Weekly Roundup: August 19, 2022

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Federal Court Endorses Georgia Medicaid Work Requirements
Today, a Federal District Court Judge in Georgia, ruled that CMS must allow Georgia to implement its plan to narrowly expand Medicaid by imposing work or engagement requirements for those who wish to enroll.  In her decision, Judge Lisa Godbey Wood stated “CMS’s recission of the Georgia Pathways demonstration project was not reasoned – it was arbitrary and capricious on numerous, independent grounds.” Georgia argued that CMS decision to rescind the waiver violated the Administrative Procedure Act. As a reminder Georgia is one of 12 states that has not fully expanded Medicaid. Governor Brian Kemp (R-GA) proposed, early in his tenure as governor, to partially expand Medicaid, requiring those who sign up to work a minimum of 80 hours per month. The plan was approved at the last moment by the Trump Administration and was rescinded by the Biden Administration shortly thereafter, due in part to the work requirements of the waiver program, a requirement the Biden Administration believes is contrary to the purpose of the Medicaid program. This decision is notable as this case explicitly conflicts with a decision that came down by a federal appellate court in Washington, D.C. in 2020. The case, Gresham v. Azar, struck down Kentucky and Arkansas Medicaid waivers that included work requirements. CMS is likely to appeal this case to the Eleventh Circuit Court of Appeals, which leans conservatively. Many expect that the Eleventh Circuit will affirm this Judge’s decision, leading to what is called a “circuit split” where two federal appellate courts disagree on the law. As a result, the Supreme Court may eventually weigh in on the Medicaid work requirements issue in the next few years.
CMS Releases Guidance and Proposed Rule to Improve Health Care for Children
Yesterday, CMS released two informational bulletins and a proposed rule intended to expand access to comprehensive health care for children. The first bulletin reminds states of their obligation to provide medically necessary behavioral health services to children and youth under the requirements for the mandatory Medicaid Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit. CMS lists strategies that states can choose to employ to meet this requirement and the following Administration goals:
  • Improve prevention, early identification and engagement in treatment;
  • Increase access to treatment across the continuum of care;
  • Expand provider capacity; and
  • Increase integration of behavioral health and primary care.
The second bulletin highlights current policies and strategies that states should consider when developing programs to provide Medicaid services in schools for children and adolescents. These recommendations include ensuring students are appropriately enrolled in Medicaid or CHIP, funding school-based-services through managed care, utilizing telehealth, maintaining documentation and time studies, options for funding state share of services, among others. CMS also notes that they will also release an updated School-Based Services (SBS) payment and technical assistance guide in the coming months. The proposed rule requires states to annually report on the Core Set of Children’s Health Care Quality Measures, the Core Sets of Health Home Quality Measures, and the behavioral health measures from the Adult Health Care Quality Measures beginning in FFY 2024. CMS will provide annual guidance to the states on the technical requirements for reporting these measures, including phasing-in reporting across all Medicaid & CHIP populations and stratification by race, ethnicity, sex, age, rural/urban status, disability, language.
JAMA Features CMS Lessons in Primary Care Integration
Today, the Journal of the American Medical Association (JAMA) Health Forum published an article on “Addressing Challenges in Primary Care: Lessons to Guide Innovation.” In the Viewpoint article, CMS leaders Bruce Finke, MD, Kathryn Davidson, LCSW, and Purva Rawal, PhD discuss the lessons learned from the CMS Innovation Center’s tests of models to increase access to advanced, integrated primary care in communities. These lessons will help CMS in achieving its goal of having 100 percent of beneficiaries in traditional Medicare and most Medicaid beneficiaries in accountable care relationships with providers who are responsible for the quality and total cost of care by 2030. The Innovation Center’s review of the feedback and data from its tested models revealed five major lessons:
  1. Primary care practices can meaningfully change how they organize and deliver care
  2. Changes in quality and total cost of care are challenging to detect within a 5-year period
  3. Equity must be an explicit aim of primary care models
  4. Multipayer alignment is necessary to support advanced primary care
  5. Regional context matters for care transformation
The article outlines how these lessons will guide future primary care initiatives in Medicare.
