DSHS response to comments during the public comment period for Policy 590-001 DSHS Funds as Payment of Last Resort
The DSHS proposed additions and changes to the Payment of Last Resort policy drew many comments, and we appreciate the thorough review by our stakeholders. The federal law establishing the Ryan White HIV/AIDS Program (RWHAP) and the interpretation and guidance provided by the Health Resources Administration (HRSA) is clear that the RWHAP funds must be the payment of last resort, and that if clients hold insurance, efforts must be made by providers to seek reimbursement for services from the health plan. Policy Clarification Notice (PCN) #13-02 from HRSA states.
By statute, RWHAP funds may not be used for any item or service “for which payment has been made or can reasonably be expected to be made” by another payment source (Sections 2605(a)(6), 2617(b)(7)(F), 2664(f) (1) and 2671(i) of the Public Health Service (PHS) Act). RWHAP funds may be used to complete coverage that maintains PLWH in care when the individual is either underinsured or uninsured for a specific allowable service, as defined by the RWHAP. Grantees and subgrantees must assure that reasonable efforts are made to secure non-RWHAP funds whenever possible for services to individual clients. Grantees and their subgrantees are expected to vigorously pursue eligibility for other funding sources (e.g., Medicaid, CHIP, Medicare, other state-funded HIV/AIDS programs, employer sponsored health insurance coverage, and/or other private health insurance, etc.) to extend finite RWHAP grant resources to new clients and/or needed services.
This requirement must be tempered with reasonable expectations, as not every provider has been able to enter panels for all the health plans in their market and not every provider has the capacity to assist clients with enrollment on health plans if they appear to be eligible. It is a reasonable expectation that providers inquire about a client’s health insurance coverage prior to providing services, and it is not burdensome to require that providers refer clients to organizations or individuals who could assist clients who may be eligible for enrollment in health plans. It is also a reasonable requirement that providers attempt to enroll in panels for health plans that cover (a significant amount of) their clients. Health plan denial of provider enrollment documents this effort, but it is also a reasonable expectation that providers should make ongoing efforts to reverse denials by emphasizing their expertise in providing services for persons with HIV infection and their organization’s status as an Essential Community Provider as defined in the Affordable Care Act. Defining the actions that constitute reasonable efforts on the part of providers to seek health plan enrollment and reimbursement and to assist clients in enrolling in public or private health insurance are best guided by local policies, procedures, best practices, and service standards of care or practice that are responsive to quality of services. Any benchmarks provided for the state as a whole on many of these issues are unlikely to be best suited for every area of the state.
HRSA policy also explicitly allows the use of RWHAP funds for payment of services that are not covered by health insurance or where clients are underinsured, such as when a client has exceeded the number of visits covered by a health plan. It also allows use of RWHAP funds for clients who refuse enrollment in health plans, but it is a reasonable expectation that such refusal be documented and that the client receive counseling on their enrollment in coverage at suitable intervals.
HRSA, DSHS, local administrators, and Planning Councils cannot create safe harbors for providers to exempt them from reasonable efforts to provide payment of last resort, nor can it exempt them from ongoing effort to inquire about a client’s coverage, enroll in health plans held by their clients, or to refer clients to individuals and organizations who can expertly assess and assist them in enrollment in health plans and non-RWHAP service programs for which they are eligible. All these requirements rest on the local consideration of what constitutes a reasonable or vigorous effort. DSHS and HRSA policies define these terms broadly because what is reasonable in one circumstance may not be in others, and the local understanding of what is reasonable may change to reflect changes in their local insurance and service delivery markets. As appropriate with a greater understanding of the changes in local markets and systems and input from stakeholders, DSHS and local definitions of reasonable, good faith or vigorous may evolve and become more concrete over time.
|1.0||Recommend setting out the initialism in the first section: payment of last resort (PoLR). It is used again in this section so it should be presented as PoLR not spelled out again.||Agreed, will update and maintain consistency in document.|
|1.0||Is the initialism for payment of last resort or payer of last resort? It seems to be used interchangeably in this document.||PoLR refers to ‘Payment of Last Resort’|
|2.0||I think we need some guidance on what “reasonably expect” means. For example, if someone has insurance and we don’t take that specific insurance, what can we do? We cannot be “reasonably expected” to take every single insurance out there, especially since the Marketplace changes annually. Some insurers are closed to new providers, and we cannot “reasonably expect” to be paid by a panel we cannot get on. We would be more than happy to produce documentation to prove that we attempted or are attempting to get on those panels as they come up, as part of due diligence.||At a minimum, providers must pursue enrollment/inclusion in the health insurance plans their otherwise eligible clients present. Such documentation should be maintained by the provider for inspection by the Administrative Agency (AA). Providers experiencing challenges in joining plans used by their patients should proactively notify their AA and if appropriate seek technical assistance.|
“These funds may not be used for any item or service for which payment has been made or can be reasonably be expected to be made by any other payer.”
