Weekly Health Care Policy Update – January 7, 2022

January 14, 2022

In this update: 

  • Covid-19 Updates
    • Supreme Court Holds Hearing on Vaccine Mandates; CMS and NYC Proceed with Mandates
    • FDA Approves Pfizer Boosters for 12-to-15-Year-Olds, Shortens Booster Time
    • CDC Maintains Definition of “Fully-Vaccinated”
    • HHS Updates Covid-19 Reporting Guidance for Hospitals
    • Governor Hochul Addresses Covid-19 Surge and Extends Emergency Declarations
    • DOH Issues Health Advisory on Pediatric Hospitalizations, Shortens Isolation Period for Health Care Workers
    • NYC Ends Vaccine Counseling Program as NYS Begins Wider Medicaid Reimbursement
    • OPWDD Updates Guidance on Visitation and Covid-19 Vaccine Requirements
  • Federal Legislature
    • Build Back Better Act Negotiations on Pause
    • Senate Finance Committee Continues Work on Mental Health Legislation
    • 54 Democratic House Members Urge HHS to End Direct Contracting
  • Federal Regulation
    • CMS Issues Proposed CY 2023 Medicare Advantage and Part D Rule
    • CMS Issues 2023 Proposed Notice of Benefit and Payment Parameters
    • CMS Publishes Guidance for January 1st Implementation of No Surprises Act
    • ONC Releases Final Project US@ Technical Specification
    • CMS Finalizes Withdrawal of “Most Favored Nation” Part B Drug Pricing Rule
    • CMS Reports Record High in ACA Enrollment
    • Insurers Pay $2 Billion in 2020 MLR Rebate
    • Administration to Host Provider Nondiscrimination Listening Session
  • Other
    • PCORI Unveils Proposed Research Agenda and Invites Public Comment
    • GAO Opens Nominations for MACPAC
  • Congressional Hearings
  • New York State Updates
    • DFS Issues Guidance on the No Surprises Act and Ensuring Continuity of Care During Transitional Periods
    • DOH Encourages Participation in NYS Collaborative Care Medicaid Program
    • NYS Medicaid Begins Coverage of Developmental Screening in Early Childhood
    • Children’s Waiver Renewal Application Open for Public Comment
    • NYS Medicaid Extends Coverage of Mental Health Counseling for Pregnant Women to 12 Months Postpartum
    • DOH Provides Billing Guidance for the ET3 Model
    • CMS Approves SPA to Reduce Inpatient Hospital Reimbursement Rate
    • DOH Proposes Residential Health Care Facility Rate Adjustment and Other Technical Modifications
    • OPWDD Releases CSIDD Service, Billing, and Documentation Requirements
    • Governor Hochul Signs Health Care Bills Into Law

COVID-19 Updates

Supreme Court Holds Hearing on Vaccine Mandates; CMS and NYC Proceed with Mandates
Today (January 7th), the Supreme Court held a special hearing related to legal challenges to the Biden Administration’s dual Covid-19 mandates, which require (1) health care workers at Medicare and Medicaid-participating facilities to be vaccinated and (2) all workers at large employers to be vaccinated or undergo regular Covid-19 testing. Arguments at the hearing seemed to indicate that the first mandate, by the Centers for Medicare and Medicaid Services (CMS), might be upheld at least in part, while the second mandate, by the Occupational Health and Safety Administration (OSHA), was likely to be enjoined as being overbroad and without clear authorization. A decision will be released shortly.  

SPG’s summary of these and other New York-based vaccine mandates was included in our December 20th update (available here). Updates since then include:

  • CMS issued guidance that enforcement of the vaccination mandate for health care workers will begin on a delayed basis in all jurisdictions where courts have not issued a preliminary injunction. This includes 25 states (including New York), the District of Columbia, and the U.S. territories. Health care workers at Medicare and Medicaid-participating facilities will be required to have a first dose by January 27thand be fully vaccinated by February 28th.
  • OSHA updated its FAQ documents with further information on testing requirements under the alternative option for employees of large employers. For example, one over-the-counter self-administered Covid-19 test per week may be used to satisfy the testing requirement, as long as the administration of the test is observed by the employer or an authorized telehealth proctor. Testing requirements are still not planned to go into effect until February 9th.
  • New York City Mayor Eric Adams announced that his administration will proceed with former mayor Bill de Blasio’s private sector vaccine mandate as proposed. Adams stated that he will enforce the mandate “with a focus on compliance, not punishment,” and that the city will avoid penalizing businesses that make good-faith efforts to comply.

