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12.20.21

2022 Legislative Guide

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Jane Drummond

Jane Drummond

General Counsel and Senior Vice President of Governmental Relations

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  • Advocacy
  • State Legislation

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advocacy guide legislative report

The 2022 Legislative Guide summarizes MHA’s positions on anticipated state legislative issues.

The guide identifies critical advocacy agenda items for the upcoming session and can be used to support and inform hospital-based advocacy efforts at the state level. A printable Legislative Guide is available.

VIEW THE GUIDE

PRESIDENT’S LETTER

MHA’s 2022 Legislative Guide reviews key health issues and MHA’s advocacy priorities for the 2022 state legislative session. After multiple successes in influencing “what” is happening, our work largely turns to “how” things will progress related to COVID-19 response, Medicaid policies and many other priority areas.

The session begins Wednesday, Jan. 5, and ends Friday, May 13. During that time, the Missouri General Assembly will debate many legislative proposals. MHA will be fully engaged with its members to accomplish the following.

  • promote full funding of Medicaid coverage for both expansion and regular enrollees, and improve Medicaid payment systems
  • use federal pandemic relief funds from the American Rescue Plan Act to benefit hospitals’ workforce and other needs
  • improve laws governing behavioral health treatment, the Time Critical Diagnosis program and insurance coverage of specialty drugs
  • block the adverse proposals expected to be debated by legislators

We look forward to working with legislators, members of the administration and you, our members, to achieve our mission — to create an environment that enables members, hospitals and health care systems to improve the health of their patients and communities.

 

medicaid

 

MEDICAID

FUNDING MEDICAID EXPANSION

State legislative action on Medicaid expansion in 2022 follows the trajectory set in 2021. Following the voters’ approval of an expansion authorization in August 2020, Gov. Mike Parson included funding for expansion costs in his January 2021 budget recommendations. The General Assembly did not explicitly fund expansion costs in the state budget beginning July 1, 2022, but it did set aside $1 billion distributed among two “Stabilization Funds” assigned to the MO HealthNet Division, the state Medicaid agency. The legislature’s action led Parson to halt expansion implementation, inciting the inevitable litigation to resolve constitutional questions surrounding Medicaid expansion and its funding. In July, the Missouri Supreme Court unanimously ruled that: (1) Missouri state government must provide expansion coverage; and (2) costs will be paid from current Medicaid appropriations, which don’t differentiate expansion from regular coverage. Expansion enrollment began Oct. 1, 2021.

The Medicaid budget for the current state fiscal year has enough spending authority to cover the “regular” Medicaid enrollees but not the new expansion enrollees. The General Assembly will need to authorize additional spending authority in the spring of 2022.

There is plenty of money to fund and sustain the ongoing costs of Medicaid expansion in 2022 and beyond. The following MHA infographic shows how state legislators already have set aside $500 million in federal funds in a Medicaid Stabilization Fund and $500 million more in a Budget Stabilization Fund. Both funds are assigned to the Medicaid agency. In addition, Missouri is receiving $550 million a year for two years in federal incentives for states to implement expansion. Also, the state enjoys a historic budget surplus fueled by federal pandemic relief funding.

The infographic shows how these stabilization and expansion incentive funds are sufficient to cover the state’s cost of Medicaid expansion through May 2030.

Legislative action to provide this additional spending authority for the current fiscal year will be part of the supplemental appropriations process used to address shortfalls in the state’s budget. With ample funding available, the legislature simply needs to enact specific authorization to expend money from a state fund to pay the added Medicaid costs associated with expansion.

During the 2022 legislative session, the General Assembly also will craft a state budget for the fiscal year beginning July 1, 2022. It needs to include sufficient spending authority to provide the expansion coverage set forth in the state constitution.

MEDICAID PAYMENT

A perennial legislative priority for MHA is to ensure sufficient appropriations for Medicaid hospital services. The task encompasses allocating enough funding to cover projected hospital services for the year, as well as scrutinizing how the hospital provider tax — the Federal Reimbursement Allowance, or FRA — is being used to support Medicaid payments to hospitals. In 2021, the General Assembly reauthorized the FRA through Sept. 30, 2024, ending the recent practice of annual legislative renewals of the FRA.

The legislative appropriations process for Medicaid hospital services will require special scrutiny if MHD follows through with its plans to “rebase” Medicaid hospital payments so that they are based on more recent Medicaid cost reports. The change does not require legislative authorization but would have budgetary implications. Also, rebasing largely would eliminate the Medicaid out-of-state payment stream that is vital to some hospitals and so would require a concurrent repurposing of those funds.

