivers. AOTA provides the following specific comments both to (1) offer its support for the innovative key concepts embedded in this proposed rule; and (2) to offer specific recommendations which AOTA believes will assist the Department to strengthen the eventual final rule.

AOTA supports the Centers for Medicare and Medicaid Services (CMS) efforts to make states more accountable for ensuring sufficient access to quality services for beneficiaries of all ages. However, AOTA asserts that the Department must be very clear as it defines the terms sufficient access and quality and that these definitions fit all categories of beneficiaries. For example, the population of individuals with whom OTs work, too often face the obstacle of a very narrow definition of medical necessity which either limits or even prohibits access to the services and supports they need to live in the community. Effective monitoring and enforcement of state actions is a critical key to the success of any effort to ensure that people get access to the services they need. While AOTA and other providers realize that states are facing budget deficits, we are extremely concerned with the emphasis-- actually almost the acceptance as fact-- that additional rate reductions are the key part of this effort. Currently more and more providers are being forced out of the Medicaid program because of ongoing rate cuts in both the Fee for Service (FSS) and managed care structures. AOTA strongly believes and has data to back up the fact -- that OT services help keep people of all ages become and remain more independent, productive and less dependent on the health care system. We are extremely concerned with the impact that the focus on rate cuts will have on beneficiaries access to critically needed OT services and supports. AOTA has always supported provisions that allow more beneficiary and stakeholder input into state actions actions that will have a direct impact on both beneficiaries and those who provide them with services and supports. However, it appears in this proposed rule that beneficiary and stakeholder input mostly will be related to any State Plan Amendments (SPA) which reduce or restructure payment rates. This emphasis on more rate reductions is of major concern. Also of major concern, however, is the need to ensure that beneficiaries and providers who though they may have the right to participate in the process may not be fully educated as to all the potential outcomes of a SPA and what changes in provider rates will really mean to them as beneficiaries. In addition, their participation must not be last minute and must not be viewed by the state as pro-forma. There must be proper notice and the input of stakeholders must be considered. AOTA questions why the provisions of this proposed rule apply only to state FFS Medicaid and do not apply to managed care arrangements. The Preamble states that managed care entities are subject to separate access review procedures..and that the Department is currently undertaking a review of states managed care access standards. At a time when over 70 percent of the Medicaid population is enrolled in some form of managed care, and when managed care restrictions have been extremely problematic for children and adults with disabilities and chronic illness, it certainly appears to AOTA that any focus on protecting access to needed services should include managed care. In addition, in relation to rate setting, too often in managed care it is the very low capitation rates, along with very limited definitions of medical necessity that limit individuals with disabilities and chronic illness from access to the services they need to live as independently as they can in the community for their whole lives. One final comment related to rate setting refers to the statement that some states develop rates on a review of the amount paid by commercial payers in the private market. When it comes to the

needs of individuals with disabilities and chronic conditions, too often the fact is that access to needed rehabilitation or habilitation services and supports is extremely limited in the private market. This was the major motivation behind the enactment of the Family Opportunity Act (FOA), which as a state option, allows families with incomes above the set Medicaid level and who have a child with a disability to buy into the Medicaid program so that their child can have access to the full range of services available through the EPSDT program. A foundational component of the FOA is to allow families with children with disabilities to keep these children at home where they belong not forcing them into institutional care. AOTA also asserts that any changes to the Medicaid program and access must not have a negative impact on EPSDT. The proposed rule for the Medicaid Program: Home and Community-Based Services (HCBS) Waivers placed a great deal of emphasis on person-centered planning. CMS took a very proactive and positive position stating that through this proposed rule, we include expectations that each individual within the waiver, regardless of target group (people with intellectual and/or developmental disabilities, individuals with physical, sensory, or mental health disabilities; and individuals who are facing health problems and disabilities due to the aging process.) has equal access to the services necessary to meet their unique needs. As the Department finalizes the proposed rule, Medicaid Program: Methods for Assuring Access to Covered Medicaid Services, AOTA strongly urges the Department to consider the requirements in the HCBS proposed rule. AOTA strongly supports the Medicaid program. It is a program that has been a life line for millions of individuals of all ages. AOTA also recognizes that the nation is facing a fiscal crisis as are the states but any changes to the program must ensure that access is appropriate for each individual beneficiary and not defined based on the needs of those with the lowest level of health care needs. Focusing mainly on lowering already inadequate reimbursement rates can only have a negative impact on millions of beneficiaries with high health care needs AOTA recommends a strong focus on effective monitoring and enforcement of this rule. The success of any new initiative relies heavily upon the effectiveness of the monitoring and enforcement of these rules to ensure that people have access to the supports and services they need in the community. The final regulations must provide for the Department to exercise timely and meaningful oversight over SPA compliance. While almost every state is facing a budget crisis and while some states may be eager to move forward in innovative ways, other states may not be of the same mind set. If you have any questions, please feel free to contact AOTA Federal Affairs Department directly at fad@aota.org. Thank you for your consideration of our comments. Sincerely: Tim Nanof Federal Affairs Manager American Occupational Therapy Association tnanof@aota.org