Modify the Institutions for Mental Disease (IMDs) exclusion for capitation payments

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1 July 27, 2015 Centers for Medicare and Medicaid Services Department of Health and Human Services Attention: CMS-2390-P 7500 Security Boulevard Baltimore, MD SUBMITTED ELECTRONICALLY Re: CMS-2390-P: Medicaid and Children's Health Insurance Program (CHIP) Programs: Medicaid Managed Care, CHIP Delivered in Managed Care, Medicaid and CHIP Comprehensive Quality Strategies, and Revisions related to Third Party Liability To Whom It May Concern: On behalf of Trust for America s Health (TFAH), we are grateful for the opportunity to comment on the Centers for Medicare and Medicaid Services (CMS) proposed rule concerning Medicaid and CHIP Managed Care. TFAH is a non-profit, non-partisan organization dedicated to saving lives by protecting the health of every community and working to make disease prevention a national priority. We believe that this update to the rules governing Managed Care in Medicaid and CHIP will more effectively align these programs with the health care system s important and growing focuses on prevention, protection, and communities. Medicaid Managed Care Organizations (MCOs) are an important provider of preventive services, mental health services, and other forms of health care. It is important that as more Medicaid beneficiaries receive their care from MCOs (approximately 70 percent and growing 1 ), there are appropriate and effective rules to govern these services. Accordingly, we are encouraged that CMS has taken this opportunity to strengthen MCOs abilities to deliver vital public health services with this proposed rule. Modify the Institutions for Mental Disease (IMDs) exclusion for capitation payments We strongly support the proposal to modify the IMD exclusion to permit MCOs and PIHPs to receive capitation payments from the state for enrollees who spend a portion of the month for which the state makes a capitation payment as patients in an IMD ( 438.3u). As we have argued in past analyses critiquing the IMD exclusion, 2 it is essential that the full array of mental health care services is available to Medicaid recipients. 1 Centers for Medicare & Medicaid Services. (2015). Managed care. Retrieved from care- 2 Trust for America's Health. Whole Health Campaign Policy Brief: Financing Health Care Reform. Washington, D.C.: Trust for America's Health, Print.

2 Access to treatment in IMDs is particularly important for Medicaid recipients because of the disproportionate burden mental illness has on the Medicaid population. Medicaid recipients report greater prevalence of serious mental illness and mental illness generally than their uninsured or privately insured counterparts. 3 Inability to pay is the greatest barrier to treatment for adults with serious mental illnesses or general mental illness who reported unmet mental health needs. 4 Allowing capitation payments for treatment in IMDs simultaneously addresses the disproportionate impact of mental illness on the population of individuals receiving Medicaid as well as the inability of many with mental illness to afford the treatment they need. Accordingly, we hope that this policy will appear in the final rule. However, we have concerns that the proposed provision that would limit payment to services to enrollees in an IMD to 15 days per calendar month may or may not be appropriate based on the clinical needs of beneficiaries. In particular, those patients undergoing treatment for a substance use disorder (SUD) may require care beyond 15 days, as compared to patients with severe psychiatric needs as was the case in the Emergency Psychiatric Demonstration on which this proposed policy is based. We respectfully refer you to comments submitted by the Coalition for Whole Health that more thoroughly explain our concerns and urge you to revise the 15 day limit in favor of a standard that adapts to the time-standard that is clinically appropriate based on the needs of a patient. Standardize the Medical Loss Ratio (MLR) We support standardizing Medical Loss Ratio (MLR) calculations and increasing the minimum required MLR to 85 percent ( 438.8). Standardizing the MLR calculation can help in achieving some level of nationwide parity in the services Medicaid MCOs can and will provide enrollees. Setting the minimum MLR at 85 percent will, as CMS has noted, prevent unnecessarily high capitation rates that hurt enrollees as well as inappropriately low capitation rates that hinder the activities of MCOs. Further, in standardizing the MLR calculation, the proposed rule includes activities that improve health care quality (further defined in 45 CFR to include activities to [i]mplement, promote, and increase wellness and health ) among those expenditures that count toward the minimum 85 percent of capitation payments an MCO receives. We are strongly supportive of this clarification in that it should encourage MCOs to invest in disease prevention, health promotion and other public health interventions. However, other existing regulations could hamper the ability of MCOs to provide preventive and/or public health services. Existing US Code 45 CFR allows activities that improve health care quality to count in the MLR numerator only if no additional costs are incurred due to the non-[medicaid] enrollees. This presents a challenge for MCOs undertaking 3 Substance Abuse and Mental Health Services Administration. (2014). Results from the 2013 national survey on drug use and health: Mental health findings. HHS Publication No. (SMA) Rockville, MD: Substance Abuse and Mental Health Services Administration. 4 Id. 2

