MEDICAID REGULATONS OF IMPORT AND CONCERN

1. MEDICAID REGULATONS OF IMPORT AND CONCERN Public Policy Advocates Workshop, September 29, 2018 C. Scott Litch, Esq. CAE Chief Operating Officer and General Counsel slitch@aapd.org

2. TWO regulations WILL BE DISCUSSED • Medicaid “Access Rule” • Medicaid Managed Care Contracting Rule

3. Access rule background • Released in the May 6, 2011 Federal Register, the Centers for Medicare and Medicaid Services (CMS) proposed Medicaid regulations on methods for assuring access to covered services. These would provide greater CMS oversight of states when provider payment rate changes affect access to care. • On July 5, 2011, the AAPD and the ADA sent a joint comment letter to CMS.

4. Access rule background • While a step in the right direction, the AAPD, ADA, and other advocacy organizations did not believe the proposal went far enough. • The AAPD/ADA letter recommended more frequent review of states, a focus on market-based rates and the need for fee increases, and more uniform data collection. • The letter did commend CMS for embracing of the concept of analyzing the percentile which Medicaid payment represents of provider charges. http://www.aapd.org/upload/news/2011/4470.pdf

5. ACCESS RULE and legal landscape • In 2015, the U.S. Supreme Court ruled in Armstrong v. Exceptional Child that health providers do not have the right to sue a state Medicaid program under the “equal access” provision in the Medicaid law if they believe its reimbursement rates threaten their participation. • The Court pointed to Congress (and ultimately CMS) to create policies to ensure equitable access to services in state Medicaid programs. • CMS released the final access rule with a comment period on November 2, 2015.

6. ADDITIONAL aapd& adacOMMENTS • In early January 2016, the AAPD and ADA sent two joint comment letters to CMS. • We urged that dental services be included in state Access Monitoring Plans that had to be submitted to CMS by July 1, 2016. • A number of additional recommendations were made related to market-based reimbursements and measuring patient utilization via Dental Quality Alliance measures.

7. ACCESS RULE KEY PROVISIONS • States must publish “access review monitoring plans,” which include information such as reimbursement rates. Any rate cuts require a plan to mitigate the risk of reduced access to services for people who depend on Medicaid coverage. • As the rule has only been in effect since 2016, many states still have relatively new rate reporting systems and have not yet gathered enough data to determine the impact of the regulation.

8. Proposed 2018 changes • The 2018 proposed rule changes imply that states incur too high a burden to report their reimbursement rates. In turn, this significantly weakens requirements for states to review and report the impact of cuts and other policies affecting provider participation in Medicaid. • States may offer Medicaid benefits on a fee-for-service (FFS) basis, through managed care plans, or both. Under the FFS model, the state pays providers directly for each covered service received by a Medicaid beneficiary. Under managed care, the state pays a fee to a managed care plan for each person enrolled in the plan, and the plan is required to ensure necessary care is provided to those beneficiaries. CMS’s proposed rule change would largely apply to FFS care.

9. PROPOSED 2018 CHANGES • The biggest problem with the CMS proposed change is the impact on at least 3.9 million childrenin 11 states where Medicaid's guaranteed dental benefit for children is delivered through a FFS model even when other services may be administered through managed care. In some states, certain populations, such as children with special needs, receive all of their benefits through FFS care. • In effect, states would be able to make unchecked changes that hinder families abilities to find providers for FFS care, including needed oral health care– simply because a high proportion of their enrollees get their ​medical care​ through managed care.