An MHA infographic illustrates how available funding assures long-term financial stability for Medicaid expansion.

view the infographic

CREATING BETTER MEDICAID SYSTEMS

Value-Based Payment

It is unclear that work to develop proposals to implement value-based payment standards into the Medicaid program will be completed in time to be incorporated into the 2022 legislative session’s budgetary or statutory proposals. However, MHA and its members will continue the process of reviewing and refining options. The process began in the summer of 2021 at the direction of the MHA Board of Trustees. As proposals develop, MHA will advocate for Medicaid value-based payment changes consistent with the board’s expectations.

Medicaid Managed Care Standards

In 2022, MHA will promote legislation to require that state changes to Medicaid managed care payment standards be authorized by regulation. MHD’s past practice has been to implement many of these new policies through revisions to the vendor contracts between MHD and the three Medicaid managed care plans. This bypasses the process set forth in state law for publication, review, comment and possible revision of changes to state regulations. Current state law requires that the details of Medicaid payment changes be spelled out in state regulations. The legislation simply will reiterate that this standard applies to Medicaid managed care.
The premise underlying this legislation is the basis for MHA’s pending litigation challenging MHD’s attempt to use vendor contract revisions to implement Medicaid directed payments. The policy addresses how Medicaid payments to hospitals flow through the Medicaid managed care plans.

Coverage of Medically Complex Children

MHA will work to secure state legislative authorization to implement the federal Advancing Care for Exceptional Kids Act for coordinating the care of medically complex children. The federal ACE Kids Act was enacted by Congress in 2019. It gives states the option of providing coordinated care through specially designed health homes for children with medically complex conditions. States that do so received enhanced federal funding.

A medically complex child has at least one chronic condition that impacts three or more organ systems and severely reduces cognitive or physical functioning. The child requires medication, durable medical equipment, therapy, surgery or other treatments. Children with a life-limiting illness or rare pediatric disease also are considered to be medically complex.

Special health homes would allow providers to streamline care and improve outcomes for children at a lower cost. Using case managers to help families navigate the health care system, these health homes can reduce the burden of bureaucracy on families.

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AMERICAN RESCUE
PLAN ACT

The American Rescue Plan Act is a federal law enacted in 2021. Its components include significant pandemic relief funding for state and local governments. Missouri is slated to receive $2.69 billion, with Missouri counties receiving $1.19 billion and 15 cities in federally designated metropolitan areas receiving $831 million. Distribution of funds to smaller cities will be administered by state government from its allotment. The total outlay for Missouri from the Coronavirus State and Local Government Fiscal Recovery Fund is $4.71 billion.

Unlike some other states, Missouri intends to postpone distribution of these funds so that it can be directed by appropriations enacted during the 2022 state legislative session. Engaging with its membership in preparing for the debate, MHA has identified the following priorities.

  • Staffing and workforce assistance, including the significant cost of personnel through staffing agencies, as well as resources to support recruitment retention and address workplace mental health challenges.
  • The need to expand community access to mental health treatment, reducing pressure on hospitals to act as the default treatment setting for an overburdened behavioral health system.
  • Funds to complete refurbishment of hospital ventilation systems.
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EXPANDING OPPORTUNITIES FOR HOSPITALS

MENTAL HEALTH

Institutions for Mental Disease Waiver

A federal Institutions for Mental Disease waiver would permit MHD to provide federally subsidized Medicaid coverage to nonelderly adults in IMDs, which are facilities with more than 16 beds that primarily serve behavioral health patients. Without a waiver from the Centers for Medicare & Medicaid Services, such coverage is barred by federal standards. The General Assembly previously enacted budgetary authorization to pursue and fund the initiative. The waiver application has been written by the Missouri Department of Mental Health, with support from MHA. MHA will be working with legislators and other state officials to ensure that the waiver will be implemented no later than July 1, 2022.

Boarding of Mental Health Patients

In the 2021 legislation, hospitals succeeded in securing a $2 million appropriation to offset the uncompensated costs of caring for developmentally disabled patients who are medically ready for discharge but lack post-discharge placement options. Also, MHA was successful in promoting passage of a 2021 law obligating the Division of Children’s Services to pay hospitals for boarding children in its custody who also lack appropriate post-discharge options. In 2022, MHA will seek enhanced funding to ensure it is sufficient to meet the expected demand.

