Massachusetts Executive Office of Health & Human Services Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, May 25 -- Daniel Tsai, deputy secretary of the Massachusetts Executive Office of Health and Human Services, Boston, has issued a public comment on the Centers for Medicare and Medicaid Services proposed rule entitled "Medicaid Program: Preadmission Screening and Resident Review". The comment was written on May 20, 2020, and posted on May 21, 2020:

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On behalf of the Massachusetts Executive Office of Health and Human Services (EOHHS), I am writing to provide comments on the Proposed Rule on Medicaid Preadmission Screening and Resident Review (PASRR) (the Rule)./1

EOHHS is the largest Secretariat in Massachusetts, and with its constituent agencies provides services to some of the most vulnerable residents in the Commonwealth. Among other things, EOHHS is the single state agency responsible for the administration of the Commonwealth's Medicaid and Children's Health Insurance Program (CHIP) programs, collectively referred to as MassHealth, and also includes the Massachusetts Department of Mental Health and the Massachusetts Executive Office of Elder Affairs.

MassHealth provides comprehensive, affordable health care coverage for over 1.8 million low-income Massachusetts residents, including 40% of all Massachusetts children and 60% of all residents with disabilities. MassHealth's mission is to improve health outcomes among our diverse members and families across the Commonwealth by providing access to integrated health care services that sustainably and equitably promote health, well-being, independence, and quality of life.

The Department of Mental Health (DMH) assures and provides access to services and supports to meet the mental health needs of individuals of all ages; enabling them to live, work and participate in their communities. DMH operates across five geographic areas statewide, including 27 site offices, state-operated hospitals and community mental health centers, and a network of contracted and state-operated community services. This network provides services to approximately 29,000 people with persistent mental health conditions across the Commonwealth. In addition, DMH licenses or regulates private, county and municipal psychiatric facilities and programs providing care and treatment to persons with mental illness.

PASRR is an important tool to ensure that individuals seeking access to long-term care are provided services most appropriate for their needs in the least restrictive setting possible. The current federal PASRR regulations have not been revised in over 25 years and are significantly outdated in many respects. EOHHS appreciates CMS' efforts to update PASRR requirements in the federal code and supports both the goals of this Rule and many of the specific changes proposed.

Overall, the Rule grounds the regulations more closely in the statutory language, codifies guidance provided by CMS in the years since PASRR regulations were last updated, and provides clarity in areas that have caused confusion for states implementing the regulations. However, certain aspects of the Rule could be improved with further changes. Specifically, EOHHS requests further clarity on states' authority to enter into contracts or agreements to complete PASRR evaluations, as well as states' ability to enforce PASRR requirements with respect to non-MassHealth members. The Rule should also be further amended to remove unnecessary restrictions on the clinical decision-making process. Accordingly, EOHHS is recommending certain changes to the Rule, as described below.

Definition and Use of the Term "Mental Illness"

CMS requests comments on its use of the term "mental illness" in place of "mental disorder." EOHHS supports this change for the purposes of PASRR, as proposed by CMS in the Rule. The change better aligns the regulations with the PASRR authorizing statute and it is the terminology most often used in reference to PASRR. However, it is important to retain, as CMS does in the Rule, the use of the term "mental disorder" in reference to the Diagnostic and Statistical Manual of Mental Disorders 5th edition (DSM-5), as the disorder framework utilized by the DSM-5 supports a dimensional diagnostic approach that is respectful of gender, cultural, social, and familial norms.

Similarly, to be consistent with the DSM-5, EOHHS recommends striking from the definition of mental illness, in the proposed changes to 42 CFR 483.102(b)(1)(i), the use of the phrase "serious and persistent" before "disorder meeting the criteria specified within the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (2013)." The concept of serious and persistent mental illness is used frequently in the field. Despite this, the concept is not part of the DSM-5, has varied definitions in common use, and its use does not embrace basic tenants of recovery. It should be sufficient that the disorder meets one of the designated disorders specified in the DSM-5 with the severity of the illness noted as at least moderate or severe.

Further, EOHHS recommends the exclusion of additional types of conditions described in the DSM-5 for the purposes of PASRR so that the final language for 42 CFR 483.102(b)(1)(i) reads: "An individual has within the past year had a mental disorder meeting the criteria specified within the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (2013), incorporated by reference in paragraph (c) of this section, with the exception of the following conditions described in DSM-5: Neurocognitive disorders; substance use or substance/medication induced disorders; neurodevelopmental disorders; disorders of biological processes (sleep/wake disorders, elimination disorders, sexual dysfunctions); Impulse disorders; Paraphilic disorders and Personality disorders."

Clinical Decision-Making Flexibilities

Telehealth Evaluations

EOHHS appreciates the proposed change to 42 CFR 483.128(f), which allows the use of telehealth to facilitate in-person interviews required by 42 CFR 483.128(e)(10). Telehealth utilization during the COVID-19 pandemic has demonstrated that telehealth is an effective modality to provide needed services and complete necessary patient evaluations. In fact, EOHHS urges CMS to consider further reducing the limitations on telehealth PASRR evaluations in clinically appropriate circumstances. The Rule allows for telehealth evaluations "if conducting a face-to-face interview would, due to resource limitations, geographical distances, or other circumstances, prevent completion of the determination within the timeframe required..." (emphasis added). There are a number of circumstances in which telehealth would be more cost effective, less time consuming, and equally clinically appropriate as a face-to-face interview, but under which a timely face-to-face interview is not "prevented" entirely. EOHHS recommends adjusting the language to allow states the discretion to use it in all clinically appropriate situations, considering technological availability and patient willingness.