To address this comment we have made the following changes to the language in this section.
These funds may not be used for any item or service for which payment has been made or can be reasonably expected to be made by any other payer. Other payers include at minimum public or private health insurance coverage including Medicaid, Medicare, CHIP, Marketplace and employer-based health insurance. Local AA may provide information about other resources that should be considered as payers.
Please work with your AA to determine appropriate metrics and actions needed to fulfill this requirement.
|2.0||What constitutes “any other payer”?||Any payer that is not RW, including but not limited to public or private health insurance coverage including Medicaid, Medicare, CHIP, Marketplace and employer-based health insurance.|
|4.0||Federal Poverty Level - The link connects to the 2014 Poverty Guidelines. The 2015 guideline link is: aspe.hhs.gov/2015-poverty-guidelines#guidelines. However, we suggest you host the main website page so this doesn’t need to be updated annually, which can be found at: aspe.hhs.gov/||Agreed and changed.|
|4.0||Texas HIV Medication Program (THMP) - On 11/03/2015 DSHS updated the public comment page for policy 260.002 which also contained a reference to the Texas Insurance Assistance Program (TIAP). DSHS deemed that this is a pilot program and language referencing it was removed from policy. A reference to the use of TIAP should also be removed from this policy for the same reason.||Added the word ‘pilot’ to definition to clarify reference.|
Recommend using PoLR as it was already set out.
|Agreed and changed.|
Suggest a rewording of this as it could be interpreted that since THMP is cited to be the payer of last resort, the local Pharmaceutical Assistance Programs (LPAPs) would have to be used as the first line of payment. The DSHS LPAP Standard states that LPAPs are not to take the place of the ADAP program.
|The PoLR policy is a blanket policy that applies to all Ryan White and State Services funding as a whole. Local pharmacy assistance programs supplement and do not replace ADAP services, and availability of RW-SS funded local pharmacy assistance services do not disqualify applications from ADAP participation.|
|6.2||Recommend using PoLR as it was already set out.||Agreed and changed.|
|6.3||Recommend using PoLR as it was already set out.||Agreed and changed.|
|6.4||Recommend using PoLR as it was already set out.||Agreed and changed.|
|7.0||First Bullet Point - We do not have case managers. The first part about “currently held,” we can do. However, screening for insurance for which a client may be eligible for is not within the boundaries of the client-therapist relationship. This should be relegated to case managers only and to agencies who have case managers.||7.0 is clearly written and does not require the use of specific personnel (e.g. case manager) to perform eligibility determinations. However, the provider must perform these activities to meet RW and DSHS requirements. Service specific providers (e.g. Mental Health) with limited staff resources may collaborate with other entities to ensure this requirement is met, however as the provider of the 3rd party eligible direct service the RW/SS-funded agency must meet PoLR requirements.|
|7.0||Second Bullet Point – We can ask IF the client has any public benefits, but not screen them for eligibility for them.||Clinicians/case managers/direct service providers should have the basic knowledge and ability to educate a client on potential benefits, or make a referral to someone who can.|
|7.0||Third Bullet Point - We need “vigorous” defined. Also, we do not enroll clients in the Marketplace or in Medicaid/care at certain agencies. This is a case management function and perhaps should even be limited to agencies with a CAC for enrollment in the Marketplace. We certainly do and can make referrals to agencies that can provide this assistance, but we do not enroll clients ourselves.||
The metric for “vigorous pursuit” should be defined at the EMA/TGA or HSDA level and implemented uniformly within the service area by the AA. Making and tracking referrals for benefits counseling and assistance can fulfill this requirement.
Referrals made must be tracked in client record for vigorous pursuit documentation.
|7.0||Second Paragraph – last Sentence (“Provider Must Follow up”)
This seems like a case management function. In agencies without case managers, this will be overstepping professional boundaries and creating a dual relationship with the client, which is not permitted per licensure restrictions and professional code of ethics.
