Plugged Into Health @ Hinman Straub – July 23, 2018

Committee Meeting of the Public Health and Health Planning Council

On July 19, the Public Health and Health Planning Council (“PHHPC”) Committee on Establishment and Project Review (“EPRC”) met in Albany. A copy of the agenda can be found here.

At the meeting, the EPRC had a number of contentious applications. For example, the first item on the agenda, an application submitted by OMNI Surgery Center for the conversion of the single specialty ambulatory surgery center to a multi-specialty ambulatory surgery center was not recommended for approval. The application was opposed by representatives of Mohawk Valley Health System (“MVHS”). MVHS objected to the application on the basis that OMNI has only been operating as a single specialty pain management center for two years, and an approval to convert to a multispecialty center before the expiration of their initial 5-year limited life would represent a break in their initial limited life “covenant”. MVHS also objected to the application because it would disrupt projects already being undertaken by the system, and accused the applicant of approaching MVHS physicians to join their center.

Some members of the EPRC expressed concern that OMNI may not have been genuine in their initial single specialty limited life application, and were instead attempting a “bait-and-switch” tactic to achieve the multi-specialty status. They noted that there was no apparent need for OMNI to convert to a multi-specialty center. Representatives from OMNI Surgery Center claimed that the expansion would improve their ability to meet Medicaid and charity care goals, evidenced by letters of support from several local health care providers serving low-income individuals. Other members of the EPRC noted that approval of OMNI’s expansion would provide local health care providers and physicians with a meaningful choice to remain independent, as the merger of two hospital systems in the area have somewhat limited physician practice opportunities. While the EPRC failed to achieve the requisite votes to approve the application, a subsequent motion to affirmatively disapprove the application also failed. The application will move to the full Council without a recommendation.

The EPRC also disapproved a nursing home change of ownership application by Leroy Operating LLC d/b/a Leroy Village Green Nursing and Rehabilitation Center. Several members of the EPRC expressed concern over the character and competence of the applicant, given low CMS star ratings at other facilities operated by the applicant. The applicant explained that the low CMS star ratings, particularly related to staffing levels, were due to an error in reporting on behalf of the administration, which has been corrected. The EPRC, nonetheless, elected to recommend disapproval of the application.

The EPRC elected to approve the remainder of applications on the EPRC agenda.

The next PHHPC meeting is scheduled for Thursday, August 2, 2018 in Albany.

VBP Updates

SDH & CBO Contract Template

The Department of Health recently finalized the SDH & CBO contract template that is required for reporting Social Determinants of Health (SDH) and Community Based Organization information associated with Level 2 or 3 Medicaid Managed Care VBP contracts.

Among other things, the template requires MCOs to provide a description of the SDH intervention; the name(s) of entities implementing the SDH intervention(s); the need assessment for the intervention; a description of how the intervention will be evaluated; an overview of the required funding advance provided to the VBP contract provider or CBO, and the intent of the funding; how utilization of funds will be reported to the MCO; the name of the tier 1 CBO involved, and what services they provide.

The SDH & CBO Contract template must be submitted along with the VBP Contract. Each template will be reviewed by the Bureau of Social Determinants of Health for consistency with the VBP Roadmap’s requirements relating to SDHs & CBOs.

VBP Webinar for Community Based Organizations

On Wednesday, July 11, DOH held a webinar on VBP for Community Based Organizations. The webinar highlighted VBP progress to date, myths and facts about VBP, contracting strategies, and how to develop a value proposition. A more formal Q&A document summarizing questions and answers that followed the webinar will be posted shortly.

DOH re-confirmed that to be a Tier 1 CBO, the entity must be a “non-Medicaid billing” entity. Based on comments on the webinar, DOH appears to be interpreting “Medicaid billing” as Medicaid FFS billing, as they indicated a CBO contract with an MCO would not make that CBO a Medicaid-billing entity for purposes of determining its tier. DOH also confirmed that there can be multiple CBOs within a single arrangement, and that it would satisfy the “Tier 1” CBO requirement for an MCO or VBP contractor to contract with a Tier 3 or Tier 2 CBO, that then subcontracts with a Tier 1 CBO.

