Several groups have submitted comments on CMS’ proposed meaningful use modifications for 2015 through 2017, Clinical Innovation & Technology reports (Walsh, Clinical Innovation & Technology, 6/15).
Under the 2009 economic stimulus package, providers who demonstrate meaningful use of certified electronic health records can qualify for Medicaid and Medicare incentive payments.
Details of Proposal
In April, CMS released a proposed rule that would shorten Medicare and Medicaid meaningful use attestation for eligible professionals and hospitals to a 90-day period in 2015.
Overall, the proposed rule would:
- Realign the reporting period starting in 2015 to allow hospitals to participate on the calendar year instead of the current fiscal year period;
- Reduce the number of meaningful use objectives to improve advanced use of EHRs; and
- Remove redundant measures and those that have become widely adopted.
In addition, the proposed rule would change Stage 2 meaningful use requirements related to patient engagement. Specifically, CMS proposed reducing the requirement for patients to use technology to electronically download, view and transmit their medical records from 5% of eligible providers’ patients to just one patient (iHealthbeat, 4/13).
Comments on the proposed modifications were due June 15 (iHealthbeat, 5/28).
American Medical Group Association Comments
The American Medical Group Association in its comments praised CMS for easing the program’s reporting requirements, as well as for proposing a shorter 90-day reporting period.
AMGA CEO Donald Fisher said, “This proposed rule reflects that CMS has been sensitive to the struggles that the health care industry has had with meaningful use by simplifying some of the reporting requirements through 2017.”
The group also urged CMS to help strengthen the health IT infrastructure to support future data sharing requirements (AMGA release, 6/15).
College of Healthcare Information Management Executives Comments
Russell Branzell, president of the College of Healthcare Information Management Executives, in his comments called for a middle ground on patient engagement. He wrote that rather than requiring every specialist to demonstrate that patients can “view, download and transmit” their health information, those data should be aggregated into a single location for patients.
He added, “I definitely want patient data made accessible to patients or those taking care of them. But I don’t want to get every note out of some subspecialty office” (Pittman et al., “Morning Health,” Politico, 6/16).
Consumer Partnership for eHealth Comments
Meanwhile, a group of 50 advocacy groups organized by the Consumer Partnership for eHealth and the Consumer-Purchase Alliance in its comments expressed disappointment, saying CMS’ proposal to reduce patient engagement requirements would undermine patient engagement efforts (Clinical Innovation & Technology, 6/15). Specifically, CPeH said, “CMS’ proposed amendments constitute a dramatic retreat from essential efforts to make patients and family caregivers true and equal partners in improving health through shared information, understanding and decision making” (“Morning eHealth,” Politico, 6/16).
Debra Ness — president of the National Partnership for Women & Families, which was part of the coalition — said the groups “urge CMS to keep the existing patient engagement thresholds.”
Meanwhile, Bill Kramer, co-chair of the Consumer-Purchase Alliance, noted that maintaining efforts to give patients and caregivers “electronic access to and use of their health information” is key to achieving interoperability in the U.S. health care system (Clinical Innovation & Technology, 6/15).
Healthcare Information and Management Systems Society Comments
The Healthcare Information and Management Systems Society in a letter to CMS supported the agency’s proposal to ease reporting requirements but urged CMS to be cautious moving forward with other proposals, Health Data Management reports.
Among other things, HIMSS recommended that CMS:
- Phase-in the new thresholds for the Patient Electronic Access Objective;
- Reconsider the “unrealistic goal” of the 2016 hospital electronic prescribing requirement; and
- Take into account the timing of the release of the final rule in terms of the “short turnaround in meeting” its requirements (Slabodkin, Health Data Management, 6/16).
The CMS has released a sweeping proposed rule intended to modernize the regulation of Medicaid managed-care plans. The Medicaid managed-care population is growing rapidly, but the last regulation governing such plans was issued in 2002.
In one provision that generated frustration among health insurers in the hours after the draft was posted, the CMS called for health plans to dedicate a minimum portion of the rates they receive toward medical services, a threshold known as a medical loss ratio.
As of 2015, plans doing business with Medicaid and the Children’s Health Insurance Program are the only health plans that aren’t subject to an MLR. The Obama administration is proposing an 85% threshold for Medicaid managed-care plans, the same as the government demands of large group plans in the private market.
America’s Health Insurance Plans, the largest trade group representing health insurers, quickly responded that applying an MLR to Medicaid managed care fails to reflect much of what the plans do to hold down costs.
