Comments by LeadingAge Texas on Proposed Rule CMS-2393-P – MFAR
Thursday, March 5, 2020
January 27, 2020
Centers for Medicare & Medicare Services
Department of Health and Human Services
Mail Stop C4-26-05
7500 Security Boulevard
Baltimore, MD 21244-1850
Re: Comments by LeadingAge Texas on Proposed Rule CMS-2393-P – Medicaid Program; Medicaid Fiscal Accountability Regulation
Please accept this letter of comment on the recently proposed rule, Medicaid Fiscal Accountability Regulation, Proposed Rule CMS-2392-P. LeadingAge Texas advocates for approximately 200 of Texas' finest retirement housing communities, assisted living facilities, continuing care retirement communities, nursing homes, and home and community based services providers. Over 30,000 older Texans reside in LeadingAge Texas-member communities. Thousands more are served through home health services, adult day care centers, and other community out-reach services. LeadingAge Texas members are sponsored primarily by community-based nonprofit civic, religious, fraternal, and other mission-driven organizations.
LeadingAge Texas urges the Centers for Medicare and Medicaid Services (CMS) to withdraw or substantially delay implementation of Proposed Rule CMS-2392-P due to its potential impact on supplemental payment programs. Specifically, the Quality Incentive Payment Program (QIPP) in Texas.
A majority of LeadingAge Texas members serving Medicaid beneficiaries participate in QIPP as both private and public nursing homes. Currently, over 800 nursing homes are enrolled in the program. Over the last three years, QIPP has encouraged quality improvement by awarding nursing homes that meet certain quality metrics with incentive payments. Those incentive-based payments have allowed Texas nursing homes to reinvest in direct-resident care and achieve sustainable quality improvement. Lastly, QIPP has made critical Medicaid funds available to nursing homes financially strained due to historic underfunding.
We believe CMS is taking an aggressive approach that would have major implications for thousands of Texans and the providers that serve them. Additionally, these proposed changes were developed without consultation or collaboration with Congress, state Medicaid agencies, the provider trade associations representing nursing homes, and other Medicaid providers that would be adversely affected. Instead of making changes to the supplemental payment rules without comprehensive data to realize the impact, CMS should take a more data-driven and iterative approach before making such major changes to these critical programs.
Restrictions on Sources of IGTs to Tax Revenue Only
CMS should withdraw this portion of the proposed rule. The proposed rule attempts to limit the source of IGTs to tax revenues only. Federal law and longstanding CMS policy allows NSGOs to use revenues derived from various sources including inpatient and outpatient hospital care to make intergovernmental transfers (IGTs) to cover the nonfederal share of supplemental payments. Such funds are no less public due to their source. This change would cause a major dilemma creating a significant budget gap, diversion of funds from other priorities, or cuts to the Medicaid program. Lastly, the preamble misinterprets Congressional intent and CMS’s own longstanding interpretation of the 1991 Voluntary Contribution and Provider-Specific Tax Amendments law as a vehicle to abruptly cut federal spending to supplement inadequate Medicaid rates for long term care services.
Changes to Definition of Non-State Government Owned or Operated
CMS should defer to states regarding the definition of a unit of government. Currently, the term “non-state government owned or operated” (“NSGO”) refers to a nursing facility (“NF”) that is “owned or operated” by a non-state government entity. This allows a non-state government entity, such as a public hospital, the ability to operate a nursing facility it leases instead of owns. In addition, it allows the NSGO entity to contract with an experienced management company to run the day-to-day operations of the facility.
By creating a new definition of “non-state government provider” CMS is infringing on a fundamental reserved right of states to organize their governmental structures as they see fit. This intrusion into the operation and administration of state government violates the very basis of the Medicaid program -- the federal-state partnership and the federalism principles on which it rests. The rule would undermine the efforts of state and local governments to deliver public health care services more efficiently and effectively, and penalize those that have reduced their reliance on taxpayer support.
Calculating Supplemental Payments
The proposed rule would make substantial changes to how states calculate non-DSH supplemental payments but does not provide data supporting such changes. Instead, it proposes to limit the types of data used (e.g., from within the last two years) and the methodologies states can employ to calculate supplemental payments. It also requires states to submit extensive data to CMS on quarterly and annual bases, which would be used to inform future decision making on supplemental payments and upper payment limits. CMS should collect the data needed for this section of the proposal, perform analyses and propose changes according to those findings.
As proposed, the Medicaid Fiscal Accountability Regulation would drastically impact QIPP, potentially eliminating it altogether. These changes could result in access to care issues for Texas nursing facility residents, especially in rural areas of the state. LeadingAge Texas appreciates the opportunity to submit comments on behalf of not-for-profit nursing home providers in Texas, and is committed to working with CMS to develop Medicaid financing strategies that are transparent and sustainable long-term.
CMS should not move forward with the proposed changes impacting supplemental payments without first examining the full impact on both patients and providers, and gathering the data needed to make such changes responsibly. The proposed rule should be delayed or withdrawn until CMS has the necessary information and data to fully consider the impact of implementation. Additionally, it should consult with Congress, Medicaid state agencies and the healthcare provider associations impacted.