FDA Approves Pfizer Boosters for 12-to-15-Year-Olds, Shortens Booster Time
On January 3rd, the Food and Drug Administration (FDA) amended the emergency use authorization for the Pfizer-BioNTech Covid-19 vaccine in three ways:

  • Authorized single booster shots for 12- and 15-year-olds;
  • Shortened the recommended time between completion of primary (two-dose) vaccination and booster dose from six months to five months; and
  • Allowed for a third primary dose for certain immunocompromised children (those who have undergone solid organ transplantation or have conditions considered to have equivalent levels of immunocompromise) aged 5 through 11.

Following the approval, the Centers for Disease Control and Prevention (CDC) endorsed Pfizer booster shots for children between 12 and 17.
 
CDC Maintains Definition of “Fully-Vaccinated”
On January 5th, the CDC announced it would not be changing the definition of “fully vaccinated,” which currently means either two doses of an mRNA vaccine or a single dose of the Johnson & Johnson (J&J) vaccine. The announcement means that federal vaccination mandates for travel or employment will not require a booster. The CDC did, however, say that only three doses of an mRNA vaccine should be considered “up-to-date,” and that Americans who have only received one dose of the J&J vaccine should receive a second dose, preferably of an mRNA vaccine.
 
HHS Updates Covid-19 Reporting Guidance for Hospitals
On January 6th, the Department of Health and Human Services (HHS) released updated guidance for hospital reporting on Covid-19. Due to the Omicron surge, reporting requirements have not been reduced to the extent previously expected, and hospitals will continue to be expected to report data on a daily basis, with flexibilities on weekend and holiday reporting. Nevertheless, a number of data elements have been made inactive, including requirements to report on personal protective equipment availability and inventory. Some new data reporting requirements have been added, including elements such as pediatric beds and bed occupancy rates.
 
The new reporting requirements are available here.
 
Governor Hochul Addresses Covid-19 Surge and Extends Emergency Declarations
On December 31, 2021, Governor Hochul released a “Winter Surge Plan 2.0,” which outlines several strategies to address the Covid-19 Omicron variant including, but not limited to: 

  • Extending the state’s indoor mask-or-vaccine requirement for an additional two weeks;
  • Distributing masks and antiviral treatments;
  • Boosting hospital capacity through the “surge and flex” system;
  • Launching EMT training classes for the National Guard; and
  • Requiring nursing homes to demonstrate a plan to increase vaccination and booster rates among residents.

The Governor also issued Executive Order 4.3 (available here) and Executive Order 4.4 (available here) which extend the statewide disaster emergency due to health care staffing shortages through January 30th, and Executive Order 11.1 (available here), which extends through January 31st the Covid-19 State Disaster Emergency declared in Executive Order 11.
 
Executive Orders 4.3 and 4.4 continue the provisions in Executive Order 4 that reinstated many workforce and scope of practice flexibilities that applied during the original New York State Covid-19 public health emergency. The Orders also add several modifications, including:  

  • Permitting health care facilities to continue to employ surgical technologists who failed to meet the minimum standards within two years of the start of employment or contracting for the performance of surgical technology;
  • Indicating that failure of a nursing home to meet the daily average staffing hours will not be held in violation of the Public Health Law; and
  • Indicating that failure or a residential health care facility to spend a minimum of 70 percent of revenue on direct resident care, and 40 percent of revenue on resident-facing staffing, will not be held to be a violation of the Public Health Law.

Executive Order 11.1 extends the activation of the State’s Comprehensive Emergency Management Plan and the hospital “surge and flex” system without further changes.
 
SPG’s updated NYS Regulatory Waiver tracker is available here.
 
NYSDOH Issues Health Advisory on Pediatric Hospitalizations, Shortens Isolation Period for Health Care Workers
On December 24, 2021, the New York State Department of Health (DOH) issued a health advisory (available here) warning of an increase in pediatric hospitalizations associated with Covid-19.
 
At the same time, DOH released updated guidance (available here) that shortens the required isolation period for certain fully vaccinated health care workers and other critical workforce members. Under the new guidance, which matches with current CDC recommendations, such workers may return to work after day 5 of isolation under certain conditions.
 
