Thirty-Five Years of Inaction: The Unfulfilled Promise of the Medicaid Equal Access Provision

By Delaram Takyar. Full Text.

In 1989, Congress amended the Social Security Act to ensure that Medicaid recipients would have the same access to medical providers as people covered by private insurance and Medicare. This was meant to remedy the wide disparities in access to care faced by Medicaid beneficiaries. Congress placed the responsibility for bringing that promise to reality in the hands of the Department of Health and Human Services (HHS). Nearly 35 years later, HHS and the Centers for Medicare and Medicaid Services (CMS), which HHS oversees, have failed to take meaningful steps to ensure that Medicaid recipients have adequate access to medical care. When CMS finally promulgated equal access regulations in 2015 and 2016, it focused exclusively on data collection and transparency. In May 2023, CMS proposed updated equal access regulations. Yet again, the proposed regulations promise improved data collection and transparency, not action.

This Essay interrogates the issues with this cycle of regulations, while also noting the continued disparities face by Medicaid recipients, who have far fewer providers accepting their insurance than those who accept privately insured patients. This Essay argues that CMS must take appropriate action under the Social Security Act’s statutory mandate to improve access to care for Medicaid recipients or face litigation under the Administrative Procedure Act (APA).