Year 3 VBP Roadmap Approved by CMS

The Centers for Medicare and Medicaid Services (“CMS”) has approved the third annual update of the New York State VBP Roadmap.

Highlights from the recently approved version of the VBP Roadmap include:

Design for the Programs of All-Inclusive Care for the Elderly (“PACE”) program
Guidance related to use of quality measures for VBP
An emphasis on the role of Community Based Organizations (“CBOs”) and social determinants of health interventions while ensuring that interventions fall within 5 key social determinants domains.

The year 3 VBP roadmap is available on the VBP website under the ‘VBP Roadmap’ tab here.

DOH Designates Second VBP Innovator

The Department of Health has announced that NYU Langone Independent Practice Association (“IPA”) has been designated as an Innovator under Medicaid’s VBP Roadmap. NYU Langone IPA is the second organization to be designated as an Innovator by the Department joining Montefiore (“MACO-IPA”) which was designated earlier this year.

The NYU Langone Innovator network will include the facilities and providers of NYU Langone Health including Tisch Hospital, Rusk Rehabilitation, NYU Langone Orthopedic Hospital, NYU Langone Hospital—Brooklyn and the newly opened Hassenfeld Children’s Hospital at NYU Langone. The Innovator network will also work with community-based organizations to help address social determinants of health such as housing and nutrition. The NYU Langone Innovator network estimates it will care for 67,000 Medicaid members primarily in Brooklyn in its first year.

Last February, the Department designated Montefiore ACO-IPA as a VBP Innovator. MACO-IPA is a network comprising 11 hospitals including a children’s hospital and a rehabilitation hospital, as well as mental health and substance abuse clinics, dental clinics, imaging centers, surgical and specialty centers and a free-standing emergency room. An estimated 115,000 Medicaid patients will receive care through this network.

More information about the Innovator program can be found on the VBP website under the ‘VBP Innovator Program’ tab here.

New VBP-U Semester Announced

The Department of Health has announced that it will be continuing the Value Based Payment-U (“VBP-U”) program for a second year. VBP-U is an online, educational resource created to raise awareness, knowledge and expertise in the move to Value Based Payment. Year two of the VBP-U program is being dubbed by the Department as “VBP-U: Sophomore Year.”

VBP-U: Sophomore Year, Semester One is designed to serve as a deeper dive into VBP fundamentals. This semester’s curriculum includes summary documents from the Fall 2017 VBP Bootcamps, information on the Medicare Access & Children´s Health Insurance Reauthorization Act (“MACRA”), guidance documents for Chief Medical Officers (“CMOs”), and guidance documents for addressing social determinants of health through VBP.

In the coming months, the Department will be releasing additional semesters of VBP-U followed by a VBP bootcamp in the fall. The tentative schedule of release is as follows:

Semester 1	July 2018
Semester 2	August 2018
Semester 3	September 2018
Semester 4**	September 2018**

VBP-U Sophomore Year, Semester 1 content can be found here.

New VBP Pilots Lessons Learned Webinar

The Department will be hosting a second installment in a series of Lessons Learned webinars from the VBP Pilot program on Wednesday, July 25 from 2:00 p.m. to 3:00 p.m. The webinar will focus on data sharing and interoperability. VBP Pilot participant, Greater Buffalo United Accountable Care Organization (GBUACO), will share their data sharing experience in the VBP Pilot program.

GBUACO Representatives will address the following topics:

Utilization of internal and/or external data sources;
Technological lessons learned, and;
Overcoming gaps in data.

To register for the webinar, click here.

Managed Care Policy and Planning Meeting

The Department of Health recently held the monthly Policy and Planning Meeting with the State’s Medicaid Managed Care plans. Andrew Segal, the Director of the Division of Long Term Care, announced that he is leaving DOH, and the meeting will be his last as the Director of DLTC. No replacement has been named. Other highlights from the meeting include:

Mainstream Enrollment: Statewide enrollment for June was 4,426,720, a decrease of 1,110 members since May (4,427,830). The decrease occurred entirely within Upstate, with the State reporting 1,829,725 members compared to 1,832,025 in May (a decrease of .13%). Enrollment in NYC increased .05% for the month, climbing from 2,595,805 in May to 2,596,995 in June. The overall Statewide decrease from May to June was -.03%, the second consecutive month of modest decline, after enrollment through the month of May was reported to be .01% less than April.
Provider Enrollment: DOH reminded plans that they should not initiate provider terminations due to failure to enroll in Medicaid FFS. DOH is now also instructing plans to not initiate terminations when providers have opted out of the contract amendment requiring they enroll in Medicaid FFS until further notice. CMS is expected to issue further guidance on this in the next few months.
HARP Passive Enrollment: 23,806 passive enrollment letters were sent to HARP eligible individuals in mainstream plans on June 9, 2018. Only 567 of these notices were returned as undeliverable. Because of the high success rate of the mailings, the State expects more than 23,000 individuals will be passively enrolled into HARP. Passive enrollment will be reflected in new enrollment transactions beginning August 1. There was no new update on Statewide HARP enrollment. At last month’s meeting, OMH announced that Statewide HARP enrollment with capitation paid as of June 1, 2018 was 110,962, with 57,836 in NYC and 49,029 ROS.
MLTC Enrollment: Now at 229,925, an increase of 2,505 from last month (227,420) and 5,295 just two months prior, as MLTC enrollment continues to outpace projected enrollment. Virtually all new enrollment continues to be in the partially capitated program, which has 208,629 members compared to 206,438 one month ago and 204,025 two months prior. Enrollment increases also continued in MAP (10,803 vs. 10,489 and FIDA IDD (941 vs. 888); however, both PACE (5,657 vs. 5,678) and FIDA experienced declining enrollment (3,895 vs. 3,927). Twenty-nine (29) plans are operating in the MLTC partial cap program, compared to nine in MAP, eight in PACE, 10 in FIDA, and 1 in FIDA IDD.
FIDA: No information was provided on the future of the integrated care product. Plan associations have submitted comments about what they would like the program to include.
Community First Choice Option (CFCO): The start of CFCO for skill acquisition, maintenance, and enhancement is to January 1, 2019. DOH has been working with stakeholders on finalizing guidance for the carve-in.
Assisted Living Program (ALP) Carve-in: DOH said they are aware that key dates have slipped for the State to meet the October 1, 2018 carve-in.
Social Adult Day Care (SADC) Efficiency Adjustment: DOH expects to release additional guidance in August.
Limit MLTC Nursing Home Permanent Placement Benefit to Three Months (Nursing Home Carve-out of MLTC): CMS has yet to approve this benefit change.
MLTC VBP: The updated Roadmap and design for Level 2 VBP has been sent to CMS. The MLTC VBPTR was due back to DOH July 15.
Fiscal Intermediary Advertising Review and Approval: DOH said some FI applications for authorization either are “close to being approved” or “have been approved”. Once authorizations have been approved, the State will begin keeping a list of approved and disapproved FIs. At this time, Plans are only required to terminate disapproved FIs.

April 2018 Medicaid Global Cap Reports

The April 2018 Global Cap Report was recently posted on the on the Medicaid Redesign Team (MRT) website. The 2018 state budget extended the Global Spending Cap through March 2019. Pursuant to legislation, the Global Spending Cap has increased from $19.5 billion in FY 2017 to $20.8 billion (including the Essential Program) in FY 2018, an increase of 6.7 percent.

Total State Medicaid expenditures under the Medical Global Spending Cap for FY 2018 through April resulted in total expenditures of $1.855 billion, which was $8 million above the $1.847 billion target.

Medicaid spending in major Managed Care categories was $10 million under projections. Mainstream Medicaid Managed Care was $7 million over projections through April. Long Term Managed Care spending was $17 million under projections. Medicaid spending in major fee‐for‐service categories was $23 million (3.6%) over projections.

LHCSA Need Methodology RFI Released

The Department of Health is in the process of developing a public need methodology for the licensure of Licensed Home Care Services Agencies (“LHCSAs”). The new public need methodology will ensure adequate supply of LHCSAs are available and accessible, while avoiding the proliferation of unneeded agencies.

To this end, the Department has released a Request for Information (“RFI”) document that should be completed by interested parties. The RFI seeks recommendations for planning area designations, factors to include in the methodology, exceptions to the methodology, and additional requirements or priority considerations to include.