NYC Ends Vaccine Counseling Program as NYS Begins Wider Medicaid Reimbursement
On December 23, 2021, the New York City Department of Health and Mental Hygiene (DOHMH) announced that the Vaccine Outreach and Counseling Program (VOCP), which pays primary care providers for counseling unvaccinated patients from a list supplied by participating health plans, will not continue past December 31, 2021.
 
DOHMH noted that VOCP may now be replaced by NYS Medicaid coverage of similar services, without the restriction to a list or to certain plans, which was effective December 1, 2021. Under this benefit, Medicaid covers Covid-19 vaccine counseling for individuals ages five years and older who have not received any dose of a Covid-19 vaccine.
 
Medicaid reimbursement for vaccine counseling services differs from VOCP in the following ways: 

  • Vaccine counseling must last at least eight minutes, compared to at least three minutes in VOCP;
  • Providers can bill for counseling provided to any member who has not received a Covid-19 vaccine dose; 
  • Providers can bill for counseling as a standalone service or in addition to an evaluation and management code;
  • Reimbursement is $25 per counseling session, compared to $25-50 in VOCP; and
  • Billing guidance varies based on provider type and setting, which applies to all Medicaid fee-for-service and managed care plans.

Providers who may bill NYS Medicaid for vaccine counseling include: 

  • Physicians;
  • Nurse practitioners
  • Licensed midwives;
  • Pharmacists;
  • Article 28 clinics;
  • Federally Qualified Health Centers (FQHCs);
  • Skilled Nursing Facilities (SNFs);
  • Certified Home Health Agencies (CHHAs);
  • Hospice;
  • Adult Day Health Care (ADHC);
  • Inpatient hospitals;
  • Assisted Living Programs (ALPs); and
  • Voluntary Foster Care Agencies (VFCAs).

The NYS Medicaid guidance for Covid-19 vaccine counseling is available here.

NYS OPWDD Updates Guidance on Visitation and Covid-19 Vaccine Requirements
On January 4th, the Office for People with Developmental Disabilities (OPWDD) updated and reinstated its visitation guidance for residential facilities (available here) due to the recent surge of Covid-19 cases. The guidance requires all visitors to submit to a pre-screening and to schedule visits in advance.

OPWDD has also released guidance on the OSHA Covid-19 vaccine requirements (available here) and its applicability to the OPWDD service system, updated guidance on the CMS vaccine mandate (available here), revised protocols for direct care staff to return to work (available here), and a vaccine regulations comparison table (available here) that explains the vaccine mandate requirements across CMS, OSHA, and New York City.

Legislative Update

Build Back Better Act Negotiations on Pause
On January 2nd, Axios reported that Senator Joe Manchin (D-WV) was open to reengaging in negotiations on the Build Back Better Act. Just before Christmas, Manchin had released a formal statement that he would not vote to move forward with the Act. According to Axios, Manchin’s specific policy concerns seem to be related to the bill’s climate and child tax credit provisions, and not any of its health care provisions. However, Manchin and the Biden Administration have denied or declined to comment on any further negotiations taking place. The Senate is expected to address other priorities during a “cooling off period” and only to return to negotiations later this month.

Senate Finance Committee Continues Work on Mental Health Legislation
The Senate Finance Committee is continuing its work on developing a bipartisan package of mental health for possible consideration later this year. The Committee intends to hold two hearings in the next month on the topic of children’s behavioral health. Additionally, a Democratic and Republican member of the Committee have been identified to co-chair each of the various areas of focus from the Request for Information released in September 2021 (available here).

54 Democratic House Members Urge HHS to End Direct Contracting
On January 5th, Representative Pramila Jayapal (D-WA) wrote a letter to HHS Secretary Xavier Becerra asking them to permanently end the Global and Professional Direct Contracting (GPDC) model. The letter describes the GPDC model as “a threat to patient care and outcomes due to the encroachment of profit-driven organizations,” and cites an article by Don Berwick and Richard Gilfillan published in Health Affairs in September 2021 criticizing the GPDC model. The letter was cosigned by 53 other Representatives, largely representing the left wing of the Democratic caucus.

The letter is available here.