“An arbitrary cap on health plans’ administrative costs could undermine many of the critical services—beyond medical care—that make a difference in improving health outcomes for beneficiaries, such as transportation to and from appointments, social services, and more,” interim AHIP CEO Dan Durham said in a statement.
The MLR that the CMS has proposed for Medicaid plans is a suggestion rather than an enforceable mandate. Still, many plans will be affected if states follow through on the agency’s suggestion. In a CMS review of 167 managed care plans in 35 states, one in 10 plans had an MLR below 79% and one in four had one below 83%.
Medicaid managed-care enrollment has soared by 48% to 46 million beneficiaries over the past four years, according to consulting firm Avalere Health. By the end of this year, Avalere estimates that 73% of Medicaid beneficiaries will receive services through managed-care plans.
“A lot has changed in terms of best practices and the delivery of important health services in the managed care field over the last decade,” acting CMS Administrator Andy Slavitt said in a statement. “This proposal will better align regulations and best practices to other health insurance programs, including the private market and Medicare Advantage plans, to strengthen federal and state efforts at providing quality, coordinated care to millions of Americans with Medicaid or CHIP insurance coverage.”
The rule would impose new standards to ensure beneficiaries have adequate provider networks. For example, plans typically require that enrollees can reach a primary care physician within a certain time or distance. The CMS wants states to extend such time-and-distance standards to OB/GYNs, behavioral health specialists and dentists.
And given the large number of children enrolled in Medicaid, the CMS also is proposing that states’ rules for provider networks specifically reflect pediatric primary, specialty, and dental providers.
“Network adequacy is often assessed without regard to practice age limitations which can mask critical shortages and increase the need for out-of-network authorizations and coordination,” the agency says in the regulation.
States would be allowed some leeway, however, to vary those standards in different geographic areas to account for the number of providers practicing in a particular area.
The rule also would require greater transparency in how states determine whether the rates they pay plans are actuarially sound, meaning that the payments are sufficient to cover the services required under the contract.
States would have to provide the CMS enough detail for the agency to understand the specific data, assumptions and methodologies behind that rate. This will likely trouble the 26 states and the District of Columbia that currently certify ranges instead of specific rates for their managed care programs.
As expected, the rule also includes a section on managed Medicaid long-term care. Traditionally, state Medicaid programs have paid long-term-care providers on a fee-for-service basis even as they moved more nondisabled beneficiaries into managed care. But as of 2014, 26 states were using managed long-term care, up from eight in 2004, according to the CMS. The number of beneficiaries in managed long-term care has grown from 105,000 in 2004 to 389,000 in 2012.
A key passage, requested by advocates, would allow participants enrolled in Medicaid Long Term Services and Supports, or MLTSS, to switch plans or disenroll and switch to fee-for-service if their provider is not in-network for the managed care plan.
The Association of Community-Affiliated Plans, which represents not-for-profit safety net health plans, applauded the scope and spirit of the proposed regulation.
“Safety net health plans support the commitment to transparency, accountability and improvement that animates this proposal,” ACAP CEO Margaret Murray said. “So much so that we believe these provisions should be extended to the entirety of the Medicaid system, including fee-for-service and primary care case management arrangements.”
State officials warned on Monday that if Florida legislators fail to reach a deal on a new state budget, everything from child abuse investigations to money for teachers could be halted in coming weeks.
Gov. Rick Scott last week ordered agencies to give him a list of the state’s critical needs if a new budget is not in place by the end of June. Some agencies responded with a list of what needs to be funded, while others said what would happen without a spending plan.
The list of services that could be impacted by a shutdown was daunting with top agency officials saying that child support payments could be halted, Florida would no longer participate in the Medicaid program, the state would no longer respond to any hurricanes, and that the Florida National Guard would not be available in an emergency. Even Florida lottery ticket sales could be suspended.
State legislators ended their session abruptly last month without passing a new state budget because the House and Senate have been at odds over the budget and health care spending. House Republicans oppose a Senate proposal to extend health care coverage to 800,000 Floridians by tapping into federal money linked to President Barack Obama’s health care overhaul.
Scott is also opposed to Medicaid expansion and — since the session ended — has taken a more antagonistic approach to legislators, especially those in the Senate.
Late last week legislative leaders officially announced they would return to the state Capitol in June to pass a budget and also reconsider other items including health care coverage. That decision went against Scott’s own recommendation to focus on the budget only.
“Governor Scott is glad the Legislature issued a call for a special session and remains cautiously optimistic that we will have a budget that will help our economy grow and create more jobs,” said Jackie Schutz, a spokeswoman for Scott.
