University of Toledo Medical Center Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

Targeted News Service

WASHINGTON, Feb. 8 -- Daniel Barbee, CEO of the University of Toledo Medical Center, Ohio, has issued a public comment on the Centers for Medicare and Medicaid Services' proposed rule entitled "Medicaid Program: Medicaid Fiscal Accountability Regulation". The comment was written on Jan. 31, 2020, and posted on Feb. 4, 2020:

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As a small, independent, high DSH hospital in northwest Ohio, The University of Toledo Medical Center thanks you for the opportunity to comment on the proposed rule, "Medicaid Program; Medicaid Fiscal Accountability Regulation" (CMS-2393-P).

Since 1 964, The University of Toledo Medical Center has been serving the health needs of the Toledo community. Established as a teaching hospital to train the future physicians and medical professionals of the greater Toledo region, UTMC remains dedicated to providing advanced care and healing in a patient-centered environment.

Each year, more than 300,000 people rely on The University of Toledo Medical Center to care for their health needs. In FY2019, UTMC served 41,483 Medicare patients; 3,551 Medicaid patients; 40,815 Medicaid Managed Care patients; 37,727 Medicare Managed Care patients; and 3,248 patients with no insurance.

Beginning in July of 2018, UTMC has been participating in Ohio's Care Innovation and Community Improvement Program (CICIP), an Upper Payment Limit (UPL) program that would be negatively impacted by the Medicaid Fiscal Accountability Regulation (MFAR) changes. The CICIP program has been vital to maintaining ongoing, high-quality care for the residents of our community and the continuous process of quality improvement that produces improved health outcomes over time.

We appreciation CMS efforts to address important Medicaid policy objectives and fiscal responsibility. However, we are concerned that some of the proposed changes could lead to unintended consequences for Medicaid beneficiaries and UTMC patients.

We are concerned that CMS is prematurely limiting Medicaid supplemental payments for physician and other practitioner services without having all the information available to evaluate the impacts on efficiency, economy, quality of care, and access. Changing longstanding CMS interpretations of allowable sources of intergovernmental transfers (IGTs) would effectively limit Medicaid supplemental payments and could also negatively impact access and quality of care. Charging ahead with these changes before completing an evaluation could lead a degradation in health outcomes for patients in northwest Ohio.

Oversight risk can also be greatly reduced by updating current CMS guidance on allowable supplemental payment methodologies for physician and other practitioner services provided to Medicaid beneficiaries. Updating current guidance instead of implementing a new regulation would help reduce the risk of disruption to Medicaid providers and beneficiaries, while still advancing the goals Medicaid fiscal accountability. Restricting states flexibility in setting upper payment limits for physician and other practitioner services could also lead a degradation in health outcomes for patients in northwest Ohio.

While the work of the Care Innovation and Community Improvement Program has expanded into to countless areas of our health system and community, the program's main focus has been divided into four main areas: Behavioral Health, ED Utilization, Labor & Delivery, and Opiate Prescribing. Through these four categories, we have been able to address many of the challenges facing our healthcare system and our community. We believe the efforts made possible through CICIP will be negatively impacted by the proposed caps on fee for service supplemental payments and the restrictions on IGT sources.

Below are UTMC's recommendations on how to strengthen the proposed rule while minimizing unintended consequences to Medicaid beneficiaries and UTMC patients --

Collect Data, Evaluate the Impact of Supplemental Payments on Access and Quality of Care

Consistent with Section 1902(a)(30)(A) of the Social Security Act, CMS should evaluate the impact of Medicaid practitioner supplemental payments to Medicaid beneficiaries -- especially on quality of care and access -- before limiting vital and long-standing Medicaid funding levels. The evaluation proposed under Section 447.302 should be completed before changes to Medicaid practitioner supplemental payments are made. We request that CMS remove the new proposed provisions at Section 447.406 until a thorough evaluation is completed.

Additionally, CMS is proposing changes to Section 433.51(b), which creates a new definition for state share participation. CMS states that it is revising this regulation to clearly limit the source of the intergovernmental transfers to state or local taxes or funds appropriated to state university teaching hospitals because other sources are "not permitted under the statute in section 1903(w)(6)(A) of the Act." We have concerns that this is a misunderstanding of the current statutory language. The fact that CMS cannot restrict these sources does not mean that the statute prohibits other sources of funds from being used as IGTs. In fact, CMS has repeatedly confirmed that other sources of funds can be used, so long as they are not derived from impermissible donations or taxes (72 Fed Reg. at 29766; 57 Fed Reg. at 55119). These proposed changes would have the effect of limiting supplemental payments that are currently being used to support access and quality of care for Medicaid beneficiaries.

We request that CMS revise its interpretation that the change is simply a clarification of existing policy, as the proposed changes to Section 433.51 are not an accurate reflection of the statutory language and runs contrary to prior CMS interpretations. We also request that CMS evaluate the impact of any change that would restrict the use of IGTs on access and quality of care for Medicaid beneficiaries.

To Reduce Oversight Risk, Modify Existing Guidance Rather than Create New Regulations

Rather than changing historic limits to Medicaid practitioner supplemental payments under Section 447.406, CMS should update its current fee-for-service guidance. Oversight risks can be addressed sooner through updates and be less disruptive to Medicaid beneficiaries. For example, the guidance could address proper weighting of commercial rates by utilization, practitioner types, and facility vs non-facility settings. Transparency can also be promoted faster through guidance updates, such as a requiring random sampling of the base commercial rates used in the upper payment limit models by requesting additional explanation of benefit documents (E0Bs) and using larger sample sizes. Together these updates (or similar updates) would allow for additional transparency of commercial payment data and standardization of ACR calculations, thereby reducing oversight risk.

CMS should also work with States to identify other parameters and best practices that should be added to the guidance. We recommend the guidance be updated and a new evaluation of oversight risk be conducted before eliminating, via new regulations, states ability to use average commercial rates as the upper payment limit.

Thank you for your consideration of these comments. We look forward to working with the agency to explore reasonable transparency measures to ensure accountability in Medicaid state financing and payment policies.

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=CMS-2019-0169-0001

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