Regulatory Updates

CMS Issues Proposed CY 2023 Medicare Advantage and Part D Rule
On January 6th, CMS issued a proposed rule to update Medicare Advantage (MA) and Part D for calendar year (CY) 2023. Proposals include:

  • Requiring plans to apply all price concessions they receive from network pharmacies to the point of sale, by changing the definition of “negotiated price” to the lowest possible payment to a pharmacy, effective January 1, 2023;
  • Expanding requirements for disclosure and oversight of marketing and communications policies;
  • Instituting network adequacy standards as part of the MA application process;
  • Adding additional past performance standards for MA issuers seeking new or expanded contracts;
  • Reinstating medical loss ratio (MLR) reporting standards that were in effect under the Obama Administration;
  • A number of policies regarding dual eligible Special Needs Plans (D-SNPs), such as: 
    • Allowing certain states to require that plans establish a separate D-SNPs contract, which would disaggregate their Star Ratings from regular MA plans;
    • Requiring D-SNPs to ask additional questions on social determinants of health in Health Risk Assessments (HRAs); and
    • Specifying that the maximum out of pocket (MOOP) for an MA plan is calculated based on all Medicare cost-sharing accrued, even if not paid by the beneficiary directly.

CMS is soliciting comments on these and other topics covered, such as the coordination of Medicaid benefits with MA supplemental benefits. The rule also includes a Request for Information (RFI) seeking input on challenges that MA organizations in building adequate behavioral health networks.
 
SPG will distribute a more detailed summary of this rule early next week. A fact sheet is available here. The full text of the rule is available here. Comments are due by March 7th.
 
CMS Issues 2023 Proposed Notice of Benefit and Payment Parameters
On December 28, 2021, CMS released the proposed Notice of Benefit and Payment Parameters (NBPP) for plan year 2023, which regulates qualified health plans (QHPs) provided in the individual and small group markets. Proposals include:

  • Essential Health Benefits: CMS proposes to restore discrimination protections for LBGTQ individuals that were reversed by a 2020 rule. The proposed rule would prohibit discrimination based on sexual orientation or gender identity in benefit design (and the implementation of benefit design), in insurer marketing practices, by qualified health plans, and by states and exchanges.
  • Quality Improvement Strategy (QIS): CMS proposes to require QHP issuers to address health and health care disparities as a specific topic area within their QIS.
  • Risk Adjustment: CMS proposes a number of changes intended to improve prediction in the adult and child models for the lowest-risk enrollees, the highest-risk enrollees, and partial-year enrollees. CMS will continue to use enrollee-level EDGE data from 2017, 2018, and 2019 to recalibrate the model for 2023.
  • MLR: CMS proposes two changes to tighten how issuers calculate MLRs. First, CMS would clarify that, to be included in the MLR numerator, incentives or bonuses paid to a provider must be tied to clearly defined, objectively measured standards that are based on well-documented clinical or quality improvement standards. Second, CMS proposes that insurers may only count expenses for quality improvement activities that are directly related to improving care quality. This may include the salaries of staff directly performing quality improvement functions, but may not include indirect expenses, such as a portion of overhead, marketing, office space, etc.
  • Essential Community Providers (ECPs): CMS proposes to increase, from 20% to 35%, the portion ECPs in its plan network. This standard was 30% under the Obama Administration and 20% under the Trump Administration. CMS also proposes to add substance use disorder treatment centers to the list of “other ECP providers.”
  • Prorating Premium Calculations: CMS proposes that, starting with the 2024 plan year, all marketplace types must prorate premiums and advance premium tax credits when an enrollee has coverage for less than a full month.

Finally, CMS proposes to require issuers in all Federally-facilitated Marketplaces (FFMs) and State-based Marketplaces on the Federal Platform (SBM-FPs) to offer plans with standardized cost-sharing parameters at every product network type, metal level, and service area in which that the issuer offers non-standardized plan options. CMS does not propose to limit the number of non-standardized plans that issuers may offer, but seeks comments on limiting non-standardized plan options in the future. This proposal coincided with the release of a report from the Assistant Secretary for Planning and Evaluationsuggesting that a surplus of choices in the market leads to poorer decisions by consumers. The report notes that in 2022, about 75% of federal marketplace enrollees have 60 plan options.

The proposed rule may be found here.  A fact sheet may be found here.

CMS Publishes Guidance for January 1st Implementation of No Surprises Act
On January 5th, HHS held a webinar to discuss the January 1st implementation of most of the No Surprises Act’s consumer health care protections. These include: 

  • A prohibition on surprise billing for out-of-network emergency services, or services provided by an out-of-network provider at an in-network facility, and an associated independent dispute resolution (IDR) process;
  • A requirement to provide a “good faith estimate” (GFE) in advance to self-pay or uninsured patients, and an associated patient-provider IDR process;
  • A requirement to ensure continuity of care by accepting the previous payment for 90 days after a patient is notified of a network change; and
  • A requirement to update provider directory information more frequently.