10. DENTAL COMMUNITY COMMENT LETTER These concerns were raised in a comment letter to CMS signed by 43 groups including the AAPD, ADA, Children’s Dental Health Project, many state dental associations and state oral health coalitions https://s3.amazonaws.com/cdhp/Comments/OralHealth_MedicaidAccessProposedRegulationChangeComments_05.2018.pdf

11. DENTAL COMMUNITY COMMENT LETTER The 11 states referenced are: California, Delaware, Hawaii, Indiana, Iowa, Maryland, Mississippi, New Hampshire, South Carolina, Virginia, and Washington

12. Medicaid managed care contracting • On July 24, 2015, the AAPD and ADA filed joint comments on proposed CMS regulations concerning Medicaid and CHIP Managed Care contracting and comprehensive quality strategies. • This is an important issue because many states are moving to managed care contracts for Medicaid and CHIP services, including dental (although dentists may still be receiving FFS payments, the insurance company is being paid by the state based on a per enrollee per month figure). • In some states there have been concerns with inadequate contracts and oversight, resulting in low provider reimbursements, administrative burdens for providers and inadequate provider networks for program beneficiaries.

13. Specific ADA/AAPD regulatory comments • We supported the proposal to require Managed Care Organizations (MCOs), Prepaid Inpatient Health Plans (PIHPs) and Prepaid Ambulatory Health Plans (PAHPs) with Medicaid contracts beginning after January 1, 2017, to utilize a minimum medical loss ratio (MLR) requirement in the development of actuarially sound rates. It was also recommended that CMS should provide a clear definition for plans of what should be included or excluded as administrative costs, and develop standardized reporting requirements.

14. Specific ADA/AAPD regulatory comments • We supported the proposal that capitation rates should be "sufficient and appropriate for the anticipated service utilization of the populations and services covered under the contract and provide appropriate compensation to the health plans for reasonable non-benefit costs." We suggested that state programs utilize existing data from commercial dental plans to create utilization benchmark targets for populations enrolled in Medicaid managed care plans. 

15. Specific ADA/AAPD regulatory comments • We supported the proposal to require Managed Care Organizations (MCOs), Prepaid Inpatient Health Plans (PIHPs) and Prepaid Ambulatory Health Plans (PAHPs) with Medicaid contracts beginning after January 1, 2017, to utilize a minimum medical loss ratio (MLR) requirement in the development of actuarially sound rates. It was also recommended that CMS should provide a clear definition for plans of what should be included or excluded as administrative costs, and develop standardized reporting requirements.

16. Specific ADA/AAPD regulatory comments • Noting that the proposed rule requires that States establish time and distance standards for specific network provider types, including pediatric dental services, AAPD-ADA encouraged CMS to define pediatric dental services as requiring a specific provider network composed of pediatric and general dentists and other dental specialists, with unique time and distance standards. It was also noted that AAPD-ADA do not support provider to beneficiary ratios as the sole means of assessing network adequacy. Rather, CMS was encouraged require States to address geographic variations when setting adequacy standards.

17. Specific ADA/AAPD regulatory comments • AAPD-ADA noted that the Healthcare Effectiveness Data and Information Set (HEDIS) measure, Annual Dental Visit, is not a sufficient measure to determine beneficiary access to dental services. Instead, it was recommended that programmatic access measures developed by the DQA be used to assess utilization and access. Specifically, CMS was urged to adopt programmatic and plan level measures developed by the DQA based on the measure set titled "Dental Caries in Children: Prevention and Disease Management." 

18. Specific ADA/AAPD regulatory comments • AAPD-ADA supported efforts to require plan accreditation, and urged CMS to pursue standards for readiness assessment of prior to a contract award. A readiness assessment should examine elements such as a plan’s ability to provide dental services to Medicaid enrollees; quality improvement and utilization management function capability; the ability to provide an adequate, accessible network; the technical capacity to process claims; the ability to process grievances and appeals; systems for enrollee support and outreach; and systems for provider network support.

19. Medicaid managed care contracting FINAL RULE • Final Rule was released on May 16, 2016. Remember that virtually every state has some portion of their Medicaid program in managed care plans. At last 16 states deliver dental services through managed care plans. • For the first time, CMS, the federal agency with jurisdiction over the Medicaid program, is requiring states with managed care plans to meet certain benchmarks to ensure that care is actually delivered to Medicaid beneficiaries while maintaining state flexibility to design programs best suited for individual states. • · 

20. Medicaid managed care contracting • Note that in the MCO situation, the dental payer might simply operate as an administrative contractor processing claims and managing the network for the medical contractor with no financial risk between the medical and dental. The MCO could also be a risk-based contract between medical and dental.  Regardless of the type of situation, the MMC final rule requires the MCO to be accountable for all services in the contract between the MCO entity and the state, this includes dental services. • These changes do not impact fee-for-service Medicaid and are applicable to managed care organizations (MCOs) that operate under comprehensive risk contracts, prepaid inpatient health plans (PIHPs), prepaid ambulatory health plans (PAHPs) and primary care case management plans (PCCM).  

