Highlight on Maine: Able-bodied MaineCare recipients could be subject to more stringent requirements

“Able-bodied adults” would be subject to work/education requirements and a lifetime limit of five years under changes Mary Mayhew, director of the Maine Department of Health and Human Services, proposed to Maine’s Medicaid program, MaineCare. In a letter to HHS Secretary Tom Price, Mayhew said she would be seeking the changes in a forthcoming formal 1115 demonstration waiver request.

Mayhew’s letter comes at the heels of a referendum campaign to expand Medicaid in Maine at, according to Mayhew, a cost of $400 million over the next five years. A second motivation is the apparently sympathetic Trump Administration, which has proposed replacing Medicaid with block grants.

Mayhew said that the state has expanded its Medicaid program over decades, resulting in the use of hundreds of millions of state dollars “to turn Medicaid into an entitlement program for working-age, able-bodied adults.” MaineCare serves 270,000 individuals, just over 20 percent of Maine’s population, which, Mayhew said, represents a 22 percent reduction in enrollment since 2011.

Mayhew’s Medicaid proposals include the following:

  • work or education requirements for able-bodied adults in the Medicaid program, similar to the work requirements for Temporary Assistance for Needy Families (TANF) or Able-Bodied Adults Without Dependents (ABAWDs) in the Supplemental Nutrition Assistance Program (SNAP);
  • a five-year lifetime limitation on able-bodied adults’ eligibility for Medicaid;
  • limiting non-emergency transportation (NET) to situations where the underlying service to or from which individuals are being transported is a required Medicaid service and requiring them to access existing transportation resources before accessing NET;
  • requiring monthly premiums for adults who are able to earn income;
  • requiring monthly coinsurance of a set amount (approximately $20) for all members, cost-sharing of $20 for using the emergency department, and fees for missed appointments;
  • applying a reasonable asset test to Medicaid; and
  • waiver of the retroactive coverage of services incurred during the 90 days before Medicaid eligibility.

 

OCR shows no signs of slowing HIPAA enforcement

The HHS Office for Civil Rights (OCR) is on pace to have another record-breaking year for enforcement actions against covered entities (CEs) and business associates (BAs) accused of Health Insurance Portability and Accountability Act (HIPAA) (P.L. 104-191) violations. As of February 13, 2017, it had already entered into two resolution agreements with CEs and imposed civil monetary penalties (CMPs) on another for only the third time in its history. Prior to 2016, the OCR had not entered into more than six resolution agreements with CEs or BAs in single year. As of December 2016, the OCR had entered into twice that number. As of February 13, 2016, the OCR had just imposed its second CMP, but had not yet entered into any resolution agreements.

The agency kicked off the year by entering into a $475,000 resolution agreement with Presence Health. Unlike past agreements that settled potential violations of the HIPAA Privacy and Security Rules, the Present Health resolution represented the OCR’s first agreement to resolve potential violations of the HIPAA Breach Notification Rule. Presence failed to notify the OCR, affected individuals, and the media that paper-based operating schedules containing the protected health information (PHI) of 836 individuals had gone missing in the statutorily-required 60-day timeline for breaches affecting more than 500 individuals; instead, it waited more than 100 days.

Eight days later, the OCR announced a $2.2 million resolution agreement with MAPFRE Life Insurance Company of Puerto Rico for Security Rule violations affecting the data of 2,209 individuals. The OCR determined that MAPFRE failed to perform a risk analysis, implement risk management plans, and encrypt data stored in removable storage media led to a breach caused when a thief stole a USB data storage device containing electronic PHI (ePHI).

In early February, the OCR announced that it had issued a final determination and imposed a $3.2 million CMP on Children’s Medical Center of Dallas due to a pattern of noncompliance with the Security rule. Children’s suffered a breach in 2010 due to the loss of an unencrypted, non-password-protected BlackBerry device containing the ePHI of 3,800 individuals.  It suffered a second breach in 2013; despite the first breach, Children’s had failed to encrypt a laptop containing the ePHI of 2,462 individuals that was later stolen. The agency determined that the CMP was merited based on Children’s failure to implement risk management plans, in contravention of prior recommendations to do so, and its failure to encrypt mobile devices, storage media, and workstations. The OCR also imposed CMPs against Lincare, Inc., a home health company, in 2016 and against Cignet Health in Prince George’s County, Maryland, in 2011.

The agency stepped up enforcement efforts in 2016, in part due to negative reports regarding its performance from the HHS OIG and the Government Accountability Office (GAO). It began the Phase 2 audit process, targeting both CEs and BAs, and announced its intention to allocate resources for the first time to investigate complaints of breaches affecting 500 individuals or fewer. It appears geared to continue, if not ramp up, its enforcement efforts, but the impact of newly appointed HHS Secretary Thomas E. Price, M.D.–who will appoint a new OCR director–remains to be seen. Price, a physician and former Congressional representative has historically opposed government regulatory activity of physicians. However, Adam H. Greene, Partner at Davis Wright Tremaine, suggests that, although Price the physician may dislike HIPAA, “his personal views will [not] necessarily lead to a significant change in enforcement.”