MHA also developed legislation to help identify and find solutions for the causes of patient boarding among the developmentally disabled and foster children with behavioral health needs. Patient outcomes and employee safety are primary concerns. While funding to offset uncompensated board costs is appreciated, the best outcome is timely placement of patients in an appropriate post-discharge setting.

Civil Detention of Mental Health Patients

MHA will advance legislation that streamlines the process for civil detention, which is the legal process by which a person with a mental disorder can be detained for evaluation and treatment if there is a likelihood of serious harm to the person or others.

Any adult person may allege under oath that civil detention is necessary. Current practice requires applications for civil detention to be notarized, but these applications often happen at odd hours. The notarization requirement leads to a delay in evaluation and treatment of the mentally ill, which can be dangerous for patients, their loved ones or others. MHA will advocate for legislation to eliminate the notarization requirement. The legislation would not affect the crime of perjury for those falsely swearing under oath in an application for civil detention.

TIME CRITICAL DIAGNOSIS

MHA again will be advocating for legislation to alter the state’s Time Critical Diagnosis System. The legislation nearly passed in the 2021 legislative session, and MHA is optimistic about its prospects in 2022. The TCD system is designed to provide timely and appropriate emergency medical treatment for people who suffer trauma, stroke and the potentially fatal form of heart attack known as STEMI (ST-segment elevation myocardial infarction).

MHA engaged with its members to clarify their preferences regarding TCD laws and regulations. Based on those discussions, MHA supports the creation of a TCD advisory committee and removal of duplicative peer review requirements for TCD. MHA will be advocating to ensure that hospitals have a stronger voice on TCD standards, that the TCD system is a voluntary system where no data is required to be collected from nonparticipants, and that funding for the administration of the TCD system, including surveyor costs, is preserved.

ENSURING PATIENT ACCESS TO SPECIALTY DRUGS

White bagging is an emerging insurer requirement that requires certain medications be purchased through specialty pharmacies, often owned by the insurance company, instead of the patient’s preferred local health care provider. The practice can be devastating for patients with multiple sclerosis, cerebral palsy, cancer, rheumatoid arthritis and several other conditions. Coverage of their treatment drugs is considered out-of-network if they are dispensed by a pharmacy at a local health care provider. Instead, patients are obligated to use a distant insurer-mandated pharmacy.

White bagging places a bureaucratic, unnecessary and wasteful step between the patient and the provider. But more importantly, it is dangerous for patients because drugs are obtained outside the normal medication safety mechanisms, and delays in medication administration can significantly affect patient health.

In a recent survey by health care consulting firm Vizient, Inc., 83% of hospitals said that specialty medications delivered to them for patient administration through white bagging did not arrive on time, and another 66% of hospitals said that they have received the wrong dose.

In the 2022 legislative session, MHA will advocate for legislation that prohibits insurers from discriminating against providers, patients and pharmacies who refuse to participate in white bagging arrangements.

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WORKFORCE

Hospitals have been on the front line of the pandemic and have provided care in extraordinary circumstances. The shortage in our workforce — which was significant before the pandemic — is now a crisis.

NURSING FACULTY

In addition to pursuing workforce enhancement initiatives through the American Rescue Plan Act funds, MHA is promoting proposals to expand the supply of nurses. A shortage of nursing faculty means that schools turn away qualified applicants. This shortage is acute. A Missouri State Board of Nursing 2020 annual report for the 90 Missouri prelicensure nursing programs indicates there are at least 45 unfilled full-time and 44 open part-time/adjunct nurse faculty positions. The number of qualified applicants who are turned away is staggering. In 2020, there were 1,296 qualified applicants turned away. (In some cases, an applicant may have been double counted because of applying to multiple schools.) According to the nursing report, an additional 87 full-time faculty positions are necessary to educate all the qualified applicants.

MHA will work to secure state funding to enable expanded capacity to train registered nurses and other practitioners in shortage, including full funding of a current nursing faculty grant program administered by the State Board of Nursing. This is not a solution to immediate workforce needs but is an investment that will reap longer-term dividends as hospitals address future pandemics and workforce challenges.

ENHANCING WORKFORCE FLEXIBILITY

Advanced Practice Registered Nurses

Advanced practice registered nurses are a vital part of the provision of high-quality health care. In response to the pandemic, various practice restrictions on APRNs were waived, including the requirement that an APRN practice with the collaborating physician who is continuously present for at least a month before practicing in a setting where the collaborating physician is not continuously present. Another waiver temporarily removed a geographic proximity limitation for the use of telehealth by APRNs outside of a rural area. These waivers have been vital to the provision of health care during the pandemic response and have shown the advantages of more flexible standards. During the 2022 session, MHA will support legislation to permanently remove these restrictions.