Completed RFIs should be sent to [email protected] with the Subject: LHCSA RFI, no later than October 12, 2018.

CMS Proposes Regulations Eliminating Third-Party Medicaid Provider Payments

The Centers for Medicare & Medicaid Services (“CMS”) have proposed changes to the Medicaid Provider Reassignment regulation that would eliminate the state’s ability to divert Medicaid payments away from providers, with the exception of payment arrangements explicitly authorized by statute.

Section 1902(a)(32) of the Social Security Act generally prohibits States from making payments for Medicaid services to anyone but the provider. The statute provides only a few specific exceptions to this requirement, such as withholding payment due to a court order for wage garnishments, child support orders, or judgments for monies that are owed to the state.

In 2014, CMS revised the regulation to allow practitioners for which the Medicaid program is the primary source of service revenue to make Medicaid payments to a third party on behalf of the individual practitioner for benefits such as health insurance, skills training and other benefits customary for employees. This new regulatory exception authorized a state to divert part of the Medicaid payment to third parties that could then be used to fund other costs on behalf of the provider. This regulation primarily impacted independent in-home personal care workers.

After further review, CMS has determined that the exception created by the 2014 rule is not consistent with the statute, may have resulted in provider payments being diverted in ways that do not comport with the law, and, in some cases, may have occurred without the express knowledge of the provider.

As a result, New York State would no longer be authorized to facilitate Medicaid payments to independent in-home personal care worker employers to fund benefits such as health insurance, skills training and other employee benefits.

CMS is accepting comments on the proposed regulation until Monday, August 13, 2018. Comments may be submitted electronically, or by mail to; Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2413-P, P.O. Box 8016, Baltimore, MD 21244-8016.

Department of Health Issues Report On Legalized Recreational Marijuana

The Department of Health has released a report assessing the potential impact of regulated marijuana in New York. The report finds that “[t]he positive effects of regulating an adult (21 and over) marijuana market in NYS outweigh the potential negative impacts.”

The report recommends that “harm reduction principles can and should be incorporated into a regulated marijuana program to help ensure consumer and industry safety,” and states that “legalization of marijuana will address an important social justice issue by reducing disproportionate criminalization and incarceration of certain racial and ethnic minority communities.” It also addresses a number of other issues, including public education about the potential harms associated with marijuana use and public safety impacts.

The report estimates there would be 1.29 million consumers of marijuana in New York if a recreational system were legalized. Depending on the tax rate, the report estimates that recreational marijuana could generate between $248.1 million and $677.7 million in state and local revenue during the first year of implementation.

The report now goes to the Governor for his review. The legalization of marijuana in New York would require action by the state Legislature.

Health Home Update

Children’s Medicaid Health and Behavioral Health System Transformation Update

The Department has published the second issue of the Children’s Medicaid Health and Behavioral Health System Transformation Update. The Update covers transformation materials, the children’s transition timeline, and trainings around the state. To view the update, click here.

Adult BH HCBS and Recovery Coordination

NYS has released “Guidance on Documentation and Claiming for Recovery Coordination of Adult Behavioral Health (BH) Home and Community-Based Services (HCBS)” pertaining to the already issued “Policy for Improving Access to Adult Behavioral Health Home and Community Based Services (BH HCBS) for HARP and HARP -Eligible HIV Special Needs Plan Members Not Enrolled in Health Home”.

This guidance document is intended for Health and Recovery Plans, HIV/SNPs, and ONLY State Designated Entities contracted with these Plans, also known as Recovery Coordination Agencies (“RCAs”). It provides guidance on documentation and claiming requirements to support the accurate administration and reimbursement of Recovery Coordination services.

Regulatory Updates

Department of Health

Hospital Policies and Procedures for Individuals with Substance Use Disorders

The Department recently issued a notice of adopted rulemaking that implements statutory requirements that require general hospitals to establish policies and procedures for the identification, assessment and referral of individuals with or at risk of substance use disorders and to train staff in those policies and procedures. The adopted regulation requires hospitals to:

provide individuals who have or appear to have substance use disorders with educational materials, to be developed by OASAS in consultation with DOH, as part of discharge planning;
establish written policies and procedures for the identification and assessment (using an evidence-based approach) as well as the referral of individuals who have or appear to have substance use disorders;
train licensed and certified staff in such policies and procedures;
refer individuals in need of substance use disorder services to appropriate programs and coordinate with such programs; and
inform individuals who have or appear to have substance use disorders of treatment services that may be available, which can be accomplished verbally and/or in writing as appropriate.