Administration Action
  • On Tuesday, President Biden signed the Inflation Reduction Act of 2022 into law. Before signing the law, President Biden said that the American people won. The package aims to make sweeping changes to major parts of the U.S. economy, investing about $300 billion in climate and energy priorities, limiting prescription drug prices, and imposing a new minimum tax on large corporations. The legislation is also projected to reduce the federal deficit.
  • CDC Director Rochelle Walensky announced that the agency is launching an overhaul of its structure and operations in an attempt to modernize the agency and rehabilitate its reputation follow the criticism from the COVID-19 pandemic. CDC Director Rochelle Walensky laid out a series of changes with CDC leadership and staff designed to transform the organization and its work culture by improving how the agency shares information, develops public health guidance, and communicates with the public.
  • CMS released guidance outlining their plan to terminate many of the blanket waivers associated with the COVID-19 Public Health Emergency (PHE). Excluding certain telehealth and Medicare appeals flexibilities, all other COVID-19 blanket waivers that were not previously made permanent will terminate at the end of the PHE. Providers will again be expected to follow existing regulatory requirements and processes. To help providers prepare for this transition, CMS has developed fact sheets noting previously ended waivers, those that have been made permanent, and those that will end with the PHE.
Congressional Action 
  • Last week, Sen. Angus King (I-ME) and Rep. Mike Gallagher (R-WI) sent a letter to Secretary Becerra urging for stronger collective action against the increasing number of cyberattacks on the health sector. Sen. King and Rep. Gallagher are co-chairs of the Cyberspace Solarium Commission, and asked for a briefing on the status of the agency’s cybersecurity capabilities. Though pleased with recent administrative action to address the security threat, Sen. King and Rep. Gallagher noted the lack of robust and timely sharing of actionable threat information with industry partners and the need to dramatically scale up the Food and Drug Administration’s (FDA) Department of Critical Infrastructure Protection Division.
  • The U.S. Department of Health and Human Services (HHS), approved the extension of Medicaid and CHIP coverage for 12 months after pregnancy in Hawaii, Maryland, and Ohio. This extension will allow for up to 34,000 individuals to qualify for Medicaid and CHIP coverage for a full year after pregnancy. In combination with previously approved waiver extensions, an estimated 318,000 Americans annually in 21 states and D.C. are now eligible for 12 months of postpartum coverage under Medicaid and CHIP.
  • A coalition of transgender-rights organizations is preparing to sue Florida to stop the state’s Medicaid regulator from banning coverage of gender-affirming treatments. Florida’s Medicaid regulator, the Agency for Health Care Administration, finalized rules last week and goes into effect on Sunday that prohibit Medicaid from covering treatments such as puberty blockers, hormone therapies, or surgical procedures for gender dysphoria. Experts say, the ban will affect up to 9,000 of the state’s Medicaid enrollees who are transgender. Currently nine other states ban Medicaid from covering gender-affirming care.
  • The Centers for Medicare and Medicaid Services (CMS) released a notice of proposed rulemaking (NPRM) to promote consistent use of nationally standardized quality measures in Medicaid and the Children’s Health Insurance Program (CHIP). The Core sets are designed to measure the overall national quality of care for beneficiaries, monitor performance at the state level, and improve the quality of health care. CMS is providing a 60-day comment period for the NPRM accepting comments no later than October 21, 2022.
  • The Kaiser Family Foundation (KFF) released an article on how the fate of Medicaid expansion and filling the coverage gap may depend on the outcome of state elections. The report notes that expansion is likely to be a major issue in several upcoming state elections. In the 12 states that have not adopted Medicaid expansion, all but two (NC and MS) have upcoming gubernatorial elections in November 2022. States where Medicaid expansion could be an issue in the election — and where the gubernatorial election is considered a toss-up — include Georgia, Kansas, and Wisconsin.
  • A health care company must pay $100 million to the Federal Trade Commission to refund consumers who were lured into a non-ACA compliant “sham” health care plans by agents and brokers who used deceptive marketing techniques. FTC’s action comes after numerous lawmakers, state regulators, and other stakeholders have been highlighting the proliferation of insurance products that are not required to adhere to the ACA’s consumer protections, like coverage of preexisting conditions, out-of-pocket spending caps, and annual limits, as well as marketing practices used by some agents and brokers to steer consumers into non-ACA compliant products like short-term plans, limited benefit plans or health sharing ministries.
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