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| Montana Administrative Register Notice 37-966 | No. 24 12/23/2021 | |
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BEFORE THE Department of Public health and human services of the STATE OF MONTANA
TO: All Concerned Persons
1. On October 22, 2021, the Department of Public Health and Human Services published MAR Notice No. 37-966 pertaining to the public hearing on the proposed amendment of the above-stated rule at page 1364 of the 2021 Montana Administrative Register, Issue Number 20.
2. The department has amended the above-stated rule as proposed.
3. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
Comment #1: The department received a comment from the Montana Optometric Association (MOA) expressing concerns related to the resource-based relative value scale (RBRVS) rate calculations. MOA states they disagree with the department's proposed implementation of the legislatively appropriated 1% provider rate increase for optometric providers. They assert the department has provided no explanation or justification for the decrease of the "optometric services policy adjustor" rate variable.
Response #1: The department does not use an optometric service policy adjustor; the department assumed the commenter is referencing the optometric services provider rate of reimbursement. Within the statement of reasonable necessity for MAR Notice No. 37-966, the department details the relationship between the RBRVS rate variables used in calculating optometric service rates and how eliminating the evaluation and management policy adjustor resulted in an additional decrease to the optometric services provider rate of reimbursement.
The legislatively directed 1% increase is achieved by factoring in all optometric services that are billed. As such, some individual services may see more or less than 1% change in reimbursement. This is not new; the department has used this method to achieve similar legislatively directed rate changes for reimbursement of other health care services. This process has been used in every year since the establishment of the RBRVS system of reimbursement for health care services, including optometric services.
The changes to the rate variables must be considered together when determining a provider rate of increase. A rate variable cannot be viewed in isolation to determine if the 1% provider rate increase is achieved. Below is a demonstrative example of how the proposed rate variables within both MAR Notice No. 37-944 and MAR Notice No. 37-966 result in an overall in aggregate approximate 1% provider rate increase for optometric services. The calculations walk through step by step the impact of each rate variable. Note the impact percentage change for the policy adjustor is calculated based on the utilization case mix for optometric service providers. For demonstration purposes, the example uses $100 as the starting SFY 2021 optometric services expenditures. The $100 represents a hypothetical annual total expenditure for optometric services.
The above tables demonstrate that both MAR Notice No. 37-944 and MAR Notice No. 37-966 provide for a provider rate increase percentage of approximately 1% for optometric services. Rounding related to each rate variable can result in the calculated total percentage change slightly above or below the 1% target.
During the August 9, 2021, Children and Family Health and Human Services Interim Committee meeting, the department made a presentation on the relationship of RBRVS rate variables and a final reimbursement rate. This document can be found here: https://leg.mt.gov/content/Committees/Interim/2021+2022/Children+Families/Rules/aug2021+dphhs+response+to+mar+37+944+949+questions.pdf.
Comment #2: The MOA stated it requested the numbers and calculations used to arrive at the adjustments, demonstration of whether the proposed rates constituted a rate increase or decrease, and why optometric service providers were singled out from the department and stated that it did not receive this information. The MOA states that information that was provided did not demonstrate a rate increase.
Response #2: On September 29, 2021, the department met with representatives of the MOA and several optometric service providers to discuss the department's process for calculating rates. During this meeting, the department's expert in reimbursement explained the rate calculations and demonstrated that the proposed rates represent an aggregate increase in reimbursement for optometric services. Following the meeting, the department emailed the spreadsheet used to demonstrate the rate calculations and 1% provider rate increase to the meeting participants. The department received no comments or questions from the MOA or the individual providers attending the meeting after the spreadsheet was provided.
Contrary to the MOA's comment, the spreadsheet demonstrates the optometric services reimbursement factors proposed in both MAR Notice No. 37-944 and MAR Notice No. 37-966 achieve the rate increase directed by the legislature. The spreadsheet contained both a weighted average analysis and a direct comparison of the January 2021 and the proposed July 2021 optometric services fee schedule. The below table displays the percentage change of the top six most utilized codes for optometric services, when comparing the posted January 2021 fee schedule to the proposed July 2021 fee schedule. These services accounted for approximately 91% of the total optometric services reimbursement during SFY 2021.
The department disagrees with the contention that optometric providers are being singled out. Optometric service providers receive a provider rate of reimbursement above 100%, meaning they receive an additional reimbursement factor. This year, the RVUs for optometric services increased by an amount greater than the appropriated provider rate increase, meaning the department needed to decrease the optometric services provider rate of reimbursement to ensure optometric service providers did not receive a provider rate increase above the legislatively appropriated amount.
Comment #3: The MOA submitted a comment stating the department failed to provide any explanation or information to demonstrate that the combination of the increased allied services conversion factor and decreased "optometric services policy adjustor" results in a rate increase, or any particular amount of rate increase, for optometric services. The comment also states the department failed to provide any rational explanation to the numbers or methodology used.
Response #3: The department does not use an optometric service policy adjustor; the department assumed the commenter is referencing the optometric services provider rate of reimbursement. The department has explained the correlation between the conversion factor, relative value units, and the optometric services provider rate of reimbursement. Each proposed MAR notice has provided a consistent explanation of the 1% provider rate increase, and the corresponding optometric services provider rate of reimbursement decrease. This was done because of the increase of the applicable RVUs and allied services conversion factor. For additional explanation, please see the response to comment #1.
