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Testimony on Medicaid Upper Payment Limits by Timothy Westmoreland,
Director, Center for Medicaid and State Operations, Health
Care Financing Administration, U.S. Department of Health and
Human Services
Before the Senate Finance Committee
September 6, 2000
Chairman Roth, Senator Moynihan, distinguished Committee
members, thank you for inviting us to discuss concerns we
share regarding States=
use of Medicaid upper payment limits. As you know, some States
are using the flexibility in setting the maximum rates that
can be paid to Medicaid providers -- the so-called upper payment
limits -- to obtain Federal matching funds in ways that are
inconsistent with the intent of the Medicaid statute. Some
States are using these matching funds for worthy purposes,
such as supporting public hospitals and other health care
programs. While these other programs are laudable, some are
not eligible for federal Medicaid funding. In other States,
it is unclear what the money is used for, and in some cases
it appears to be going for programs that are unrelated to
health care.
The HHS Inspector General=s
findings on this are troubling. In all States engaged in these
practices, the Federal funds are being obtained without the
statutory State matching contribution, and without the accountability
that is essential in all public programs. The five-year cost
of this growing State practice is likely to be in the tens
of billions of dollars, and there is an influx of new State
proposals.
Existing regulations never anticipated these abuses. To end
these abuses, we must issue a proposed regulation that will
modify the current upper payment limits for non-State public
facilities, thereby limiting the accounting maneuvers that
have allowed States to questionably obtain federal matching
funds. To help States adjust and prevent potential adverse
impact on health care programs, there will be adequate transition
provisions to phase in the new policy. We will also take into
account the need to assure that public hospitals can continue
to meet their mission of serving Medicaid and uninsured patients.
The proposed regulation will be open for public comment.
And we want to work with States, beneficiary groups, providers,
the HHS Inspector General, the General Accounting Office,
and this Committee as we proceed to ensure that federal funds
are used in accordance with the letter and the intent of the
law, and that reasonable accommodations are made to help States
adjust to necessary policy corrections.
Background
Under current Federal regulations, States have great flexibility
in setting the Medicaid rates that they pay to nursing homes,
hospitals, and other providers. These regulations establish
that States may pay facilities a total amount up to the level
that Medicare would pay for the same services, group facilities
together in calculating this upper payment limit (UPL), and
pay some facilities more than others. This has allowed States
to recognize that some public facilities have higher operating
costs due to patient populations that are sicker and more
likely to have no health care coverage at all.
However, it appears that some States are:
- calculating the UPL that, in theory, could be paid to
each Medicaid facility;
- adding these amounts together to create excessive payment
rates to a few county or municipal facilities;
- claiming Federal matching dollars based on these excessive
payment rates; and then
- directing these county or municipal facilities to transfer
large portions of the excessive payments back to the State
government, with many States allowing their county-owned
providers to keep less than five percent of the Federal
funds that are used to provide these excessive payments.
This is not consistent with the intent of the Medicaid statute
that specifies that provider payments must be economic and
efficient and for Medicaid-covered services.
The practical outcome is that the States using this financing
mechanism actually gain Federal matching payments without
any new State financial contribution. In fact, through these
practices, it is possible for a State that should receive
$1 in federal funds for every State dollar spent on Medicaid
to instead receive $5 or more in federal funds for every State
dollar spent. In addition, if a State requires county or municipal
facilities to refund its own Medicaid contribution, the practice
also effectively undermines the requirement that a State share
in the funding for its Medicaid program.
Moreover, this practice appears to be creating rapid increases
in Federal Medicaid spending, with no commensurate increase
in Medicaid coverage, quality, or amount of services provided.
There is preliminary evidence that this current practice has
contributed to a spike in Federal Medicaid spending. The States=
estimates of Federal Medicaid spending for FY 2000 have already
increased by $3.4 billion over earlier projections. Assuming
additional States come forward with State plan amendments,
the five-year cost of this growing State practice can bein
the tens of billions of dollars. Currently, 19 States have
approved plan amendments and 14 have pending amendments (for
a total of 28 states because some haqe both pending and aproved
amendments), This could have the long-term effect of undermining
the core mission and the broad-based support for Medicaid,
which guarantees critical health services to our most vulnerable
populations: low-income children and families, people with
disabilities, and the elderly.
