Congress Delays Medicaid DSH Cuts, Makes Targeted Medicaid Policy Changes

Editor’s Note:  For more information on other key healthcare policy of the Consolidated Appropriations Act, please see last week’s “Manatt on Health” newsletters:

• Congress Alters Provider Relief Fund Rules of the Road
• Congress Requires Health Plans to Accelerate Mental Health Parity Compliance
• Independent Dispute Resolution Under the No Surprises Act—Something for Everyone, If It Applies
• Year-End Appropriations Bill Includes Myriad Medicare Policy Changes

The Big Picture

In late December, following several weeks of dynamic negotiations, Congress passed the Consolidated Appropriations Act, 2021 (the Act).¹ The massive legislative package includes appropriations through September 30, 2021, $900 billion in supplemental appropriations to address COVID-19, a ban on surprise billing, extensions of expiring health programs and an amalgam of odds-and-ends health policy provisions.

The Act contains several key Medicaid provisions, including a delay in Medicaid Disproportionate Share Hospital (DSH) allotment reductions, new Medicaid supplemental payment reporting requirements for states and codification of non-emergency medical transportation (NEMT) rules, described below.

But despite the vastness of the legislation, key Medicaid priorities were not included. States and other stakeholders have been lobbying Congress to increase the Medicaid enhanced matching rate that applies to medical expenditures for the duration of the public health emergency (PHE) and extend it beyond the duration of the PHE. This COVID-19 relief provision and other Medicaid proposals, such as a proposal to extend Medicaid coverage of postpartum women eligible for Medicaid on the basis of their pregnancy, will be high priorities for Democrats as they work with the incoming Biden administration to secure a fifth round of COVID-19 stimulus funding early this year.

DSH and Supplemental Payment Reporting Requirements

Delay in Medicaid DSH Allotment Reductions. The Act eliminates reductions in Medicaid DSH allotments—that is, the cap on federal match for state Medicaid DSH expenditures—in fiscal year (FY) 2021. It also delays the remaining four years of cuts until FY 2024, as shown in Figure 1 below.

Figure 1. Change in Medicaid DSH Allotment Reductions

Changes to Calculation of Hospital-Specific DSH Limit. The Act also modifies the maximum amount of Medicaid DSH payments an individual hospital may receive, by redefining what costs are included when calculating hospital-specific DSH limits. States’ DSH payments to individual hospitals may not exceed a hospital’s uncompensated care costs for uninsured patients and Medicaid-enrolled patients. The second component—uncompensated care costs for Medicaid-enrolled patients—is the difference between the costs of services provided and payments received from Medicaid, and is referred to as the Medicaid shortfall.

Department of Health and Human Services (HHS) guidance and rulemaking regarding how hospitals calculate Medicaid shortfall for DSH purposes have been contentious and led to a litany of lawsuits. The issue at hand is how to account for Medicaid enrollees who have another source of coverage, such as Medicare or commercial insurance, when calculating Medicaid shortfall. Although HHS policy has been that states must account for all third-party payments when calculating hospital-specific DSH limits, some hospitals have argued that only Medicaid payments should count against the hospital-specific DSH limit.

Congress adopts an entirely different method for calculating Medicaid shortfall, as recommended by the Medicaid and CHIP Payment and Access Commission (MACPAC). Rather than focus on whether payments for individuals with third-party coverage should count in the hospital-specific DSH limit calculation, the Act simply omits from the calculation all costs for Medicaid-eligible patients with third-party sources of coverage where the third-party source of coverage is the primary payer. As a result, hospitals that treat high volumes of patients with Medicaid and third-party coverage (such as children’s hospitals that treat neonates, who commonly are covered by commercial insurance and Medicaid, or hospitals serving large numbers of dual eligibles) may report less Medicaid shortfall. And because many states use hospitals’ uncompensated care amounts to distribute DSH payments among hospitals, this change is likely to impact the distribution of Medicaid DSH payments among hospitals in certain states.

Supplemental Payment Reporting Requirements. The Act imposes new requirements on states to report any supplemental payments made through their Medicaid programs. By October 1, 2021, HHS must establish a system for states to submit reports on supplemental payment data as a requirement for a State Plan Amendment that would provide for a supplemental payment. In their reports, states will be required to explain, among other elements, (1) how supplemental payments are in keeping with the Social Security Act’s mandate that Medicaid payments be consistent with “efficiency, economy, quality of care, and access,” as well as with the purpose of the supplemental payment; (2) the criteria used to determine which providers qualify for a supplemental payment; (3) the methodology used to distribute the supplemental payments; and (4) the amount of supplemental payments made to each provider.³

Supplemental payments will continue to be a hot-button issue for many federal policymakers and increased transparency through required reporting may fuel future policy changes.

Other Medicaid Provisions

The Act includes several other Medicaid policies including:

• Codification of NEMT Requirements. The Act requires states to provide NEMT to Medicaid beneficiaries who lack access to regular transportation (including those enrolled in benchmark and benchmark equivalent coverage). Previously, the requirement existed only in regulation, and the Trump administration had threatened to eliminate it. In making NEMT a mandatory benefit through statute, Congress also establishes some guardrails around the new benefit, namely by including NEMT provider requirements and by directing that the Medicaid state plan provide for methods and procedures to prevent unnecessary utilization and to ensure that payments are consistent with efficiency, economy, and quality of care and sufficient to promote access. The Act directs the Government Accountability Office to study NEMT services, with a particular focus on preventing and detecting fraud and abuse. The legislation also requires CMS to report Transformed Medicaid Statistical Information System data to Congress along with recommendations regarding coverage of NEMT to medically necessary services; to convene a series of stakeholder meetings to discuss best practices for improving Medicaid program integrity related to NEMT; and to review and update, as necessary, CMS guidance to states about designing and administering NEMT coverage. Finally, the legislation authorizes states that utilize NEMT brokerage programs, as permitted under Section 1902(a)(70), to consult stakeholders in establishing their programs.
• Eligibility Restoration for Citizens of Freely Associated States. The Act eliminates the five-year bar on Medicaid eligibility for citizens of the freely associated states (i.e., Micronesia, Marshall Islands, and Palau) who are legally residing in the United States. The legislation restores access to Medicaid for this population after a drafting error in the 1996 Personal Responsibility and Work Opportunity Reconciliation Act excluded them from coverage.
• Medicaid Extenders. The Act includes funding through FY 2023 for the Money Follows the Person Rebalancing Demonstration, which helps states rebalance utilization and spending toward home- and community-based services (HCBS) rather than institutional care; spousal impoverishment protections, which allow states to disregard individuals’ spousal income and assets when determining eligibility for Medicaid HCBS; and the community mental health services demonstration program, which provides eight states with enhanced funding to improve behavioral health services through Certified Community Behavioral Health Clinics.

_{¹ P.L. 116-260.}

_{² Beginning in December 2020.}

_{³ The Act indicates in what appears to be a drafting error that each state’s report must provide an assurance that the total payments made to an inpatient hospital provider (but excluding DSH payments) do not exceed the upper payment limit (UPL). However, there is no hospital-specific cap on supplemental payments subject to the UPL; rather, the UPL is assessed at an aggregate level for defined classes of providers (which is established in statute). Congress and/or the Centers for Medicare & Medicaid Services (CMS) may seek to clarify this provision.}