|The funded agency must ensure PoLR requirements are met. The specific personnel used to perform these tasks are not prescribed by the policy.|
|7.0||Mentions a form to be used to document vigorous efforts made to enroll clients into other payers. Has that form been developed? Will it be include as a part of this policy.||Such forms have been developed in many service areas. Please contact your DSHS program consultant for assistance in developing or acquiring examples of existing forms. A sample form is included in the policy.|
|7.1||The Texas Insurance Assistance Program (TIAP) was recently posted as a pilot project and reference to it was removed from HIV/STD Policy 260.002 effective 11/03/2015.||Specified language to clarify that program is currently being piloted.|
|7.1||This word concerns me. It sounds like a more involved process than a referral. Can we substitute “informed”? “Counseling” someone sounds like you are advising or directing them of what to do and how to access it. I also do not want to confuse providers by using the word “counseling,” which implies therapy. Some case managers think they do counseling, and they do not. I’d rather not reinforce this mind set.||The word counseling is appropriate in this context.|
|7.2||Section 7.2 - 2nd sentence (“…they must receive counseling…”). See above comment.||The word counseling is appropriate in this context.|
|7.3||Absolute statements like “be referred to VA health centers” may be interpreted by auditors as an absolute requirement. Language should reflect that the referral would be based on client agreement to be referred.||
In response to this comment, we have made the following changes to policy wording for section 7.3 shown in italics below.
“Clients eligible for benefits through the Department of Veterans Affairs (VA) should receive education on the services available through the VA and be referred to VA health centers if they so choose. However, DSHS-funded services must be made available to VA-eligible clients who choose not to receive care through the VA systems. Such clients are dually eligible for RWHAP and VA services and therefore exempted from the PoLR requirement. As with all efforts of vigorous pursuit, a client’s refusal for referral to VA services must be clearly documented in client file.”
Per the PoLR policy clients can refuse to be referred to the VA. As with all efforts of vigorous pursuit this needs to be documented in client file.
|7.3||First Sentence - “Receive education” sounds like a much more involved process and has different expectations than “be referred to,” which is what I think this should be.||Direct services providers should be knowledgeable of local resources available to clients, including the VA.|
|7.3||Last Sentence - Are they exempt from “vigorous efforts” to make them enroll in the Marketplace? This needs to be specifically stated.||
If a client is eligible for care at the VA they are not eligible for coverage under the health insurance marketplace. This is implicit in this section per the following language, ‘exempted from the PoLR requirement.’
For more information on veterans’ eligibility through the health insurance marketplace please visit the following link: healthcare.gov/veterans/
|8.0||This is too much. Six month updates should suffice. This is nagging clients and creates a barrier to service. We see clients weekly in mental health counseling, and clients will get tired of this very quickly.||Providers of 3rd party billable services must continuously check for 3rd party coverage. This is a standard practice for most providers of health care services and not a burdensome requirement. Inquiring if a client has changes in their health insurance coverage can be easily incorporated to front desk procedures for checking in clients for appointments. Providers who do not inquire about changes in health insurance coverage run the risk of incurring significant financial liability if they fail to bill 3rd party payers when clients have coverage.|
|9.0||Comment - This statement cites that a client cannot be refused treatment services if they refuse to enroll in program or insurance plans, but does not state that RW B or state services grant funding may be used to support the client’s care if they refuse to enroll in programs or insurance. HRSA Policy 13-04 states that funding can be used.||Added HRSA Policy 13-04 reference to section 3.0 and cited policy in section 9.0.|
|9.0||First Sentence - Again, “be informed about.”||The word counseling is appropriate in this context.|
Last Sentence -
|10.0||Community-based HIV medical care clinics are having difficulty negotiating into plans. This is becoming increasingly a concern as clients therefore cannot access service providers who historically have provided their care; rather they are forced to seek care with potentially less qualified health care practitioners and private care clinics which may not work with the RW system. Studies have shown the disparity in the outcomes regarding viral suppression in such instances. This comment is provided to raise awareness of a growing challenge and encourage dialogue with community providers regarding this issue.||Thank you, this is a good point. Creating a space for community providers to discuss and brainstorm issues such as this is a great idea. The evidence of inferior outcomes from non-experienced providers should also be used when providers are making or appealing decisions on inclusion of RW providers in health plan panels.|
We as an agency have Medicaid and Medicare numbers; however, each time a new eligible provider is hired, they also have to apply for an M/M number, which can take 4-6 months or more.
We have been on that list for some time. It does not help speed provider applications through the credentialing process. If it should, please let me know who needs to hear a complaint.
What is the minimum number of clients that have to be on a particular health plan for the agency to have to be on that plan’s panel of physicians.
|Please work with your administrative agency to access technical assistance related to specific topics, such as this.|
|10.3||There is the opportunity for an interesting discussion about clients potentially being lost to care. We understand that the referral is required, but we had a patient with insurance coverage which our services were deemed out of network. The patient was truly apprehensive and didn’t want to go to another provider for her care. This becomes a point of advocacy for our clients, especially in light of difficulties negotiating into some plans, to ensure people are not lost to care.||
This a good point, thank you for voicing it.
Please work with your administrative agencies to problem solve, when these situations arise.