The excess Federal Medicaid payments that are shared with
State and local governments are put to any number of uses--both
health- and non-health-related. It appears some States allow
public hospitals to keep a portion of these funds to help
pay for uncompensated care. While the Medicaid disproportionate
share hospital (DSH) program was created to cover these costs
and now accounts for more than $14 billion annually in total
Medicaid spending, the DSH program has not always met the
growing challenge of caring for the uninsured. Some States
have, through the UPL arrangement, circumvented the statutory
DSH limits--using indirect means to accomplish what the DSH
statute does not allow.
Other States are using these payments to pay the statutory
State share of Medicaid or of the State Children's Health
Insurance Program (SCHIP). While Medicaid and SCHIP are Federal/State
partnerships in which each partner pays a share established
in statute, the UPL arrangements shift a portion of a State's
share to the Federal government. The result is that Federal
taxpayers in all States are forced to shoulder more than their
share for Medicaid and SCHIP in a few States.
Still other States are using the UPL arrangement to finance
other health programs beyond Medicaid and SCHIP. This results
in Medicaid funding being used for otherwise laudable health
care purposes, but for people and/or services not eligible
for Medicaid coverage.
Other reports suggest that some States have gone so far as
to use -- or intend to use -- the UPL arrangement for non-health
purposes.
- Several States appear to have used it to fill budget gaps.
- Another State's local newspaper reported that Federal
Medicaid funds would be used for State tax cuts or for reducing
State debt.
- One State announced that it intended to use funds generated
through the UPL system to pay for education programs.
These practices, which are effectively general revenue sharing,
are inconsistent with the Medicaid statute, Congressional
intent, and Administration policy. However, we lack authority
under existing regulations to deny State proposals to engage
in these arrangements. Furthermore, significant public policy
should be made through an open public process. The HHS Office
of Inspector General and General Accounting Office have both
looked into this and are reporting on some of their findings
here today.
We sent a letter to States in July describing all these concerns
and giving notice of our intention to act to stop this inappropriate
use of Federal funding. States and hospitals have, understandably,
expressed concern about the impact on other health care programs.
We share these concerns, and are committed to both ending
inappropriate use of federal funds and establishing appropriate
transition provisions to help States adjust to necessary policy
changes.
Proposed Regulation
We will shortly issue a proposed regulation to address these
concerns. The proposed rule will create some type of separate
reimbursement limits for non-State public facilities. States
will no longer be able to pool amounts for both private and
non-State owned public facilities and claim the total of that
pool for federal matching funds. Recognizing higher costs
incurred in public hospitals, we will include provisions to
ensure adequate reimbursement rates for these facilities.
To help States adjust, we will make a gradual transition
to the new policy. Specifically, we anticipate a multi-year
transition that would not affect any State with an approved
UPL policy in 2001. We will solicit comments on our proposed
changes to the UPL policy, as well as the transition provisions,
and we are open to other courses of action that will accomplish
the same goals set out in the proposed rule.
We understand that change will be difficult--just as it was
in the early 1990's when the Federal/State financing relationship
had to be re-adjusted because of now illegal State funding
mechanisms of donations and taxes. We will specifically solicit
comments on proposed transitional periods to address this
reliance.
Other Efforts
The Administration is committed to supporting health care
providers who serve the uninsured and chronically ill and
to assuring that they can continue to do so. The President=s
budget includes more than $100 billion over 10 years to expand
health insurance to the uninsured. These funds would reduce
the uncompensated care in public hospitals. It also includes
a long-term care initiative and Medicare and Medicaid provider
payment restoration initiative that explicitly targets funding
to nursing homes and hospitals, which will also help institutions
directly. We have urged the Congress to pass this initiative
this year.
CONCLUSION
The Medicaid program has been successful over the years in
providing vital health care services to millions of low-income
Americans. It will continue to be successful only to the extent
that it adheres to that mission and ensures that the funds
provided are used appropriately and that the program retains
its integrity. The program will enjoy public support only
if it maintains public trust.
We appreciate the need to proceed with caution in addresing
UPL abuses in order to ensure that there is no adverse impact
on worthy but now improperly funded health care programs.
But we also understand the need to act decisively to ensure
that Federal funds are spent in accordance with the law. I
thank you for holding this hearing, and I am happy to answer
your questions.
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