Earlier this year legislators entered the session with a projected budget surplus of more than $1 billion. But the two chambers have been divided over the budget because a program that now provides more than $1 billion in federal aid to hospitals is to set to expire this summer although the state has asked for approval of an alternative program. Hospitals are predicting severe cutbacks if the money is lost.
The feds want Florida to expand Medicaid insurance as part of the agreement to extend the hospital funds, which it says is a more efficient use of federal funds than paying hospitals retroactively for caring for the uninsured.
But that push has drawn the ire of Scott. Scott has sued the federal government, alleging it is coercing him to expand Medicaid by withholding hospital funds. The budget stalemate has forced Scott to concede that he may not be able to win passage of any of his priorities this year, including a boost in school funding and tax cuts.
While some agencies listed dire warnings about a government shutdown, some they could go on for a little while without a new budget. The state’s public universities told the Scott administration they have enough in reserves to pay employees anywhere from one to six months.
Florida Gov. Rick Scott paid a high-stakes visit to Washington D.C. on Wednesday, in hopes of persuading the Obama administration to continue a program that sends more than $1 billion in federal funds to Florida each year to help reimburse hospitals for the costs of caring for the state’s poor. Uncertainty about the future of the program, slated to end June 30, has created a hole in the state budget and paralyzed Florida’s legislature.
“We had a good conversation … but we don’t have a resolution,” the Republican governor told reporters after an hour-long, private meeting with U.S. Secretary of Health and Human Services Sylvia Burwell.
Burwell’s office issued a written statement after the talks, saying that Florida’s request “falls short of the key principles HHS will use in considering proposals regarding uncompensated care pool programs.”
Gov. Scott contends that a letter HHS sent to Florida last month linked the expiration of the fund for hospitals with Florida’s refusal to exercise its option to expand health insurance coverage through Medicaid. Scott filed a suit against HHS last week, alleging that the federal government is trying to coerce the state into expanding Medicaid. The governors of Texas and Kansas, which receive similar funding to help their hospitals, have said they support Florida’s lawsuit.
But after meeting with Scott, Burwell insisted that “whether a state receives federal funding for an uncompensated care pool is not dependent on whether it expands Medicaid.” Whether to expand Medicaid, or not is “a state decision,” she reaffirmed.
That seemed to leave open the question of whether some funding might still be available for the hospital program — albeit at a lower level — if a state does not expand.
Scott said he needs an immediate answer from HHS on how much money, if any, the administration might provide, so that he and Florida’s legislature can complete their budget deliberations.
“We need our answer right now,” he said.
Burwell indicated Scott might have to wait a while longer.
“HHS heard the Governor’s request for a timely response to help the state meet its budget timeline,” her office said in the written remarks. “HHS believes completion of the public comment period, on-going discussions with the state, and the state’s submission of its proposal to CMS are the next steps in the process.”
The 30-day comment period has about two weeks remaining.
Florida is one of 21 states that chose not to expand Medicaid under the Affordable Care Act. That left about 800,000 Floridians without health insurance.
Burwell has said HHS prefers that the state expand health care coverage via Medicaid, rather than continue full federal funding of the low-income pool that subsidizes hospitals.
The bitter dispute over Medicaid expansion between the Republicans who control Florida’s House and the Republicans who control the state’s Senate led the Florida legislature to adjourn last week without passing a state budget for the fiscal year that begins July 1. Lawmakers are expected to return to Tallahassee in June to resume budget deliberations.
Florida’s House has adamantly opposed expanding Medicaid, with House Speaker Steve Crisafulli last week calling it “a broken system, with poor health outcomes, high inflation … federal strings, and no incentive for personal responsibility for those who are able to provide for themselves.”
But on Wednesday, Scott had good things to say about how well Medicaid was working in Florida. In the past two years, the state has turned over most of the Medicaid program’s operations to private Medicaid health plans.
“We now have a program that works,” Scott said. “We know what it’s going to cost us. We have insurance companies responsible for taking care of Medicaid recipients, and we have Medicaid recipients who know who is responsible for their care. … And we now have a budget surplus.”
Nonetheless, Scott said he doesn’t trust the federal government’s promise to fund Medicaid expansion under the health law; he fears the state will be on the hook to pick up too much of the cost. The federal government is paying all the costs through 2016, and then is to pay at least 90 percent of the costs.
A year ago, federal officials warned Florida leaders that the low-income pool that subsidizes hospitals would end this year, but Scott included the money in his proposed state budget anyway.
Florida Gov. Rick Scott Tuesday followed through on his threat to file a lawsuit alleging HHS is illegally trying to coerce the state into expanding Medicaid eligibility by threatening to end funding for hospitals that care for low-income patients.
