Recent federal court action ensuring that employers may continue to take advantage of minimum wage and overtime exemptions for companionship services protects providers of home and community-based services (HCBS), at least for the time being. As this Vorys, Sater, Seymour and Pease health care alert indicates, the ruling means that employers of direct care workers may continue to take advantage of minimum wage and overtime exemptions for companionship services as they have in the past. This is important to the stability of the provision of HCBS under states’ Medicaid HCBS waivers.
The State of Ohio has earned a $75 million implementation grant to continue work already underway to reform health care delivery and payment.
The Centers for Medicare & Medicaid Services (CMS) announced earlier this week state recipients of second round funding for payment and system reform initiatives. Ohio is included in the list of winners, with a $75 million implementation grant to continue funding its State Innovation Model (SIM) focused on widespread use of patient centered medical homes, as well as implementation and expansion of episode based payments.
Round two funding provides more than $665 million to support state-led, multi-payer health care payment and service delivery models that will improve health system performance, increase quality of care, and decrease costs for payers and consumers. The Governor’s Office of Health Transformation envisions rollout of its SIM as follows:
Additional information on State Innovation Model initiatives can be found on this link.
Maureen Corcoran, President of Vorys Health Care Advisors, participated on Monday’s live Cincinnati Edition panel on 91.7, WVXU in Cincinnati. Maureen and Cara Stewart, Health Law fellow with the Kentucky Equal Justice Center, and Kathryn Keller, Interact for Health Vice President for Policy and External Relations, spent nearly 40 minutes discussing with host Mark Heyne the experience of individuals who enrolled in Marketplace health insurance plans in 2014 and how the open enrollment period for 2015 (beginning in November) promises to be an improved experience. The panel also discussed Ohio’s and Kentucky’s experiences with enrollment in health insurance, including Medicaid expansion.
Listen to the panel’s discussion.
The Ohio Department of Medicaid recently announced that its work to rebalance spending on long-term services and supports in favor of home- and community-based services has hit an important milestone one year ahead of schedule.
In June 2013, Ohio was awarded $169 million in additional federal Medicaid matching funds as a result of the state’s commitment to increase access to non-institutional long-term services and supports. The federal Balancing Incentive Program (BIP) rewards states that direct at least 50% of Medicaid spending on long-term services and supports to home- and community based services, instead of nursing homes and other institutions. To be eligible for federal funding, BIP also requires that participating states implement structural changes, including a no wrong door/single entry point system, conflict-free case management, and core standardized assessment instruments.
On September 10, 2014 – one year ahead of its September 30, 2015, deadline – the state announced that it surpassed the 50% spending target for home- and community-based services. This is down from 61% just two years ago.
Two federal appeals courts ruled yesterday on a key provision of the Affordable Care Act (ACA) – and reached opposite conclusions.
At issue is the component of the ACA that allows individuals who earn between 100% – 400% of the federal poverty level (FPL), or $11,670 and $46,680 for an individual, to be eligible to receive a subsidy to purchase insurance in the Health Insurance Marketplace. Specifically at issue is the actual language of the ACA provision that says individuals living in states that operate their own Marketplaces are eligible to receive subsidies if they meet the income eligibility criteria specified in the ACA. Seventeen states currently operate their own Marketplaces, while the rest rely on the federal Marketplace or have a partnership with the federal Marketplace.
The DC Circuit ruled 2-1 that the Internal Revenue Service (IRS) lacks the authority to allow subsidies to be provided in Marketplaces not run by the states. Conversely, the Fourth Circuit – based in Richmond, VA – ruled that the law’s language is ambiguous, and that the IRS is free to allow the subsidies in all states, including those that do not operate their own Marketplaces. Because there is uncertainty about the provision’s application, the question may end up in the Supreme Court.
The Obama administration has indicated that it will appeal the DC Circuit’s ruling. The Justice Department will ask the entire appeals court panel to review the decision (called an en banc hearing). That panel is dominated by judges appointed by Democrats, 7-4. The court’s rules indicate that the ruling will not become effective for 45 days to give the government time to ask for an en banc hearing, or seven days after the en banc hearing has been denied. The administration argues that the commonsense interpretation of the ACA provision is that Congress intended for everyone to have access to subsidies, not just individuals living in states that operate their own Marketplaces.