To date, eight IDR entities have been certified. HHS indicated that it will continue to elaborate on its guidance as time goes on, including on topics such as how GFE requirements would apply to mental health providers who might have difficulty projecting an expected service volume.
 
On December 30, 2021, the Center for Consumer Information and Insurance Oversight (CCIIO) at CMS published an FAQ document on the GFE requirements. It includes topics such as: 

  • When requirements go into effect;
  • Which providers and facilities are required to provide GFEs;
  • What to do when more than one provider/facility is involved in providing a service;
  • Which patients require a GFE;
  • Formatting for GFEs;
  • Ensuring patient access to GFEs;
  • What factors are included in calculating a GFE;
  • How hospital pricing affects a GFE; and
  • Projected administrative burden of providing GFEs.

The full FAQ can be found here. CCIIO has previously published a number of other guidance documents to help providers with implementation of the No Surprises Act, available on its website here.

ONC Releases Final Project US@ Technical Specification
On January 7th, the HHS Office of the National Coordinator for Health Information Technology (ONC) released the first final version of the “Project US@” Technical Specification. This specification is intended to be an industry-wide cross-standard format to represent patient addresses (mailing, physical, billing, and so on) to improve patient matching. Patient addresses are understood to be one of the data elements most sensitive to standardization, and therefore impactful on patient matching, but which are also subject to frequent change or variable data entry. As such, ONC encourages all health care stakeholders to consider adopting and implementing this specification.

The specification is available, along with an associated Companion Guide, on ONC’s website here.

CMS Finalizes Withdrawal of “Most Favored Nation” Part B Drug Pricing Rule
On December 29th, the Centers for Medicare and Medicaid Services (CMS) published a final rule rescinding the Most Favored Nation (MFN) Model interim final rule originally published under the Trump Administration on November 27, 2020. The MFN Model would have established a seven-year nationwide, mandatory model for Medicare to pay no more for certain Part B drugs than the price paid for those drugs by other similar nations.

Release of the proposal was followed by four lawsuits and a nationwide preliminary injunction based on procedural issues with the interim final rule. In rescinding the rule, CMS expressed its commitment to “incorporate value into payments for Medicare Part B drugs, improve access to evidence-based care, and reduce drug spending for consumers and throughout the health care system.”

The final rule can be found here.

CMS Reports Record High in ACA Enrollment
On December 22, 2021, CMS announced that a record 13.6 million consumers had enrolled in Affordable Care Act (ACA) Marketplace coverage for the 2022 plan year. Enrollment already surpassed the previous record of 12.7 million set in 2016. The total included more than 9.7 million enrollees through December 15, 2021, in states using HealthCare.gov, and nearly 3.9 million enrollees through December 11, 2021, in states using their own enrollment platforms. Open enrollment continues through January 15th.

The press release can be found here.

Insurers Pay $2 Billion in 2020 MLR Rebate
On December 17, 2021, CMS announced that consumers received $2 billion in rebates from insurers whose medical loss ratios fell below the thresholds required by the ACA in 2020. This includes approximately $1.3 billion in individual market rebates, $384 million in the small group market, and $291 million in the large group market. CMS offers a web-based tool to search a specific company’s reported MLR by state and year.

Large rebates were expected due to the impact of the Covid-19 pandemic on utilization. While the $2 billion total is substantially higher than the pre-pandemic, 2019 MLR total rebate of $1.3 billion, it was substantially lower than the $2.7 billion that was initially estimated would be repaid in a Kaiser Family Foundation report in April 2020. Most of the difference is due to lower than estimated MLR repayments in the individual market.

The press release can be found here.

Administration to Host Provider Nondiscrimination Listening Session
On January 19th at 1pm, HHS, the Department of Labor, and the Department of the Treasury will co-host a listening session regarding implementation of the provider nondiscrimination provision included in the Affordable Care Act. The ACA prohibits issuers from discriminating “with respect to participation under the plan or coverage against any health care provider who is acting within the scope of that provider’s license or certification under applicable State law.” In the Consolidated Appropriations Act of 2021, Congress urged the Departments to fully implement the provider nondiscrimination provision; some Members of Congress believe lax implementation and enforcement permit issuers to eliminate categories of providers from plan networks.

More information on the listening session is available here.