As part of a federal Medicaid waiver, Florida has received between $1 billion and $2 billion annually since 2005 in low-income pool funding, which helps safety net providers with uncompensated-care costs. That waiver is set to expire in June.
Earlier this month, the CMS informed the state that “the future of the (low-income pool), sufficient provider rates and Medicaid expansion are linked.” The Obama administration has delivered a similar message to other states that have low-income funding under Medicaid waivers and have decline so far to expand Medicaid eligibility under the Affordable Care Act.
Florida’s Senate supports expansion, which would provide coverage to as many as 800,000 individuals. However, House leaders and Scott do not. The split on Medicaid has led to an impasse on the state’s budget, with the House adjourning two days before the end of the legislative session after feeling a compromise could not be reached. State leaders will have to convene a special session to address the budget before the next fiscal year begins July 1.
Scott and Florida Attorney General Pam Bondi have asked Paul Clement, the attorney who successfully argued that the Obama administration could not coerce states into Medicaid expansion in NFIB v. Sebelius in 2012, to represent Florida in the case.
“President Obama’s sudden end to the Low Income Pool (LIP) healthcare program to leverage us for Obamacare is illegal and a blatant overreach of executive power,” Scott said in a statement. “This sort of coercion tactic has already been called illegal by the U.S. Supreme Court.”
The CMS said in its letter to Florida officials >and has communicated to other states, including Texas, Kansas and Tennessee, that the low-income pool should not pay for costs that would be covered if the state expanded Medicaid eligibility.
The administration says the extension of the low-income pool is not a quid pro quo for Medicaid expansion but also emphasizes that the funding is part of an optional and temporary program established under a Medicaid waiver granted by the CMS.
Legal experts are divided about the governor’s prospects for success. They note the Supreme Court’s decision on NFIB v. Sebelius expressly prohibited HHS from taking away all of a state’s federal Medicaid funding in order to get it to expand Medicaid. Some legal observers consider it a stretch to say withholding low-income pool funding presents a similar threat.
“The decision to expand Medicaid, or not, is a state decision,” CMS spokesman Aaron Albright said in an e-mail. Albright said the agency does not comment on litigation.
“We will work with Florida and each state that has an uncompensated care pool regardless of its Medicaid expansion status, to support access to health care for low-income residents that works for individuals, hospitals and taxpayers, taking into account the state’s specific circumstances,” Albright said.
Rick Scott, et al v. HHS was filed in U.S. District Court in Pensacola.
Jim Nathan, CEO of Fort Myers, Fla.-based Lee Memorial Health System, is watching his state’s ferocious political battle over Medicaid expansion with growing concern. The stakes are high for his system’s three hospitals.
Under a federal Medicaid waiver that expires in June, Florida receives between $1 billion and $2 billion annually to help its safety net providers with uncompensated-care costs. The Obama administration recently made clear that it’s tying possible renewal of the funding to the state expanding Medicaid coverage to nearly 800,000 adult residents with incomes up to 138% of the federal poverty level. Florida’s Republican-led Senate supports the administration’s position, while Gov. Rick Scott and the GOP-led House oppose it.
The CMS has delivered the same message to other non-expansion states that receive similar Medicaid supplemental funding, including Kansas, Tennessee and Texas, detailing criteria for receiving continued dollars. It also contacted five other states, including Arizona and California, that receive such funding and have already expanded Medicaid.
The moves signal a new, tougher stance by the administration in its ongoing campaign to persuade Republican-led states to expand Medicaid under the Affordable Care Act.
The latest actions by HHS Secretary Sylvia Mathews Burwell and acting CMS Administrator Andy Slavitt suggest the administration may go as far as withholding the extra funding—at the risk of causing disruption of safety net care—to get people covered through the expansion while President Barack Obama is still in office.
U.S. Sen. Bill Nelson (D-Fla.) said Burwell considers the low-income pool “paying two times for the same thing” because states can receive federal Medicaid expansion funds to provide coverage for the same population.
“CMS used to be a lot more accommodating and flexible with states as they tried to achieve the same goals,” said Philo Hall, an attorney at Epstein Becker & Green and former associate director for health on the White House Domestic Policy Council. “But in these final two years of the Obama administration, they have a more aggressive leadership team.”
The political stakes are high. It’s unclear which party voters would blame in the 2016 elections if states that refuse to expand Medicaid lose their uncompensated-care funding, causing patients to lose access to coverage and possibly forcing hospitals to close. “I do not think that the House or the governor want this blood on their hands when this cart goes into the ditch because people will not come to the table … over healthcare funding,” Florida Senate Budget Committee chairman Tom Lee said last week during a Senate session.