 

Medicaid fills a space for children with special health care needs

Medicaid is the sole source of coverage for 36 percent of children with special health care needs, according to a Kaiser Family Foundation (KFF) Issue Brief. Public insurance, like Medicaid, is important for many children with special health care needs because the Medicaid program covers medical and long-term care services that are either not covered or subject to limited coverage through private insurance. The proposed restructuring of Medicaid financing would likely impose limits on the scope of benefits available to all Medicaid beneficiaries. The KFF believes that Medicaid reform should carefully evaluate the potential impact on children with special health care needs.

Special Health Care Needs

HHS reports that nearly 20 percent of all U.S. children under 18 years of age have special health care needs. Additionally, one in five U.S. families has a child with a special health care need. HHS defines special health care needs as applying to children who  “have or are at increased risk for chronic physical, developmental, behavioral or emotional conditions and who also require health and related services of a type or amount beyond that required by children generally.” Special health care needs stem from conditions including Down syndrome, cerebral palsy, depression, anxiety, and autism. Children falling under the definition have multiple and varied needs. For example nearly 70 percent of children with special needs have difficulty with bodily functions such as breathing, swallowing, or chronic pain. Children with special health care needs often have conditions which require nursing, therapy, and mental health counseling services.

Demographics

The majority (73 percent) of children with special health care needs live in low or middle-income families. This means that 73 percent of children with special health care needs live in families with incomes below 400 percent of the federal poverty level. Of the 11.2 million children with special health care needs, 59 percent are white, 16 percent are black, 17 percent are Hispanic or Latino, and 8 percent fall into other racial or ethnic categories.  Forty-one percent of children with special health care needs are between 12 and 17 years old, 39 percent are between six and 11 years old, and 21 percent are between zero and five years old.

Eligibility

The Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) required states’ Medicaid programs to cover children in families with incomes up to 138 percent of the federal poverty level. However, all states expanded financial eligibility for children above that level. As of January 2017, the median eligibility for Medicaid and CHIP children is 255 percent of the FPL. States may also make children who receive federal Supplemental Security Income (SSI) benefits eligible for Medicaid. Such children reside in poor families and are disabled in a way that severely limits their ability to function at home, school, and in the community.

Coverage

Regardless of whether a state chooses to cover such services for adults, children are eligible for Medicaid’s Early and Periodic Screening Diagnostic and Treatment (EPSDT) benefit, which includes regular medical, vision, hearing, and dental screenings as well as other services necessary to “correct or ameliorate” physical or mental health conditions. Additionally, because private insurance is designed to meet the health care needs of a generally healthy population, Medicaid can fill the gap to provide care related to more intensive and chronic needs.

Conclusion

Medicaid provides a board scope of services and coverage to children with special health care needs. For many families, Medicaid serves as an important source of insurance and a means to fill gaps presented by inadequate private insurance. As a result, lawmakers should be cautious when evaluating Medicaid reforms to consider the impact such restructuring could have on children with special health care needs.

Structure call coverage arrangements to avoid Stark & AKS issues

When compensating physicians for the time they spend on-call, hospitals should draft call coverage agreements with care to avoid potential problems implicating federal laws prohibiting physician self-referral (Stark Law) and kickbacks (Anti-Kickback Statute (AKS)). In a webinar presented by the Health Care Compliance Association (HCCA), Robert G. Homchick, partner at Davis Wright Tremaine LLP, and Scott M. Safriet and Adam S. Polsky, partners at HealthCare Appraisers, Inc., discussed changes to the call coverage risk analysis based on court opinions and changes in government implementation of rules.

As with most physician compensation arrangements, the Stark Law (42 U.S.C. §1395nn) is the threshold issue when analyzing call coverage agreements; additionally, if the agreement passes muster under Stark, the AKS (42 U.S.C. §1320a-7b) risks should be relatively modest. Both analyses contain some of the same considerations, such as fair market value (FMV) and commercial reasonableness.

Homchick, Safriet, and Polsky noted the following concerns for call coverage:

  • on-call coverage is becoming more expensive, but hospitals are facing decreased reimbursement; and
  • because traditional methods of securing call coverage no longer apply to all situations, hospitals are becoming more creative to obtain coverage.

To effectively secure coverage, hospitals should consider many options, and determine which is best applied in their situation. Potential coverage options include concurrent coverage, telemedicine, bundling on-call coverage with services beyond the emergency room, on-call coverage payment for employed physicians, and use of the “activation fee” concept.

However, the webinar cautioned that not all arrangements are the same, and in situations where it is truly difficult to secure coverage, a different approach may be necessary. Additionally, hospitals should look into the underlying reasons of why securing that coverage has been difficult—for example, are there shortened response times, a physician shortage in the marketplace, or is coverage restricted or quasi-restricted.