Other Updates

PCORI Unveils Proposed Research Agenda and Invites Public Comment
On January 6th, the Patient-Centered Outcomes Research Institute (PCORI) opened a public comment period on its proposed Research Agenda, which offers the framework for PCORI’s future funding of comparative clinical effectiveness research. The Research Agenda is based on five national priorities for health adopted by PCORI earlier this year, which include:

  • Increase evidence for existing interventions and emerging innovations in health;
  • Enhance infrastructure to accelerate patient-centered outcomes research;
  • Advance the science of dissemination, implementation, and health communication;
  • Achieve health equity; and
  • Accelerate progress toward an integrated learning health system.

The Research Agenda proposes that PCORI fund research in six areas of focus: 

  • Research that fills patient- and stakeholder-prioritized evidence gaps and is representative of diverse patient populations and settings;
  • Research that aims to achieve health equity and eliminate health and health care disparities;
  • Research that builds the evidence base for emerging interventions by leveraging the full range of data resources and partnership;
  • Research that examines the diverse burdens and clinical and economic impacts important to patients and other stakeholders;
  • Research that focuses on health promotion and illness prevention by addressing health drivers that occur where people live, work, learn, and play; and
  • Research that integrates implementation science and that advances approaches for communicating evidence so the public can access, understand and act on research findings.

The Research Agenda can be found here. The comment period will remain open through January 31st.

GAO Opens Nominations for MACPAC
On January 3rd, the Government Accountability Office (GAO) published a notice in the Federal Register seeking requests for nominations to the Medicaid and CHIP Payment and Access Commission (MACPAC). Five Commissioners will be chosen (or re-chosen) for terms effective May 2022. Nominations should be submitted by January 27th.

The notice is available here.

Congressional Hearings

Tuesday, January 11th:

  • At 10am, the Senate Health, Education, Labor, and Pensions (HELP) Committee will hold a hearing entitled “Addressing New Variants: A Federal Perspective on the COVID-19 Response.” More information is available here.

New York State Updates

DFS Issues Guidance on the No Surprises Act and Ensuring Continuity of Care During Transitional Periods
On December 22, 2021, the New York State Department of Financial Services (DFS) issued a circular letter (available here) to regulated health insurance plans and health care providers regarding the continuity of care requirements in the federal No Surprises Act. The Act ensures continuity of care for beneficiaries who are “continuing care patients” for 90 days when contract or benefit terminations affect provider network status or benefits.
 
The Act’s continuity of care protections are similar to those codified in New York State Law; however, to be fully compliant with the provisions in both the No Surprises Act and in New York State Law, insurance plans must: 

  • Cover transitional care for 90 days when a beneficiary is pregnant, including postpartum care directly related to the delivery, without a requirement that the pregnancy be in the second trimester at the time of the provider’s disaffiliation or termination;
  • Cover transitional care regardless of whether the beneficiary has notified the insurance plan of the need for transitional care;
  • Make participating providers aware of the requirements in the No Surprises Act related to acceptance of payment and adherence to policies, procedures, and quality standards during a transitional care period and include these requirements in contracts with participating providers;
  • Provide notice to beneficiaries of a provider’s disaffiliation from a plan network in a timely manner, which is considered 30 days prior to the termination by DOH and DFS;
  • Cover 90 days of transitional care for beneficiaries who would not be eligible under the provisions of the No Surprises Act but who would be eligible under New York State law, including the provision of postpartum care directly related to a delivery;
  • Cover 90 days of transitional care in situations when an insurance plan and hospital mutually agree to a termination and non-renewal of contract;
  • Cover 90 days of transitional care when the beneficiary does not qualify as a continuing care patient under the No Surprises Act but who is in an ongoing course of treatment with the provider at the time of the provider’s disaffiliation; and
  • Cover 90 days of transitional care for patients who meet the Act’s definition of “continuing care patient” when the contract between the group health insurance policy and the insurance plan has been terminated (additional guidance from CMS and DFS is expected to be released later in 2022).

Questions may be submitted to health@dfs.ny.gov.
 
DOH Encourages Participation in NYS Collaborative Care Medicaid Program
In the December 2021 Medicaid Update (available here), DOH published a notice encouraging primary care providers to participate in the NYS Collaborative Care Medicaid Program (CCMP). Through this model, trained primary care providers and embedded behavioral health professionals provide evidence-based medications or psychosocial treatments to patients in need, in addition to regular psychiatric case consultation and treatment adjustment for patients who are not improving as expected. Participation in CCMP allows providers to qualify for up to $150 per month per Medicaid patient receiving program services. Reimbursement for CCMP is carved out of Medicaid managed care and all claims are submitted on a fee-for-service basis.
 
