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The Centers for Medicare and Medicaid Services (CMS) published a proposed Medicaid Fiscal Accountability Regulation (MFAR) on November 18, 2019 that would significantly impact provider tax assessments, inter-governmental transfer (IGT) mechanisms and upper payment limit (UPL) programs. The proposed rule would impact Indiana particularly hard due to our long-standing provider tax mechanism, the quality assessment fee, and the county hospital nursing facility supplemental payment program. In addition, states around the nation are also significantly impacted as provider taxes and IGTs are used frequently for a variety of different Medicaid services – Indiana is not alone.
CMS states that the rule is aimed at ending financing gimmicks, where providers are funding the state’s obligations for financing Medicaid and therefore are letting states off the hook from financing their share in a more broad based and transparent manner. Both provider tax programs and IGT/UPL programs are not eliminated by the proposed rule, but new requirements on both types of financing make each mechanism harder, or potentially impossible, to employ.
The comment period for the proposed rule ended on February 1, 2020 and nearly 4,000 comments were filed. The comments from IHCA, AHCA, and Indiana Medicaid are provided to you below. IHCA and AHCA challenged CMS’s authority to even propose certain parts of the MFAR language due to legal constraints in the federal Social Security Act. Indiana Medicaid was not as direct in their comments, but did ask for a 5 year transition period in any final rule. IHCA and AHCA also asked for a 5 year transition period if a rule is finalized.
Generally, these are the two main issues impacting Indiana long term care:
The proposed rule was formally published in the Federal Register on November 18, 2019 and comments to CMS were due February 1, 2020. This is a normal process and the rule does not become effective on February 1, 2020. There is no way to accurately predict when the rule, if finalized, would be finalized after the comment period closes. CMS is required to read submitted comments and respond to them and that will take time. While there are details to figure out in the proposed regulation that may appear to end current IGT mechanisms or qualification for UPL programs in a quick manner, these mechanisms and programs do not end in February 2020.
The issues presented in the proposed rule are national in scope. IHCA is coordinating with AHCA and other groups at the state level that represent impacted providers like hospitals and community mental health centers. We are also beginning dialogue with state agencies and the Indiana legislature. From a high level, all options are on the table and we will aggressively explore robust policy, political, and legal strategies to shape this rulemaking process.
The proposed rule also implicates the work that IHCA is engaged in with Indiana Family and Social Services to improve Indiana’s Long Term Services and Supports programs for aged and disabled Hoosiers that qualify for Medicaid.
Prior to June 1, 2018, all Indiana traditional fee-for-service (FFS) Medicaid recipients living at home or in a nursing facility could arrange transportation to and from medical appointments by calling and scheduling directly with a transportation provider. This direct communication between the Medicaid recipient, or the recipient’s caregivers, and the transportation provider was efficient and resulted in relatively few problems in service delivery.
On June 1, 2018 Indiana Medicaid began a contract with Georgia- based Southeastrans (SET) for SET to “broker” all Non-Emergency Medical Transportation (NEMT) services for nursing home, assisted living, and community-based Medicaid members. Indiana Medicaid’s stated reasons for this new approach was to ensure more Medicaid members could access their transportation benefit, to improve the quality of the transportation network through credentialing and vehicle inspections, and to cut down on fraud and abuse through the use of prior authorization before a trip was provided.
In theory, the idea is good and had promised to be very efficient. In practice, the system has not worked as it was presented and has been very frustrating for residents and staff of nursing facilities. Here are just a few examples of issues that nursing facility residents and staff have and continue to experience:
Prior to the contract with SET and ever since the system has been in place, IHCA/INCAL staff and members have been active with Indiana Medicaid, state legislators and the Governor’s office to discuss the significant issues caused by the brokered system and implement solutions to the issues.
In the 2019 session of the Indiana General Assembly, IHCA/INCAL supported SB 480 that created an oversight commission for the NEMT system and also required additional data reports to be published and made available to the public. The bill also required SET to post on their website a clear place to file complaints along with the development of a complaint resolution process (see below for these resources).
IHCA staff and members have attended dozens of meetings and workgroups to positively impact the broken system. A summary of those meetings and workgroups is below.
NEMT Stakeholder Workgroups–Beginning in April 2019, FSSA hosted regular workgroup meetings with a large number of stakeholders, including IHCA members and IHCA staff, other provider groups, transportation provider groups and individual providers, as well as SET.