The regulation, as adopted, contains no changes from the proposed regulation that was published in the January 10, 2018 edition of the NYS Register.

Department of Financial Service

Minimum Standards for Form, Content and Sale of Health Insurance, Including Standards of Full and Fair Disclosure

The Department of Financial Services recently issued a notice of emergency/revised proposed rulemaking that would require every small and large group and individual accident and health insurance policy or contract (other than a grandfathered health plan) that provides hospital, surgical, or medical expense coverage and every student accident and health insurance policy or contract provide coverage of at least the enumerated 10 categories of Essential Health Benefits (“EHBs”) if the EHB provisions in 42 U.S.C. § 18022 and 45 C.F.R. 156.100 et seq. are no longer in effect or are modified as determined by the Superintendent.

The Department has continued to adopt these regulations on an emergency basis to mitigate the impact of any Affordable Care Act (“ACA”) repeal and replace efforts enacted on the federal level. The rulemaking would ensure that, if the Superintendent of DFS determines that EHB and anti-discrimination provisions (42 U.S.C. § 18022 and 45 C.F.R. 156.100 et seq.) included in the federal Affordable Care Act (“ACA”) are no longer in effect or are modified, these provisions will remain in place in NYS.

It is important to note that this emergency/revised proposed rulemaking differs in a number of ways from previous versions that have been promulgated since June 21, 2017.

The revisions carve large group accident and health insurance policies into the regulation. Previously, the regulation only applied to individual and small group policies.

The revisions also add three new categories of plans that DFS may select as the benchmark plan. These include:

An essential health benefit benchmark plan that another state used for the 2017 plan year;
Replacing one or more categories of essential health benefits in the New York Benchmark Plan used for the 2017 plan year with the same category or categories of essential health benefits from a benchmark plan that another state used for the 2017 plan year; or
Any other set of benefits that the superintendent selects that would become the New York Benchmark Plan.

Finally, the revisions also add sexual orientation, gender expression, and transgender status to the categories upon which a plan is prohibited from discriminating against.

This emergency rulemaking is effective as of June 21, 2018 and will expire on August 19, 2018.

Legislative Spotlight

Now that the 2018 Legislative session has adjourned, bills that have passed both houses of the Legislature will be delivered to the Governor in “batches” over the next several months. Once a bill has been delivered to the Governor, he has 10 days (excluding Sundays) to either sign the bill into law or veto the bill.

The following bills are currently on the Governor’s desk and must be acted upon before midnight on Tuesday, July 31, 2018:

8648/A.10673 (Hannon/Paulin): This bill would increase the Dormitory Authority of the State of New York (“DASNY”) authorization to issue hospital and nursing home project bonds and notes from $15.8 billion to $16.6 billion.
10813/S.8822 (Rodriguez/Hannon): This bill would extend Terence Cardinal Cooke Health Care Center’s eligibility to receive financing and construction services through the Dormitory Authority of the State of New York (“DASNY”) through December 31, 2023.
10468-B/S.8275-B (Ryan/Jacobs): This bill would authorize the Department of Health to reschedule a drug through regulatory action whenever such drug has been reclassified by the Federal Drug Administration (“FDA”). The Department of Health’s reclassification powers would be limited to reclassifying drugs to a new subdivision in the same numbered schedule or a higher numbered schedule than which to it is rescheduled by the FDA.

Upcoming Calendar

Thursday, August 2, 2018

Public Health and Health Planning Council

10:00 a.m.

Empire State Plaza, Concourse Level, Meeting Room 6, Albany, NY

Thursday, August 23, 2018

Public Hearing on the Conversion of Medical Liability Mutual Insurance Company

10:00 a.m.

Department of Financial Services, One State St., 6^th Fl., New York, NY