Technical assistance and implementation support is available at no cost to providers. Interested providers may email NYSCollaborativeCare@omh.ny.gov with questions or for additional information.
 
NYS Medicaid Begins Coverage of Developmental Screening in Early Childhood
Effective January 1st for fee-for-service and April 1st for managed care, the NYS Medicaid program will reimburse for developmental screening in the “First Three Years of Life” of a child, in addition to the payment for an evaluation and management service. Developmental screening for autism spectrum disorder may be reimbursed up to two times in the “First Three Years of Life” starting at 18 months of age. Developmental screening for global developmental milestone screening services may be reimbursed up to one time per year in the “First Three Years of Life.”
 
Additional information is available in the December 2021 Medicaid update here.
 
Children’s Waiver Renewal Application Open for Public Comment
On January 5th, DOH posted a public notice the in the State Register (available here) announcing a public comment period prior to the submission of the 1915(c) Children’s Waiver Home and Community Based Services (HCBS) renewal application. The renewal application, which will extend the program from April 1, 2022 through March 31, 2027, includes the following changes to the current program, among others: 

  • Changes the title of “Palliative Care: Bereavement” to “Palliative Care: Counseling and Support Services”;
  • Removes all references to the Care at Home Waiver and other legacy children’s waivers;
  • Removes the Licensed Practitioner of the Healing Arts (LPHA) form requirement for Medically Fragile and Developmentally Disabled populations;
  • Consolidates Caregiver and Family Supports and Services and Community Self-Advocacy Support into a new service titled “Caregiver/Family Advocacy and Support Services”;
  • Adds “Transitional Care Coordination” as a new service;
  • Broadens the definition of caregivers eligible for training to include all individuals who supervise and care for members;
  • Changes the title of “Adaptive and Assistive Equipment” to “Adaptive and Assistive Technology”;
  • Proposes a 25 percent rate increase over historic Children’s HCBS rates through September 30th, consistent with the DOH spending plan for the enhanced Federal Medical Assistance Percentage (FMAP) for HCBS.

Public comment may be submitted to BH.Transition@health.ny.gov through February 4th.
 
NYS Medicaid Extends Coverage of Mental Health Counseling for Pregnant Women to 12 Months Postpartum
NYS Medicaid is extending the period of coverage for certain mental health services provided to pregnant or postpartum women. Counseling services provided by Licensed Clinical Social Workers (LCSWs) or Licensed Master Social Workers (LMSWs) are generally not reimbursable to an Article 28 provider. However, DOH established an exception for pregnant women up to 60 days postpartum in 2011. Going forward, Article 28 outpatient hospital clinics and freestanding Diagnostic and Treatment Centers (D&TCs) may now be reimbursed for LCSW and LMSW counseling for up to 12 months postpartum. This change is effective January 1st for fee-for-service and April 1st for managed care.
 
Additional information, including rate codes and links to relevant guidance documents, is available in the November 2021 Medicaid update here.
 
DOH Provides Billing Guidance for the ET3 Model
DOH previously announced the development of an Emergency Triage, Treat, and Transport (ET3) model that will mirror the ET3 program developed by CMS. To apply to participate in the DOH ET3 model, entities must first receive approval to participate in the CMS ET3 model (a list of selected applicants is available here). Any ambulance service that has been approved to participate in both the CMS ET3 model and the DOH parallel model may begin billing for ET3 services provided to Medicaid enrollees for dates of service on and after November 24, 2021.
 
Additional guidance is available in the November 2021 Medicaid update here. Providers may contact medtrans@health.ny.gov with questions, to confirm eligibility to participate, obtain an application, or check the status of an application.
 
CMS Approves SPA to Reduce Inpatient Hospital Reimbursement Rate
On December 22, 2021, CMS approved a State Plan Amendment (SPA) submitted by New York that implements an additional 5 percent reduction to the capital component of the inpatient hospital reimbursement rate, resulting in an overall 10 percent reduction (rates were reduced by 5% in April 2020). This rate reduction, as recommended by the second Medicaid Redesign Team, is effective October 1, 2021.
 
The SPA is available here and the CMS approval letter is available here.
 