Level II Screening Timeframes

In addition, EOHHS requests that CMS reconsider the proposed convalescent care PASRR Level II screening deadline of 30 days after admission. Performing a Level II evaluation after only 30 days will result in unnecessary evaluations for individuals who are fully expected to be discharged within a reasonable amount of time, but whose convalescent needs will require a slightly longer recovery period due to the condition for which they were admitted. The current regulation does not have a set time limit, but MassHealth has established in its Medicaid State Plan a 75-day timeframe by which a Level II screening must be conducted for those who were admitted under convalescent care and still remain in the nursing facility after 75 days. This timeframe has proved useful in allowing residents in need of convalescent care to recover and be discharged in many instances without facing an unnecessary screening process. Allowing states to establish their own reasonable periods for convalescent care will conserve resources and spare the resident needless evaluations.

Definition of Emergency Stay

Similarly, EOHHS opposes the new definition of emergency stay proposed by CMS as it could have the effect of constraining clinical determinations. The new language limits an emergency stay to emergency evacuations and protective services placements. However, there may be other situations that necessitate an emergency stay other than evacuations or protective services placements. EOHHS believes this definition is too narrow, limits the ability to make decisions based on clinical appropriateness, and may cause delays in discharges from hospitals to nursing facilities on weekends, holidays, and nights.

Authority to Enter Agreements for PASRR Requirements

Out-of-State Transfer Agreements

EOHHS supports CMS' proposal to more clearly provide states the discretion to enter into agreements to ensure PASRR requirements are met for out-of-state resident transfers. However, by eliminating 42 CFR 483.110(b) (which states "A State may include arrangements for PASRR in its provider agreements with out-of-state facilities or reciprocal interstate agreements") the Rule could be construed as eliminating the authority to enter into such agreements. EOHHS recommends adjusting the language of 42 CFR 483.110(b), rather than removing it entirely. Specifically, EOHHS recommends the following language: "(b) Agreements. A State may, but is not required to, include arrangements for PASRR in its provider agreements with out-of-state facilities or reciprocal interstate agreements." This will make it clear to the states that had construed the existing provision as a mandate that it is merely permissive, without creating the opposite interpretation that such agreements are no longer allowed.

Contractual Relationships with the State Mental Health Agency

Additionally, EOHHS agrees that the statutory language within section 1919(b)(3(F)(i) of the Social Security Act requires meaningful separation between the state mental health authority (SMHA), charged with determining an individual's need for specialized services, and the entity evaluating the individual's physical and mental health for purposes of PASRR. However, the Rule would go further than the statutory language's required separation of the SMHA and the evaluating entity. The current statutory and regulatory language require that the PASRR evaluation be performed by a person or entity "other than" the SMHA while the Rule would require that the evaluation must be performed by a person or entity that is "independent from" the SMHA. The description of this change in the Rule's preamble notes that CMS will interpret this language to mean that "the entity performing the evaluation for people with [mental illness] cannot have a contractual relationship with the SMHA."

EOHHS believes this is an overly broad interpretation of the statutory language. A contractual relationship (or an interagency service agreement (ISA), if the evaluating entity is another state agency) may be an important tool to ensure that the evaluating entity is meeting its designated PASRR responsibilities. Further, EOHHS is concerned that this interpretation could preclude the SMHA from entering into other unrelated contracts with the evaluating entity. EOHHS therefore requests that this proposed change make clear that the goal is meaningful independence between the SMHA and the evaluating entity for the purposes of PASRR evaluations, rather than a complete prohibition on contractual or ISA relationships.

Additional Areas for Clarification

It is well-established that PASRR applies to all individuals who seek admission to or reside in a nursing facility, regardless of the source of payment for those nursing facility services. Under both the current regulations and the Rule, states may not claim federal financial participation on the costs of providing nursing facility services to a Medicaid enrollee when the facility has failed to comply with PASRR with respect to that member. Both the current regulations and the Rule, however, are silent with respect to the enforcement mechanisms available to state Medicaid agencies when nursing facilities fail to comply with PASRR for individuals who are not enrolled in Medicaid. EOHHS requests that CMS clarify this point.

Finally, EOHHS is concerned that the explicit right to appeal a Level I PASRR determination will cause delays in conducting Level II PASRR evaluations, which may ultimately delay an individual's admittance into a long-term care facility. EOHHS requests that CMS clarify how Level I appeals should be incorporated into the PASRR process.

Conclusion

EOHHS appreciates CMS' efforts to update and modernize the PASRR rules and urges CMS to consider the recommended changes and adjustments before finalizing the language. EOHHS welcomes the opportunity to engage with CMS about these specific concerns with the Rule.

Sincerely,

Daniel Tsai

Deputy Secretary of the Executive Office of Health and Human Services

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Footnote:

1/ https://www.govinfo.gov/content/pkg/FR-2020-02-20/pdf/2020-03081.pdf

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=CMS-2020-0015-0002

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