Health Center Regulatory Issues

CMS Publishes Finals Rules for the Federally-facilitated Marketplaces; some Rural Health Clinics to Qualify as Essential Community Providers in 2016

On February 20, 2015, CMS released the finalized 2016 “Letter to Issuers” and final rule on “Benefit and Payment Parameters” establishing requirements for Qualified Health Plans (QHPs) to be sold in Federally-facilitated Marketplaces in 2016. NACHC previously submitted comments on both documents, which address network adequacy and payment rules. Among the issues impacting FQHCs directly, little was changed since initial guidance was proposed late in 2014. Key issues impacting FQHCs are 1) network adequacy, 2) ECP provider type requirements, and 3) payment.

Network Adequacy:
CMS proposes to leave in place for 2016 the same network adequacy processes and standards in place for 2015. Namely, each QHP must attest to “maintaining a network that is sufficient in number and types of providers…to assure that all services will be accessible to enrollees without unreasonable delay.” QHPs will be required to submit detailed provider network data, which CMS will analyze and evaluate (and has the right to request a detailed justification from a plan as to how it will ensure adequate access in particular areas). CMS will also require that QHPs publish their provider directories online throughout the course of the year, updated at least monthly. CMS plans to continually evaluate and issue updated rulemaking in future years.

Essential Community Providers:

In the 2016 Letter to Issuers, CMS also leaves in place current ECP minimum threshold standard of 30 percent. In other words, each plan must contract with at least 30 percent of the available ECPs in each plan’s service area.
Each plan must also offer contracts in “good faith” to at least one ECP in each ECP category. A contract is defined as in good faith if its terms are those that “a willing, similarly-situated, non-ECP provider would accept or has accepted.” The ECP categories include, FQHCs, family planning providers, hospitals, Indian health care providers, Ryan White providers, and a catchall “other” ECP providers category. Starting in 2016, the guidance newly permits some Rural Health Clinics (RHCs) to qualify in this “other” category as Essential Community Providers (ECPs). This allows these RHCs to count towards the requirement that QHPs contract with at least 30 percent of ECPs in their service area. However, the only RHCs that can be counted as ECPs “1) based on attestation, the clinic accepts patients regardless of ability to pay and offers a sliding fee schedule; or is located in a primary care Health Professional Shortage Area (geographic, population, or automatic); and 2) accepts patients regardless of coverage source (i.e., Medicare, Medicaid, CHIP, private health insurance, etc.).”

Most importantly, however, FQHCs remain one of the required ECP “types”— for which all QHPs must contract with at least one provider of each type in each county in the plan’s service area. In other words, QHPs will continue to be required to offer a contract to at least one FQHC in each county regardless of whether they otherwise have a contract with an RHC or other ECP provider.

Payment to FQHCs:

Lastly, the final rule makes no substantial change to the FQHC payment requirements. It reiterates that if an item or service covered by a QHP is provided by an FQHC, the QHP must pay the health center’s Medicaid PPS/APM rate as defined in 1902(bb) of the Social Security Act. It does, however, include a concession that nothing precludes a QHP and FQHC from agreeing upon a different payment rate, so long as such rate is at least equal to that QHPs generally applicable payment rates.

The full-text of the 2016 Letter to Issuers can be found here and the final rule on Benefit and Payment Parameters can be found here.