DOH Proposes Residential Health Care Facility Rate Adjustment and Other Technical Modifications
On December 29, 2021, DOH issued a public notice in the State Register (available here) proposing to adjust rates for residential health care facilities meeting the requirements set forth in Section 2828 of the Public Health Law. Effective on or after January 1, 2022, the rate adjustment would support required increases in resident-facing staffing services provided by nursing staff and the implementation of other required regulations. Details on the new statutory provisions are available in SPG’s 2021 Enacted Budget summary.
 
Public comment on the proposed SPA may be submitted to spa_inquiries@health.ny.gov.
 
The December 29, 2021 State Register also includes several other technical amendments, including proposed revisions to the Ambulatory Patient Group (APG) reimbursement methodology to reflect APG policy updates, a proposal to redefine the rural designation for the inpatient psychiatric services provided in exempt general hospitals, and the implementation of several rate adjustments.
 
OPWDD Releases CSIDD Service, Billing, and Documentation Requirements
On December 21, 2021, OPWDD released an administrative memorandum (available here) that defines the service, billing, and documentation requirements for Resource Centers serving individuals enrolled in Crisis Services for Individuals with Intellectual and/or Developmental Disabilities (CSIDD). Resource Centers provide community-based crisis stabilization, assessment, treatment, and identification of interventions to reduce stress for the individual with the goal of avoiding hospitalizations or emergency services. Services are intended to provide short-term supports to individuals who are unable to access other community respite supports.
 
Questions may be submitted to CSIDDCOF@opwdd.ny.gov.
 
Governor Hochul Signs Health Care Bills Into Law
Governor Hochul signed the following health care-related bills at the end of the 2021 legislative session: 

  • S4377/A6222 requires the translation and provision of patient’s rights into the six most common non-English languages of New York State, and requires every nursing home and residential health care facility to post contact information for the long-term care ombudsman program in each resident’s room.
  • S7075/A3516 requires insurance plans to provide beneficiaries with an explanation of pharmaceutical benefits.
  • S2008B/A1677 requires insurance plans to differentiate between partial approval of medical claims and full denial of medical claims on written notices.
  • S1035A/A4685 prohibits general hospitals from disallowing individuals with disabilities from having an essential support person accompany them for the duration of their hospitalization during a state of emergency.  
  • S6276A/A7223 requires the president of the Civil Service Commission to conduct a study on and provide recommendations regarding the employment of individuals and veterans with disabilities by the State.
  • S6294A/A7381 requires the Developmental Disabilities Advisory Council to evaluate the State’s response to the Covid-19 state disaster emergency as it relates to individuals with intellectual and/or developmental disabilities.
  • S6576/A7187 makes care and services provided by licensed clinical social workers eligible for coverage under the Medicaid program.
  • S6194B/A7177 establishes a 9-8-8 suicide prevention and mental health crisis hotline system.
  • S6571/A6166A requires reporting of alcohol overdose data in addition to existing opioid overdose reporting requirements
  • S4652B/A6590 directs the Commissioners of Economic Development, Health, and Labor, in partnership with the Office for Children and Family Services (OCFS), to study, develop, and implement a long-term strategy to support the growth of the caregiving industry in NYS.
  • S4827/A7315 directs DFS to review covered benefits related to childbirth.
  • S1056/A4613 creates a task force on improving urban and rural access to locally produced, healthy foods.
  • S4111/A4668 prohibits health care plans that provide essential benefits under the Affordable Care Act from removing a prescription drug from a formulary or adding new or additional formulary restrictions during an enrollment year.
  • S3503C/A1561 authorizes the Office of Fire Prevention and Control to establish the New York State rural ambulance services task force.
  • S2987A/A5679 declares racism a public health crisis and establishes a working group to promote racial equity throughout the state.
  • S1783A/A6057 directs the Commissioner of Health to establish and implement an infection inspection audit and checklist on nursing homes.
  • S1788A/A5836 creates a veterans’ mental health and suicide prevention task force.
  • S1451A/A0191 requires a health equity assessment to be filed with an application for instruction, or substantial reduction of, a hospital or health-related service.
  • S679A/A1927 establishes the Council for Treatment Equity within the Office of Addiction Services and Supports (OASAS).
  • S6375/A5713 directs the Commissioner of Health to conduct a study of the delivery of ambulatory care and other medical care in response to the Covid-19 pandemic.
  • S649A/A2030 prohibits prior authorization for all buprenorphine products, methadone, or naltrexone for detoxification or maintenance treatment of a substance use disorder.