By Robert A. Holden, Esq., Senior Vice President
While paraphrasing Homer Simpson’s comments on alcohol may not be the most complimentary way to address implementation of federal health care standards at the state level, it may be the clearest way to relate the conflicting pressures on state officials trying to utilize federal evidence-based standards and other federally sourced information in the implementation of their own state programs. Certainly adapting federal legislation and regulation into use at the state level is nothing new. Nevertheless, the volume of information consumed by state regulators and the increased engagement of state officials in so many facets of health care delivery and reimbursement mean that federal determinations have a much greater chance of being applied in ways that can cause unintended results. In an era of limited state budgets, using valuable evidence-based determinations from federal sources can solve a number of legitimate short- and long-term regulatory needs. We have experienced firsthand the challenge of communicating the limitations of utilizing those policies in state programs as we have advised and assisted clients addressing the advocacy challenge.
An increasingly common and clear example of this issue is the application of Medicare standards in state workers’ compensation fee schedules. Appreciating the tremendous volume of work needed to develop fee schedules for medical services, products and procedures has led a number of states to adopt the resource‐based relative value scale (“RBRVS”) utilized by the United States Department of Health and Human Services Centers for Medicare and Medicaid Services (CMS) in Medicare fee schedules as a component of state regulated workers’ compensation fee schedules. Developing an independent fee schedule as comprehensive as that produced by CMS would substantially challenge the administrative budget of any state program. Even with this administrative economy, utilizing pricing and reimbursement structures appropriate for one program may cause a number of specific problems in another program. While it may be appropriate to utilize fewer diagnostic procedures in age-related issues, those procedures may be vital in traumatic workplace injury.
Similarly, states have adopted federal certifications to participate in Medicaid or Medicare as a convenient way to qualify health care vendors in state programs, or simply for participation in the health care services market at all. Be it licensure of a specific provider or receipt of a certificate of need, regulators are grateful rightfully for generally acceptable standards available at the federal level. When those standards do not fit the health care vendors and providers seeking to serve a specific market, access to care suffers.
State regulators will look increasingly to information and guidance from federal agencies for reimbursement factors, certification of providers and for treatment protocols. This information may be further magnified in specific states by medical technology assessment programs, as in Washington State and Oregon. Regardless, the advocacy challenge will be to direct regulators’ attention to focus on the gaps in adoption of these standards. We have worked with our clients to identify partners so that they collectively can promote administrative urgency in addressing these gaps. Nationally, new coalitions of providers, networks, pharmaceutical and device manufacturers have coordinated their messages on a specific population or disease state. Identifying and joining these coalitions will be critical as these issues emerge.