NEMT Update Meetings with Representative Cindy Kirchhofer–Beginning in May 2019, Representative Kirchhofer began hosting bi-weekly meetings to give OMPP and SET an opportunity to update her their workplan to address stakeholder concerns.
To work within the SET system, as continues to be required in order to obtain Medicaid-reimbursable transportation, below are a list of resources.
If you are interested in enrolling as a Medicaid transportation provider please visit this link to read about the enrollment process. IHCA/INCAL staff can connect you with appropriate Indiana Medicaid staff to help troubleshoot issues within the enrollment process.
IHCA/INCAL has been highly engaged in the development of policies aimed at helping Indiana grow home and community based services (HCBS) while maintaining direct access to necessary skilled nursing services. Dating back to 2014 IHCA/INCAL engaged the Family and Social Services Administration in the development of hte “5-8 Year Plan” to help “rebalance” Medicaid access and spending.
In addition to helping Hoosiers access needed care in the setting of their choice, another goal for IHCA/INCAL is to preserve the direct provider-patient relationship in the delivery of long term services and supports without inserting an insurance company or managed care company in the middle.
On July 9, 2019 IHCA/INCAL participated in the first meeting of a renewed effort to redesign Medicaid Long Term Services and Supports (LTSS). LTSS includes nursing facility, assisted living community, and other home and community based services. This renewed effort results from two years of advocacy from IHCA/INCAL of the need to restart discussions on streamlining access to care, improving stability of Medicaid program financing, and ensuring burden to providers and consumers is minimized and while lowering the future costs of Medicaid expenses for LTSS programs.’
From this meeting on July 9th a goal was established – to achieve access to LTSS by any Medicaid member within 48 hours of an identified need. To work on this vision, workgroups were established and IHCA/INCAL members and staff have been participating. The workgroups are:
Initial Recommendations of Systems Workgroups
Workgroup meetings will be held throughout the fall of 2019 with recommendations given to a combined, larger group of the workgroup participants and leaders. See the below resources for meeting materials and summaries.
Workgroup meetings were held through the fall of 2019, focusing first on the “Systems” Workgroups noted above. While the Payment Workgroup has not yet convened, that workgroup is expected to meet in the Spring of 2020.
The results of the Systems Workgroups are documented in a December 9, 2019 presentation, provided below, and focused on the following system reforms:
There is more detail in the slides and generally the System Workgroups identified the foundations of required change to process and procedure of eligibility and need determination.
The Payment Workgroup will begin work in the Spring of 2020 with the aim of examining the sources of payment to create adequate provider networks for the services that are necessary to serve a growing LTSS consumer base. Mixing together demographic change, service delivery preferences, and available state and federal funding will be the key challenge for this group, particularly in light of the proposed Medicaid Fiscal Accountability Regulation.
See the below resources for meeting materials and summaries, and check back here for updates as the work progresses.
On July 1, 2019 the new Certificate of Need (CON) program for Indiana comprehensive care facilities (nursing facilities) went into effect. The law does not apply to residential care facilities (assisted living). The CON program is the result of Senate Enrolled Act 190 from the 2018 session of the Indiana General Assembly, which delayed the effective date of the CON program until implementing regulations were adopted by the Indiana State Department of Health (ISDH). Those implementing regulations became effective July 1, 2019.
The CON law requires the ISDH and applicants for a CON to adhere to specific timelines. The review process will occur every year and begin on July 1 and last until the following June 30. The first review period will begin July 1, 2019.
The Indiana State Department of Health has also created a Certificate of Need website with the Bed Need Analysis, CON Application, and applicable statutes and regulations.
Severe sepsis and septic shock are major health care problems, affecting millions of people around the world each year, with a mortality rate of 20-50% and increasing in incidence. The issue of sepsis education, identification and treatment was addressed in the 2019 Session of the Indiana General Assembly. House Enrolled Act 1275 was passed into law to create a multi-disciplinary Sepsis Task Force charged with identifying, recommending and disseminating guidelines concerning sepsis relevant to specific health care settings. The legislation also requires a hospital to adopt, implement, and periodically update evidence based sepsis guidelines for the early recognition and treatment of patients with sepsis, severe sepsis, or septic shock that are based on generally accepted standards of care.
The Indiana State Department of Health has acted as the convener of the Task Force and has asked various industry stakeholders to create sub-task forces to develop recommendations. IHCA/INCAL has led the organization of the LTC Sepsis Task Force, which members include:
The LTC Sepsis TAsk Force will work during the fall and winter of 2019/2020 to develop recommendations in line with the legislative directive, then report back to the larger Sepsis Task Force in 2020.