If the ruling stands, it could mean that at least five million individuals in states that do not operate their own Marketplaces would face an average premium increase of 76%. The loss of subsidies will make health insurance unaffordable for many individuals who were planning to use those subsidies in the Marketplace. As reported by the Washington Post more than nine in 10 people in states that rely on the federal Marketplace bought health insurance with the help of subsidies. The average tax credit to those people for coverage this year is $276, lowering their premium from an average price of $345 per month to an average of $69. The loss of subsidies will make complying with the individual mandate to have insurance essentially impossible for many individuals for whom purchasing insurance only would have been possible with the help of the subsidies.
Operationally, this is how the two rulings will impact various states once the rulings become effective and until/unless they are overturned:
- DC Circuit (DC): Subsidies in non-state based Marketplaces will be prohibited. However, DC operates its own Marketplace so, operationally, this is a moot point.
- Fourth Circuit (NC, SC, WV, VA, MD): Subsidies in non-state based Marketplaces will be permitted. Business as usual.
- Rest of the country: Business as usual.
Continue to watch this space for updates.
As recent high school graduates spend summer dreaming about the beginning of their college careers, it’s unlikely that many are thinking about how they are going to get their health insurance. But they should not throw caution to the wind; according to federal law, college students, like most other adults, are required to have health insurance.
They can satisfy the requirement posed by the Affordable Care Act’s (ACA’s) “insurance mandate” in a number of ways, including staying on their parents’ insurance until age 26, purchasing insurance in the health insurance marketplace, getting coverage from their college’s student health insurance plan, or enrolling in Medicaid if they meet the applicable enrollment criteria.
In addition to the ACA’s mandate, college students should remember to check state insurance laws in the state where they are going to college. Staying on their parents’ insurance may require some extra consideration. For example, since 1989, Massachusetts law has required all full- and part-time students in higher education to participate in a Student Health Program or in a health benefit plan with comparable coverage. A health plan that provides coverage through a closed network of providers and that is accessible only for emergency services where the student is studying is not comparable coverage. So if, for example, a student from Ohio is going to college in Massachusetts and is covered by his or her parents’ insurance, but the insurance company has a closed provider network and only emergency care is available outside the network, this does not satisfy the requirement and the student would be required to participate in a Student Health Program.
Many states have decided to expand Medicaid to individuals earning up to 138% of the federal poverty level ($16,105 for an individual). Regulations issued by the United States Department of Health and Human Services last fall made clear that Medicaid can pay the insurance premiums for Medicaid eligible individuals who purchase health plans sold in the individual market. In order for a state to take advantage of this arrangement, participation must be voluntary and the cost of the health plan must be comparable to the cost of providing coverage under the Medicaid program.
Currently, 27 states have decided to expand Medicaid. According to a recent NPR news story, colleges in some of those states are planning to use premium assistance to enroll Medicaid-eligible students in their school’s student health insurance plan. As required by the federal regulations, Medicaid will be secondary coverage. College students who qualify for Medicaid even without the expansion (i.e., those who meet their state’s “traditional” Medicaid eligibility criteria) can also participate in a premium assistance plan.
Historically, student health insurance plans often did not offer a robust package of benefits. But under the ACA, Medicaid plans and small group and individual plans (including student health plans) sold inside and outside of the health insurance marketplace must cover a package of 10 categories of items and services known as Essential Health Benefits. According to Stephen Beckley, a consultant on college health insurance, most student plans are comparable to gold or platinum level plans sold in the health insurance marketplace. (Plans sold in the health insurance marketplace come in four “metal levels” based on their actuarial value.)
So, college-bound students, even though you just graduated from high school and may have put your brain on autopilot for the summer, get a jumpstart on thinking about how you’re going to get health insurance when you’re in college. When you sprain your ankle playing intramural floor hockey, you’ll thank us.
