Webinar: Delay, Deregulate, Derail — Health Care Roiled by Actions of Trump and Congress

Since January, both President Trump and Republican leaders in Congress have talked about a three-step process for repealing and replacing the Patient Protection and Affordable Care Act (ACA). While the first six months of the Trump administration has seen mixed results, its efforts to reign in or hold back regulations, combined with its delay in filling lower-level agency roles, has impacted regulatory review and issuance of new regulations. So, despite Congress’ inability to pass legislation to change parts of the ACA, there is still plenty for providers to be concerned about.

Join Associate Managing Editor Kathryn Beard, JD, on Wednesday, August 2, for this half-hour live webinar covering attempts by the Trump Administration and Congress to delay, deregulate, and derail significant parts of federal health policy. She will discuss the two “repeal and replace” bills, FDARA, and significant executive and regulatory actions taken by the Trump administration which directly impact ACA provisions.

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CMS updates Medicaid eligibility and payment oversight programs

CMS finalized changes to the Payment Error Rate Measurement (PERM) and Medicaid Eligibility Quality Control (MEQC) programs designed to improve payment oversight and state eligibility determinations in the Medicaid program. The changes—contained in an advance release of a Final rule set to publish in the Federal Register on July 5, 2017—implement provisions of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). The Final rule ends a pilot phase for the two programs and resumes the eligibility measurement component of the PERM program and the MEQC program for Fiscal Year (FY) 2019.

PERM

The PERM program measures improper payments in Medicaid and the Children’s Health Insurance Program (CHIP) based on reviews of the fee-for-service (FFS), managed care, and eligibility components of Medicaid and CHIP. Due to changes in Medicaid eligibility law—including expansion under the ACA—CMS did not conduct the eligibility measurement component of the PERM program for FYs 2015 through 2018 (see CMS proposes updates to Medicaid eligibility and payment oversight, June 21, 2016). During that time, CMS conducted a pilot program known as the Medicaid and CHIP Eligibility Review Pilots to maintain oversight of state eligibility determinations. In addition to reestablishing the eligibility measurement component of the PERM program for FY 2019, the Final rule makes several updates to program requirements. Changes to the program include:

  • eligibility reviews for payments made by states between July and June of a given year (a change from the previous October through September review period);
  • federal contractor review of determinations;
  • sampled reviews based upon FFS and managed care payments;
  • inclusion of federal improper payments when the federal share is incorrect, even if the total computed amount is accurate;
  • the development of a national sample size; and
  • payment reductions in cases where a state’s eligibility improper payment rate exceeds the 3 percent threshold and the state does not demonstrate a good faith effort to meet the threshold.

MEQC

The MEQC program requires states to report to HHS the ratio of erroneous excess medical assistance payments to total expenditures for medical assistance. Under Section 1903(u) of the Social Security Act (SSA), HHS is required to withhold payments in excess of a 3 percent threshold for eligibility-related improper payments. Like the PERM program, CMS did not operate the MEQC program for FY 2015 through 2018 so that CMS could make updates to the program to reflect changes in eligibility. The Final rule aims to restructure the MEQC program to better compliment the PERM program. The changes include:

  • state flexibility to design MEQC programs unless states have consecutive improper payment rates over the 3 percent threshold;
  • requirements to conduct reviews beyond the scope of the PERM program; and
  • corrective action submission requirement for identified errors.

Medicaid block grants would pose challenges for states

If federal support for Medicaid was transformed into a block grant to states, with a per capita cap set by Congress, the impact would vary widely on different states, according to participants in a webinar sponsored by the Alliance for Health Reform. The webinar also focused on the reauthorization of the Children’s Health Insurance Program (CHIP) and state Medicaid waiver requests. The American Health Care Act (H.R. 1628) would transform the federal part of Medicaid into a block grant to states starting in 2020, with a per capita cap on spending. Also, it would roll back the enhanced federal spending for adult Medicaid beneficiaries newly eligible under the Affordable Care Act. (The legislation, which passed the House on May 4, has not yet been considered by the Senate.).

Current Medicaid challenges

Robin Rudowitz, associate director at the Kaiser Family Foundation, noted that certain states are at higher risk if federal funding for Medicaid is transformed into block grants with per capita caps. These states have challenging demographics, including higher populations of people with poor health status, high cost health markets, and limited ability to raise tax revenues. Tony Leys, a reporter with the Des Moines Register, noted that state Medicaid programs already struggle to cover expensive blockbuster drugs, such as those for treating hepatitis C. If the federal Medicaid payment was capped, Leys said, states would struggle to pay for the next blockbuster drug that comes along.