3 broader public health initiatives that aim to improve the health of whole communities, not just those served by the MCO. Even if an MCO wants to try to focus on its enrollees, meeting this requirement could necessitate checking eligibility or narrowing the initiative s audience in a way that is ineffective for a public health program. Therefore, we urge CMS to consider creating a threshold at which Medicaid MCOs could conduct general population health improvement activities without overly burdensome accounting requirements to comply with Specifically, we would recommend that CMS consider a standard based on the proportion of individuals who are eligible for Medicaid in the community targeted by the public health initiative. Invest excess capitation payments in public health when minimum MLR <85% The proposed rule stipulates that when MCOs do not meet the minimum 85 percent MLR, states have two options: they may allow the MCOs to keep the extra money and receive a lower capitation rate in the next year, or they may take back the excess payment and return the federal share to the federal government. There is also a third option that Dr. Joshua M. Sharfstein from the Johns Hopkins Bloomberg School of Public Health proposed in JAMA: let states keep this excess money they collect from MCOs to invest in public health initiatives approved by the Innovation Center in coordination with the Centers for Disease Control and Prevention (CDC). 5 We agree that providing states with an opportunity to invest this capital into public health initiatives would be mutually beneficial for all stakeholders. State and federal governments could avoid complicated collection procedures to return the federal share of excess capitation payments to the federal government, and the public would gain access to more resources to improve general health and save lives. We are hopeful that CMS will consider including this innovative proposal as an option for excess capitation payments. Support care coordination and continuity of care We support the proposed rule s increased emphasis on coordination among care settings as well as with community supports ( ). Such a policy encourages financing systems that reward coordination of care and chronic disease management, both of which are vital for disease prevention and public health. The care integration discussed in this proposed rule (e.g. needs assessments within 90 days of enrollment, identification of enrollees with special healthcare needs, consultation between various care settings, and sharing patient health records and assessments) strengthens the comprehensiveness of Medicaid Managed Care and thus has the ability to improve enrollee health. The proposed rule asks, specifically, for respondents comments about including an additional standard relating to community or social support services. Oregon, viewed by many as an exemplar among states in effectively coordinating care through Managed Care Organizations, has several examples of language for these types of standards. In the Oregon Health Plan (MCO and CCO) Administrative Rulebook, the state stipulates that care organizations should be able to 5 Sharfstein, J. (2015, June 24). JAMA Forum: Loose Change for Population Health. Retrieved July 10, 2015, from 3

4 establish and maintain working relationships with local or allied agencies, community emergency services agencies, and local providers. 6 Care organizations demonstrate care coordination through the processes and capacity for referral to community and social support services, such as patient and family education, health promotion and prevention, and selfmanagement support efforts, including available community resources. 7 This includes the ability to [w]ork across provider networks to develop partnerships, [c]ommunicate integration and coordination policies and procedures to participating providers, regularly monitor providers compliance and take any corrective action necessary to ensure compliance. 8 We recommend that CMS include this language, or similar language, in the final proposed rule. Support state-by-state development of network adequacy standards We support the proposed rule in the establishment of standards for states to follow in the development of Medicaid managed care network adequacy standards ( ). What one considers an adequate network in Washington, D.C. is different from what one considers an adequate network in rural Wyoming. Like the network adequacy standards for Marketplaces and qualified health plans, it is appropriate for states to establish Managed Care network adequacy standards on a state-by-state basis based on their own unique population needs. Nevertheless, the proposed rule s policy of requiring each state to, at a minimum, develop time and distance standards for a variety of different healthcare provider types will help ensure those receiving Medicaid or CHIP through Managed Care Organizations access to these services. We further urge CMS to adopt strong standards in Medicaid and CHIP that include timely access to SUD providers, children s hospitals, and a full range of pediatric providers. Because access to healthcare is a fundamental component of public health and prevention, we support the proposed rule s network adequacy requirement for states. Support strengthening formulary requirements Formulary access and transparency are important public health and prevention issues, in part because of the high cost of drugs for serious conditions like HIV and Hepatitis C. We support strengthening formulary requirements for plans that cover outpatient drugs, and request two clarifications. Specifically, we believe it is important to require plans to clearly provide formulary information that includes not only tiers, but also cost sharing information, and to make such information publicly available on a real-time basis. In addition, we ask that CMS clarify how it will enforce patients rights to access nonformulary medications when needed. State Review and Approval of MCOs, PIHPs, and PAHPs Finally, TFAH supports the plan in the proposed rule to develop accreditation standards for MCOs, PIHPs, and PAHPs that contract with states to serve Medicaid populations ( ). In particularly, we believe it is important these standards emphasize prevention to further protect and promote public health, and we look forward to the opportunity to comment on the precise 6 Oregon Health Plan (MCO and CCO) Administrative Rulebook, pg Oregon Health Plan (MCO and CCO) Administrative Rulebook, pg Oregon Health Plan (MCO and CCO) Administrative Rulebook, pg

5 nature of these standards in the future whether in CMS listening sessions, town halls, or during future regulatory comment periods. Conclusion Thank you for your consideration of these comments. We look forward to the release of the final rule, which we believe has considerable potential to improve the nation s health. If you have any questions, please feel free to contact Jack Rayburn, TFAH s Senior Government Relations Manager, at (202) x 28 or jrayburn@tfah.org. Sincerely, Jeffrey Levi, PhD Executive Director 5