Comment #4: The department received comments stating the department fails to comply with the legislative appropriations and applicable law. They cite a statute in Title 37, MCA, and assert optometrists should be reimbursed equal to the amount paid to medical doctors and doctors of osteopathy, whose reimbursement the Montana legislature has directed to be paid pursuant to 53-6-125, MCA.
Response #4: As the commenters are aware, this assertion is the subject of a lawsuit filed in state district court and will be resolved through that process. Additionally, the 2021 Legislature was aware of the lawsuit filed by Montana optometrists and chose not to appropriate additional funds to the department and did not direct the department to reimburse optometrists on par with medical doctors and doctors of osteopathy.
Comment #5: The MOA states their analysis of the proposed fee schedule reflects a very significant decrease in reimbursement for many codes.
Response #5: The department agrees that some codes do show a rate decrease, but there are also numerous codes with a rate increase greater than 10%. Individual service codes cannot be viewed in isolation. RBRVS provider rate increases are calculated as demonstrated in the tables provided within response #1.
Comment #6: The MOA submitted a comment stating the department has not provided any rational explanation of why the removal of the evaluation and management policy adjustor required a further decrease to the "policy adjustor for optometric services."
Response #6: The RBRVS reimbursement methodology uses several rate factors when determining reimbursement: a conversion factor, relative value units, provider rates of reimbursement, and policy adjustors. The department does not use an optometric service policy adjustor; the department assumed the commenter is referencing the optometric services provider rate of reimbursement. When the evaluation and management (E&M) policy adjustor was proposed, its decrease impacted the optometric services provider rate increase. When the E&M policy adjustor was eliminated, the optometric services provider rate of reimbursement needed to decrease to account for the increased reimbursement associated with evaluation and management codes. This calculation is demonstrated in the department's first response in this notice.
Comment #7: Several comments were received expressing concern about a potential claims payment delay associated with manually processing optometric service claims. Commenters cite that federal Medicaid regulations (§ 447.45 Timely claims payment) require that Medicaid must provide payment on 90% of clean claims within 30 days and 99% of clean claims within 90 days.
Response #7: When the proposed optometric service provider rate increase was removed from the adoption of MAR Notice No. 37-966, the department had no choice but to manually price all optometric service claims at the January 2021 fee schedule. Due to system limitations, the Medicaid Management Information System (MMIS) cannot systematically exclude optometric service claims from the July 1, 2021 RBRVS update and process them under the January 1, 2021 codes and rates, through standard claims processing. To accommodate the system limitations and to price all optometric service claims with a date of service on or after July 1, 2021, pursuant to January 1, 2021's optometric services fee schedule, optometric service claims were placed in a queue for manual processing. Claim processing for optometric service providers was delayed for three payment cycles, as the department worked with its fiscal agent, Conduent, on the most efficient and accurate method to price optometric service claims under January 1, 2021's optometric services fee schedule. During the three cycles, some claims were paid, but not a majority. As soon as it was efficient, manual pricing and claims special processing methodologies were identified and implemented. Conduent has worked diligently on ensuring optometric claims are priced and paid with minimal delays. Some delay is inevitable as manual pricing and special claims processing requires numerous people to work each claim manually, rather than being able to process each claim using the electronic claim processing system. Despite the manual intervention, the department is well within the timely claims payment requirements found in 42 CFR 447.45. As of the November 22, 2021 payment cycle, the department has received 8,270 claims requiring manual pricing. Of those claims, 8,230 (99.52%) were processed within 30 days of receipt, and 40 (0.48%) were processed after 30 days but before 90 days.
Comment #8: The department received a comment that included three diagrams. Two of the diagrams compared the department's provider rates of reimbursement to Medicare's, and the third diagram compared optometric provider rates to physician rates. The commenter asserted that the comparisons demonstrate optometrists are discriminated against and are receiving a decrease in reimbursement.
Response #8: The department does not find the diagrams comparing provider rates of reimbursement submitted by the commenter to be demonstrative of the entire reimbursement process. Their first diagram compares Medicare's provider rates of reimbursement for physicians, mid-levels, and optometrists to Medicaid's. This is not an accurate picture of total reimbursement because the provider rate of reimbursement is only one part of the rate calculation.
The second diagram provided does not include values and labels for the x or y-axis. This diagram cannot be evaluated by the department without these essential components.
The third diagram compares reimbursement rates for medical doctors/doctors of osteopathy to optometric rates. The different reimbursement rates for these providers is the subject of a lawsuit filed in state district court, and whether such rates should be different will be resolved through that process. Additionally, the 2021 Legislature was aware of the lawsuit filed by Montana optometrists and chose not to appropriate additional funds to the department and did not direct the department to reimburse optometrists on par with medical doctors and doctors of osteopathy.
Comment #9: A commenter asked why optometrist reimbursement rates are decreasing while all other providers who are eligible for the same services remain stable.
Response #9: This is not an accurate statement. As demonstrated in responses #1 and #2 of this adoption notice, the department met legislative intent of providing for a provider rate increase of 1% for optometric services.
4. The department intends to apply these rules retroactively to July 1, 2021. A retroactive application of the proposed rules does not result in a negative impact to any affected party.
/s/ Brenda K. Elias /s/ Adam Meier Brenda K. Elias Adam Meier, Director Rule Reviewer Public Health and Human Services
Certified to the Secretary of State December 14, 2021.
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