In Florida, Nathan and other hospital leaders are torn because they strongly support a Senate bill that would expand Medicaid. But they don’t want to risk losing the low-income pool (LIP) funding if Medicaid expansion dies. Nathan’s system receives about $48 million a year in pool funding, which helps subsidize its regional trauma center, complex children’s services, low-income clinics and medical-residency training clinic. “We are very dependent on LIP funding,” he said.
The fight has expanded to Republican-led Kansas, Tennessee and Texas, where GOP leaders adamantly oppose any Obamacare programs. Florida and Texas are the big enchiladas, because expanding Medicaid in those states would extend coverage to nearly 2 million uninsured people. “We told states that our letter to Florida articulates key principles CMS will use in considering proposals regarding uncompensated-care pool programs in their states, but that discussions with each state will also take into account state-specific circumstances,” CMS spokesman Aaron Albright said.
The administration’s aggressive linkage of uncompensated-care funding to Medicaid expansion has drawn varied responses.
“It’s blackmail,” said Robert Weiner, a Democratic strategist and former White House spokesman. “I don’t think CMS needs to do this.”
“They are playing with fire in Florida (because) that state is so important during presidential elections,” said Bradley Blakeman, a Republican strategist and principal at the 1600 Group, a consulting firm.
But Cindy Mann, who recently stepped down as the CMS’ Medicaid chief, said the administration’s position represents well-established policy on Medicaid waivers. “One of the principles of the uncompensated-care pool waivers is that the funds are used to cover care for people … who don’t qualify for Medicaid,” said Mann, now a law partner at Manatt, Phelps & Phillips. “So it is highly relevant to consider (Medicaid) expansion, as the Affordable Care Act provides an avenue of coverage.”
The Obama administration’s new approach is likely to face legal attacks. Scott has promised to sue, arguing that the linkage violates a 2012 U.S. Supreme Court decision that the federal government cannot make a state’s Medicaid funding contingent on expanding the program under the ACA. Texas Republican Gov. Greg Abbott said last week that he would support Scott’s lawsuit. “The Supreme Court made it very clear that the Constitution does not allow the federal government to use these coercive tactics against the states,” Abbott said in a written statement. “Medicaid expansion is wrong for Texas.”
Legal experts differed on Scott’s chances of prevailing in the courts. One issue is that the Supreme Court ruled based on the threat of withholding all federal Medicaid funding from a state, not the relatively small portion from a discretionary waiver program. “There is no precedent of where to draw the line,” said Jesse Witten, a partner at Drinker Biddle & Reath. “It’s less than a full-blown shutdown of the Medicaid program, but (it’s) significant.”
Some provider groups say they feel caught in the middle in the current showdown. They have tried everything over the past several years to get their Republican governors and legislative leaders to expand Medicaid. But they warned that the new federal pressure could prove counterproductive.
“The reality is, we’re just not going to get there for a while, (though) maybe someday,” said Craig Becker, president of the Tennessee Hospital Association. His state’s Republican governor, Bill Haslam, recently tried to pass a Medicaid expansion model to extend coverage to about 200,000 Tennesseans, but it was blocked by Senate Republicans. The state receives about $500 million a year in federal uncompensated-care funding. “If (the CMS) is going to do this, it’s going to be terribly disruptive,” Becker said.
The National Rural Health Association plans to reach out to state hospital associations to pressure the administration into backing down, said Maggie Elehwany, the group’s vice president for government affairs. “This draconian threat leaves rural patients as the ones who are going to suffer,” she said.
In Texas, hospital leaders were split on the administration’s approach, given state GOP leaders’ implacable opposition to Medicaid expansion. “To tie (uncompensated-care funding) to Medicaid expansion would hurt the vulnerable population (it) was created to help,” said John McWhorter, president of Baylor University Medical Center at Dallas.
But George Masi, CEO of Harris Health System, the major safety net provider in Houston, said he supports the administration’s efforts to push Texas to expand Medicaid. “Nobody wins in a scenario where we aren’t providing care to those who require it,” he said.
For now, Medicaid officials in Kansas, Tennessee and Texas say they aren’t too worried because their waiver expirations are a year or more away. Kansas’ program expires in January 2018, Tennessee’s in June 2016 and Texas’ in September 2016.
In Florida, however, the threat is dire. “We must stress the importance of maintaining LIP funding for the short term,” said Jim Burkhart, CEO of Tampa General Hospital. “The loss of $86 million in LIP funding would seriously impact our ability to maintain our mission.”
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