MHA also will support legislation to give APRNs greater authority to deliver health services under the auspices of a collaborative practice agreement with a physician. Missouri state law is more restrictive than most other states in this regard, which creates an incentive that runs counter to Missouri’s efforts to promote a robust workforce. APRNs trained or practicing in Missouri know they can leave Missouri to practice with greater autonomy in many other states, including the states bordering Missouri.

Interstate Medical Licensure Compact

Previously, MHA supported successful efforts to authorize Missouri’s participation in interstate licensure compacts for nurses, physical therapists, psychologists and emergency medical services personnel. These compacts promote expedited licensure of practitioners in participating states. In 2022, MHA is supporting a similar interstate licensure compact for physicians. The compact is expected to streamline and speed up the process of securing licensure approval between states, as well as expand telehealth capacity.

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PLAYING DEFENSE

Legislation detrimental to hospitals is filed every legislative session. A significant and occasionally predominant part of MHA’s advocacy effort is to block these proposals. The last two sessions have seen a notable increase in these adverse proposals. This almost certainly was associated with reaction to the Medicaid expansion ballot measure. The aftereffects are expected to continue into the 2022 legislative session. The potential list of “bad bills” is extensive, but the following are a few proposals MHA anticipates in 2022.

HIGH-DEDUCTIBLE HMO COVERAGE

MHA expects the return of legislation affecting high-deductible coverage offered by health maintenance organizations. It would unwind a compromise between insurers and providers made in the 2013 legislative session. That compromise expanded the ability of health insurers to market HMO high-deductible insurance products but only if they were linked to fully funded health savings accounts so that health care providers could be assured of a source of payment for the deductible costs. The legislation was promoted by insurers and state insurance regulators.

HOSPITAL VISITATION POLICIES

Based on regulatory guidance, many hospitals were closed to visitors at the beginning of the COVID-19 pandemic. There was limited knowledge about the spread of COVID-19, and it was an extremely difficult time for hospitals as personnel and supplies were in short supply. Many hospitals implemented phone calls and Zoom sessions to allow families and visitors to engage with patients. As the pandemic subsided, hospital visitation policies were relaxed, and then the Delta variant caused a resurgence. Today, the focus is on resources, and protecting and keeping the workforce safe to continue providing care. Almost all, if not all, hospitals are open to visitors for end-of-life, pediatric and special needs patients. MHA is opposed to legislation that would unduly restrict hospital patient visitation policies and limit their ability to ensure the safety and security of staff and patients.

CONCEAL AND CARRY IN HOSPITALS

MHA opposes legislation that would allow concealed carry permit holders from Missouri or another state to bring their weapons into publicly accessible areas of a hospital. Currently, only security personnel and law enforcement can be armed within a hospital. The legislation would exacerbate demands on hospital security in their work to deescalate volatile situations in hospital settings. It is unclear how the bill would apply to patients with firearms who may temporarily be drugged or otherwise incapacitated. Also, some hospitals have invested significant sums in metal detectors and staff to keep firearms out of the buildings. Hospitals have suggested that allowing weapons into hospitals may encourage practitioners to practice in other states. It is not clear who would care for Missouri hospital patients in their absence.

COVENANTS NOT TO COMPETE

MHA will continue to oppose legislative proposals that would limit hospitals’ ability to use covenants not to compete in physician employment contracts. Hospitals use these contractual agreements when recruiting a new physician to a practice or community. They ensure that the hospital has a reasonable period to recover the significant investment required to recruit and place the physician and develop the practice. In accordance with court rulings, these contractual restrictions rarely last more than two years and often include the opportunity for the physician to “buy out” the covenant not to compete.

CERTIFICATE OF NEED APPROVAL

In the 2021 legislative session, proposals were filed in the House and Senate to repeal state laws requiring Certificate of Need approval for new hospitals and the acquisition of a single piece of medical equipment costing more than $1 million. Historically, MHA has opposed repeal of the CON laws but has supported certain modifications to them. In previous years, legislation was filed that would change the process by which CON decisions are made. For example, one bill would have replaced the legislator members of the Missouri Health Facilities Review Committee with gubernatorial appointees and prohibit ex-parte communications in the CON review process. MHA did not oppose these changes.

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