Per capita caps 

Chris Pope, senior fellow at the Manhattan Institute, noted that per capita caps do nothing to prevent future expansions of benefits or eligibility by future Congresses, and may be preferable to the long-term health of the Medicaid program rather than “letting the program continue on autopilot without any real scrutiny.” Hemi Tewarson, program director for the National Governors Association Center for Best Practices’ Health Division, noted, however, that because of the way most states have to prepare their annual budgets “if we were to introduce every year uncertainty around whether the per capita caps would be raised or lowered…that would throw a lot of chaos into state operations, not just impacting health care, but all the their programs they have to make decisions on.”

Pope said that it’s a political decision for states to maintain coverage for Medicaid enrollees if expansion funding from the federal government is rolled back. He added, “There is a substantial overlap between the Medicaid expansion population and the population that would be eligible for substantial subsidies at the bottom of the income distribution covered by the exchange.” These are people who would be eligible for basic insurance plans with capped out-of-pocket spending.

Leys noted that in Iowa, this would be difficult because the state is about to lose its last participating insurer in the Exchange. In addition, Rudowitz said that after the per capita caps would go into place in 2020, the restriction of growth in federal spending would compound over time, putting Medicaid beneficiaries in the higher risk states noted above at greater risk of losing any insurance coverage. Tewarson agreed, noting that for some states disenrollment would be necessary over time as the restriction in federal spending grows.

CHIP reauthorization

The transformation of Medicaid into a federal block grant is not a sure thing, but the deadline for reauthorizing CHIP is. Congress has to regularly reauthorize CHIP, which provides enhanced federal funding to states who offer expanded Medicaid coverage for children; the program is currently extended only until September 30, 2017. Tewarson noted that as states prepare their 2018 budgets, some are planning on the enhanced match being renewed, while others plan on it going away, in which case states have to budget reserves to make up for the lost matching funds. Rudowitz also noted that the continuation of CHIP is a coverage issue; if the program is not reauthorized or the enhanced funding is cut back, states will have to make decisions about coverage and contact beneficiaries in a timely manner.

Medicaid waivers

States have been able to request waivers from federal Medicaid requirements for years; waivers are used by states for demonstration programs related to delivery system reforms, long-term care, behavioral health, among other things. As of February 2017, 33 states have 41 approved Medicaid waivers in place. Since President Trump was inaugurated, states have submitted waivers that would require certain Medicaid beneficiaries to be employed, although none of these waivers have been approved.

Tewarson noted that one of the big question states have regarding waivers is the administrative aspect—”how do you operationalize them?” In considering work requirement waivers, the administrative issues get bigger, she said. “How do we connect systems? What are the real outcomes we want to see from this? How do we define work requirements and who would be exempt?” She also noted that while the Obama administration approved many Medicaid waivers, they had guideposts as to what would or would not be acceptable; work requirements were not one of the acceptable waiver options previously.

ACA’s Medicaid expansion helped hospitals get paid $6B more

Hospitals in states that expanded Medicaid under the ACA saw large reductions in uncompensated care between 2013 and 2015, realizing estimated savings of $6.2 billion. Overall, those states’ uncompensated care burdens fell from 3.9 percent of operating costs to 2.3 percent, according to an issue brief from the Commonwealth Fund, which analyzed Medicare Hospital Cost Reports from 2011 to 2015.

Section 2001 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) expanded Medicaid eligibility to nonelderly adults with incomes up to 138 percent of the federal poverty level (FPL). In National Federation of Independent Business v. Sebelius (2012), the Supreme Court held that states could not be required to expand Medicaid eligibility, essentially allowing states to choose whether to expand their programs. One of the purposes of the ACA’s Medicaid expansion was to reduce uncompensated care—that is, a hospital’s losses on charity care and bad debt.

The researchers compared hospital uncompensated care burdens and found a marked decline in uncompensated care costs for hospitals in states that expanded Medicaid between 2013 and 2014, and continuing into 2015. There was no similar decline in nonexpansion states. The results were found across hospitals with both high and low levels of uncompensated care prior to 2014, though hospitals with the highest levels of uncompensated care saw the largest benefit from Medicaid expansion. The researchers therefore concluded that Medicaid expansion met the ACA’s goal of reducing uncompensated care burdens for hospitals, and noted that if the 19 states that have not yet expanded Medicaid eligibility were to expand, those states would also save over $6 billion in uncompensated care costs.