On Wednesday, June 11, 2014, the Substance Abuse and Mental Health Services Administration (SAMHSA) will hold a public listening session to solicit information regarding the Confidentiality of Alcohol and Drug Abuse Patient Records Regulations, 42 C.F.R. Part 2. Under these regulations, a federally assisted substance abuse program generally may only release identifiable patient information related to substance abuse treatment services with the individual’s express consent.
It has been more than 25 years since the confidentiality regulations have been updated. During this time, significant changes have occurred within the U.S. health care system, including the movement to integrate physical and behavioral health care. SAMHSA is now responding to concerns raised by a number of organizations that are excluding substance abuse treatment data due to the difficulty and expense of implementing the functionality and workflow changes necessary to comply with current regulations.
In consideration of these challenges, SAMHSA seeks to obtain direct input from stakeholders on updating the regulations. Click here to read more about the listening session and to register.
As recently reported in Modern Healthcare, the Centers for Medicare & Medicaid Services (CMS) have announced two initiatives that are likely to impact reimbursement to and operations of Medicaid managed care plans (MCPs).
The first initiative is a study of the adequacy of how states set reimbursement rates for Medicaid MCPs. Federal regulations require that Medicaid MCPs’ rates be “actuarially sound”. State Medicaid departments must work with actuaries who evaluate rate information and provide an “independent” certification as to the adequacy of the rates.
According to the Balanced Budget Act of 1997, actuarially sound rates are payments that are adequate to cover medical costs, administration, taxes, and fees. In 2002, CMS issued regulations defining actuarially sound rates as those that are:
- Developed in accordance with generally accepted actuarial principles and practices;
- Appropriate for the populations to be covered and the services to be furnished; and
- Certified as meeting applicable regulatory requirements by qualified actuaries.
The CMS analysis will aim to determine whether the rates are adequate to cover all anticipated medical and administrative costs, as well as taxes and fees, but not overpayments.
The adequacy of managed care plans’ rates impacts the adequacy of payments to providers with which the MCPs contract. However, while MCPs’ rates are to be adequate to cover their costs, there is no downstream requirement that rates paid to providers be adequate to cover the providers’ costs. Each state specifies requirements for provider access and networks, and the MCP is free to pay more or less than the state’s existing Medicaid fee-for-service rates, but adequate access must be assured.
CMS intends to release the results of the study this summer, although a CMS official reports that early findings are troubling. Criticism of CMS in the recent past has ranged from approval of rates that are too high or too low, inconsistency in reviewing rates for compliance with the actuarial soundness requirement, and approving rates that had not been certified by an actuary at all (according to the Modern Healthcare article, a 2010 GAO report found that Tennessee received approximately $5 billion a year in federal funds for rates that had not been certified by an actuary).
The second initiative is a new rule that will update Medicaid managed care regulations. The current regulations have been in existence for 16 years, and a lot has happened in the Medicaid managed care arena since then. Namely, significant expansion in participation in managed care. As of May 2011, 23 million people – about 40% of the Medicaid population – were enrolled in risk based managed care and another 13 million, or 22%, were enrolled in primary care case management programs (a non-risk based form of managed care). As of October 2010, only three states (Alaska, New Hampshire, and Wyoming) reported that they did not have any Medicaid managed care.
The regulations will include stronger beneficiary protections and account for major federal legislation that has been passed since the 1998 regulations were instituted.
Positive Education Program (PEP) recently released a video as part of its “Thanks for Bringing Out the Best In Me!” campaign and in conjunction with teacher appreciation week. The short video features local Cleveland leaders – including Congresswoman Marcia Fudge, State Representative Nickie Antonio, State Senator Tom Patton, and County Executive Ed FitzGerald – sharing stories about their favorite teachers. The messages are uplifting, insightful, and heartfelt, and highlight the important, life-long impact teachers have on young students.
PEP is Greater Cleveland’s largest non-profit agency committed to our community’s kids. PEP’s caring and competent professionals help troubled and troubling children learn and grow, providing strength-based special education and mental health services in partnership with families, schools, and communities.