21. Medicaid managed care contracting final rule • The biggest change is that plans will need to adhere to an 85% medical loss ratio (MLR) requirement that is set to an actuarially sound capitation rate. The MLR information also must be publicly available.  This enables dental and patient advocates an opportunity to weigh in on these aspects of the managed care plans’ requirements. This change is effective for all risk plans that begin on or after July 1, 2017. • There is an opportunity to reach out to state authorities concerning network adequacy and to ask them to adopt certain dental quality measures sanctioned by the Dental Quality Alliance, which provide a mechanism for performance accountability for state programs and plans.    

22. Medical loss ratio and actuarial soundness • Plans will need to adhere to an 85% medical loss ratio (MLR) requirement that is set to the actuarially sound capitation. CMS is mandating calculation and reporting but does not require plans to meet a specific MLR as part of their contract obligations.  Actuarial soundness is prospective prediction (forward looking) while MLR is retrospective assessment and looks backward.  A state has flexibility in terms of whether there is a penalty if a plan does not achieve 85% at the end of the year even if the rate was set based on an assumption of 85%.  The final rule requires MLR information to be made publicly available and is a positive step for transparency.  CMS will review all contracts for actuarial soundness and request an explanation if it is determined that the MLR is not set at 85%. 

23. Utilization assumptions •  This rule opens up another avenue for advocacy at the state level. Utilization benchmark assumptions will need to be part of these calculations.  For example, if the capitation rate for the plan is set using an utilization assumption of 40%, then “good access” should be benchmarked at 40%. If a state wants to improve access, let’s say move it to 50%, then the rates should be set at a higher assumption and at the end of the year the plan should be held to an MLR and utilization benchmark. Further, since the state has the authority to set minimum reimbursement rates, provider reimbursement rates will also be part of the calculations.  State dental associations and pediatric dentistry chapters should actively seek to understand how these processes will function in their respective states.

24. VALUE-BASED PAYMENTS? • In the comments, ADA and AAPD urged caution in moving too quickly to a value based payment (VBP) system for Medicaid.  The final rule allows states to move in this direction but does not impose a requirement.  CMS is encouraging states to use the managed care program as a lever for delivery system reform. Funds can be budgeted towards performance improvement projects and delivery system reform. Unspent funds can stay with the MCO as long as they meet the metrics.

25. Minimum payments • The final rule permits states to require its MMC plans to adhere to a minimum payment fee schedule but does not require states to do so.  CMS does not believe it has the statutory authority to establish a minimum payment fee schedule for providers.  The rule also permits states to require that plans participate in multi-payer or delivery system reform efforts that are deemed actuarially sound.

26. Program integrity • CMS did not make changes to their proposed requirements but provided clarification on the definition of enrollment as it relates to provider screening and credentialing procedures for those providers who order and refer. • Screening requirements that are in place do require Medicaid providers that order and refer or provide services to undergo certain screening procedures based on risk level (i.e. durable medical suppliers are deemed higher risk than an individual provider in some cases).  • The screening requirements also require providers to disclose information on ownership and control.  Verification of a provider’s license under these screening requirements overlaps with the credentialing standards.  States are required to revalidate the enrollment of providers every 5 years. 

27. CREDENTIALING PROCESS • The credentialing process involves the activities taken by the state or managed care plan to verify education, training, liability record and practice history of providers.  CMS acknowledges this will overlap with screening procedures. The screening and credentialing processes are the steps for a provider becoming enrolled as a Medicaid provider with the state agency. Under fee-for-service programs, upon enrollment, the provider is loaded into the claim adjudication system as an approved provider and able to receive payment via electronic funds transfer. The “enrollment” of network providers within MMC, does not obligate any provider to participate in the fee-for-service delivery system. The final rule does permit managed care plans to make the state provider agreement form available to their network providers to expedite the process. • Note the new ADA credentialing system that AAPD encourages members to utilize. See information in the September 2018 PDT.