Second Sentence -
|11.0||As client caps are based on federal legislation, the directives from said legislation should be listed in the state policy for clarity, or reference as shown below in section 11.5.||Agreed. Updated policy to reflect reference to RWHAP legislation.|
|11.0||Second Paragraph - Is this just RW providers or all provides of the above-listed services that are considered billable? We currently adhere to this policy through RW A.||“All” providers (i.e. not only RW funded providers).|
|11.1||What is the “sliding fee discount pay class”? While some people may understand the reference to legislative language, referencing legislative language or citing as shown in section 11.5 below may prevent confusion.||The legislation is referenced in section 11.0.|
|11.2||At the present time, through July 2016, use of the Mock MAGI or MAGI worksheets are not required rather they are strongly encouraged by DSHS.||
DSHS has provided the following guidance regarding the use of MAGI:
DSHS is initiating an extended implementation period that will end July 31, 2016. This is an implementation period, and should not be interpreted as a chance to return to previous eligibility processes.
During the implementation period, the requirement to submit a tax transcript or Certificate of Non-Filing will be waived for all persons wishing to submit through the Mock-MAGI process.
Agencies are encouraged to educate their case managers and eligibility workers on the MAGI process, and the Tax Return Transcript remains the gold standard for eligibility.
Additionally, those persons who receive only SSDI or SSI income will not be asked to request documentation from the IRS unless they are married. This change will be permanent.
|11.2.1||Comment - Self-attestation is allowable by both HRSA and DSHS, therefore there is a potential for a patient record to not use MAGI calculations during a six-month recertification process. This should be reflected in this section. Both DSHS and HRSA allow this per DSHS Policy 220.001, Eligibility to Receive HIV Services and HRSA Policy Clarification Notice #13-02 Clarifications on Ryan White Program Client Eligibility Determinations and Recertification Requirements hab.hrsa.gov/manageyourgrant/pinspals/pcn1302clienteligibility.pdf (PDF)).||Agreed. Will include reference to self-attestation in policy.|
|11.2.1||2nd Sentence – Supporter statements can make this impossible and can “out” clients or cause unnecessary and unwanted curiosity on the part of employers and supporters.||Supporter statements are an option when no other form of financial documents are available. Supporter statements should be generic and unidentified. For additional technical assistance on this specific topic, or for help creating an appropriate ‘Supporter Statement’ form, please contact your administrative agency.|
This section is somewhat confusing. Patients and agencies will not be aware if their health insurance policies penalize the discount of copays and deductibles. Furthermore, this will cause great confusion on “tracking” the cost of the sliding fee discount. I am not sure there is a better solution other than stating services cannot be denied due to failure to pay copayment or deductible. I know the patient in the end will receive the bill from the provider either way so maybe the cost can be paid through other resources such as Health Insurance Premium and Cost Sharing Assistance or community financial assistance programs?
This section offers a “grey” area for providers. Just some thoughts…
|11.2.2 Is written as clearly as possible considering the variety of potential legal and contractual limitations with respect to discounting patients’ out of pocket obligations. Providers’ contracts with health insurance plans will usually specify requirements for securing point of care payments required from plan beneficiaries, and it is a best practice for providers to get written confirmation from health plans about their requirements for collection of point of care client co-payments. This policy stresses that waiving copayments or charges may violate contracts with insurance plans and that this should be investigated by the enrolled provider.|
|11.2.2||4th sentence – (“If the client receives HIA services…”) - Our TGA does not receive enough of this funding for this to be an option for us as a provider.||There should be sufficient HIA allocation to provide assistance when needed. Please consider providing your AA with an estimate of the needed HIA resources and discuss future allocations.|
|11.5||RWHAP legislation does not require the client’s household income to be determined via MAGI. Recommend stating MAGI is the state’s required process to determine household income and move the statement to the end of this section. If someone looks in federal RW legislation for a reference to MAGI they won’t find it.||
Calculating financial eligibility using MAGI is strongly recommended by HRSA/HAB to be the sole method of determining financial eligibility. DSHS has elected to require the use of MAGI to determine financial eligibility for its RW/SS-funded providers. This is intended to reduce the burden on patients and providers.
Added clarifying language to policy.
|11.5.1||2nd sentence - Thank you! This was a bone of contention with RW A.||You’re welcome.|
|11.5.1||Do over the counter expenses count towards the total aggregate charges?||Yes, if documented.|
|11.5.1||Suggest stating “specified in item 11.5” versus “specified above” in the first sentence.||Agreed and changed.|
|12.0||First Sentence - If the client has insurance, they are not RW-eligible and thus we do not consider them a RW client.||Income derived from insured clients is Program Income under RW program rules.|