On March 20, 2014, the Centers for Medicare and Medicaid Services (CMS) posted a “Transition Plan Toolkit” to assist states in developing their Home and Community-Based Settings (HCBS) 1915(c) waiver and section 1915(i) state plan amendment or renewal application(s) so that they comply with new requirements in the HCBS Final Rule, released earlier this year. The toolkit includes:
- A summary of the regulatory requirements of fully compliant HCB settings and those settings that are excluded. This document summarizes the final rule’s requirements for HCB settings, including the additional criteria for provider-controlled settings. It also sets forth the settings that are statutorily excluded from HCB settings as well as those presumed to not be HCB settings;
- Schematic drawings of the “heightened scrutiny process” as a part of the regular waiver life cycle and the HCBS 1915(c) compliance flowchart to assist states in developing their transition plans;
- Additional technical guidance on regulatory language regarding “settings that isolate.” This document describes characteristics of settings that may have the effect of isolating individuals receiving HCBS from the broader community. In broad terms, the guidance points to settings that have the effect of isolating individuals as those that are designed for or inhabited by primarily people with disabilities, settings that provide residents with an array of services and activities on-site, settings that give individuals limited, if any, interaction with the broader community, and settings that use interventions/restrictions that are used in institutional settings or that are deemed unacceptable for use in Medicaid institutional settings (i.e., seclusion). This document also provides a non-exhaustive list of particular settings that tend to isolate people from the broader community. This list includes farmsteads or disability-specific farm communities, gated communities for people with disabilities, residential schools, and settings that are co-located and operationally related (i.e., operated and controlled by the same provider) that congregate a large number of people with disabilities together and provide for significant shared programming and staff. CMS mentioned that depending on the program design, this could include, for example, group homes on the grounds of a private ICF or numerous group homes co-located on a single site or close proximity (multiple units on the same street or a court, for example). Notably, CMS also mentioned that most Continuing Care Retirement Communities (CCRCs) do not raise the same concerns around isolation as these examples, particularly since CCRCs typically include residents who live independently in addition to those who receive HCBS. Though none of the listed characteristics is dispositive in and of itself, settings that exhibit one or more of these characteristics will be subjected to heightened scrutiny in order for the Secretary to make a determination regarding its status as an HCB setting; and
- Exploratory questions that may assist states in the assessment of residential settings. This document in the toolkit sets forth questions that states may use as an optional guide in assessing whether the characteristics of Medicaid HCBS as required by the final rule are present. Characteristics that are expected to be present in all HCB settings, as well as all provider owned or controlled HCB settings, and associated traits that individuals in those settings might experience, are listed. For example, several questions in this document focus on individual choice, asking questions such as whether the setting was chosen by the individual and if the individual chooses when and where to eat. Other questions focus on isolation and access to services, such as whether individuals receiving HCBS receive services in a different area of the setting separate from individuals not receiving Medicaid HCBS. Specific privacy concerns are also highlighted, including whether an individual’s activity, diet, and medication schedule is posted publicly and whether a person has the ability to lock his or her bedroom or bathroom door. For provider owned or provider controlled HCB settings, states must address whether there is a legally enforceable agreement for the unit or dwelling where the individual resides such as a lease or written residency agreement. Further, for settings in which landlord tenant laws do not apply, states are to determine if the written agreement includes language that provides protections to address eviction processes and appeals comparable to those provided under the jurisdiction’s landlord tenant laws.
Absent from the toolkit was technical assistance or guidance regarding non-residential settings. However, according to CMS, they are currently developing additional information for states with regard to non-residential settings for HCBS participants. In the comments accompanying the regulations, subregulatory guidance was referenced in several areas: adult day and prevocational services, the process of operationalizing person centered planning, and issues associated with a client’s right to refuse. We will update you on any additional guidance that is issued.
The toolkit can be located at http://www.medicaid.gov/HCBS. If you have any questions, please contact VHCA President Maureen Corcoran at 614.464.5461 or Vorys Partner Suzanne Scrutton at 614.464.8313.