28. Network adequacy • The final rule requires states to establish specific time and distance standards, including standards for pediatric dental services. • The rule codified the requirement on accessibility which ensure physical access and accommodations for enrollees. The rule also requires networks to consider the needs of enrollees with limited English proficiency (LEP). • States have the authority to add additional provider types to adequacy standards but CMS did not add any additional providers to the final rule beyond those outlined.  T&D standards will apply to the following provider types: Primary Care (adult & pediatric); OBGYN; behavioral health; specialist (adult & pediatric); hospital; pharmacy; pediatric dental; and additional provider types when it promotes the objectives of the Medicaid program for the provider to be subject to T&D standards.

29. Network adequacy • CMS declined to define pediatric dental providers or define age categories for pediatric services as requested by ADA and AAPD.  Additionally, CMS specifically declined requests from commenters to set network adequacy standards for providers and specialists for which there is a known workforce shortage.  CMS will require these standards to be available on a state’s website to increase transparency.  • State dental associations and pediatric dentistry chapters will want to monitor their state’s implementation of network adequacy standards as it relates to pediatric dental services.

30. Quality rating system • The final rule establishes a requirement for a quality rating system (QRS) for Medicaid and CHIP plans and will require information to be publicly available so that beneficiaries can use the information as part of the plan selection process as part of the Quality Assessment and Performance Improvement (QAPI).  • The rule requires states to establish and implement a quality rating strategy that is effective 3 years after May 6, 2016 (publication date). The request for use of the Dental Quality Alliance measure set as part of dental measurement was acknowledged but a decision on specific measures was deferred to future rulemaking.  • CMS did state that the agency will engage stakeholders going forward through the public engagement process on specific measures that should be considered for dental services.   

31. Consumer choice • Beneficiaries must have a choice between at least 2 MCOs. The final rule prohibits a statewide MCO and extends the requirement to PAHPs. This may impact existing state programs and we will monitor to determine the impact on Medicaid dental programs. There is at least one state with one PAHP for its entire program. There is an exception allowed for rural areas.

32. Managed care contracting RESOURCES • ADA Publication Medicaid: Considerations When Working with the State to Develop an Effective RFP/Dental Contract (2015) https://www.ada.org/~/media/ADA/Member%20Center/FIles/Medicaid_RFP_Toolkit.pdf?la=en • ADA Guide to reporting metrics (2015) https://www.ada.org/~/media/ADA/Member%20Center/FIles/Medicaid%20Managed%20Care.pdf?la=en • Center for Health Care Strategies, Inc. Medicaid Contracting Strategies to Improve Children’s Oral Health Access (2014) https://www.chcs.org/media/Medicaid-Contracting-Strategies-to-Improve-Childrens-Oral-Health-Access.pdf

33. Next steps? • Monitor, work with state dental association, be vigilant- especially concerning network adequacy. • AAPD policy center will look at recommendations for best “hybrid” plan between fee-for-service and capitation. • AAPD, ADA, and others continue to push, with Congressional supporters, for CMS to fill the Chief Dental Officer position.

34. There was a recent positive CMS announcement On May 4, 2018, CMS released an informational bulletin that discusses the importance of state Medicaid and CHIP programs properly implementing their pediatric dental periodicity schedules in order to ensure children’s access to critical dental coverage. In particular, two dimensions are discussed. First, states should ensure that fee schedules and payment policies are aligned with periodicity schedules. Second, the periodicity schedule should be treated as a “floor” for coverage of dental services, not a “ceiling.” The informational bulletin can be accessed on Medicaid.gov at: https://www.medicaid.gov/Federal-Policy-Guidance/Federal-Policy-Guidance.html

35. QUESTIONS?