Leading health authorities have increasingly emphasized how non-medical factors such as socioeconomic status, education, employment, housing, food security, and community support have an outsized impact on health outcomes. By some recent U.S. estimates, clinical care accounts for only 20% of county-level variation of health outcomes in the United States, with the social determinants of health (SDOH) responsible for as much as 50%. SDOH are now widely acknowledged as critical not only to improving individual health and population health, but also to meeting federal health equity goals. Yet conventional models of health care delivery still struggle with interventions to impact individuals’ health-related social needs (HRSN). One reason is that health plans and health care providers must look to nontraditional partnerships with organizations that have not historically been part of the health care industry to meet these needs.
We highlight three trends associated with partnerships to address HRSNs:
- Medicaid and Medicare health plan initiatives;
- Local and regional data sharing efforts; and
- Risk mitigation in collaborations between health care providers and community partners.
Health care providers and health plans involved in any of these trends — or looking to become involved — must navigate complex and interrelated reimbursement, privacy, compliance, and fraud and abuse issues. It is critical to consult with counsel when developing new initiatives targeting the SDOH and HRSNs to ensure legal concerns are evaluated and addressed.
Medicaid and Medicare Health Plan Initiatives
The Centers for Medicare & Medicaid Services (CMS) have begun to incorporate new tools to foster “whole person” care for Medicaid and Medicare beneficiaries and have implemented policies to encourage and pay for appropriate community partnerships.
Late last year, CMS published an informational bulletin discussing opportunities for states to cover services and supports to address health-related social needs in Medicaid and the Children’s Health Insurance Program. Accompanying guidance describes the authority for health plans in a state’s Medicaid managed care delivery system to cover “in lieu of services” that address HRSN. For example, “in lieu of services” may address housing and the home environment by covering a tenant’s first month’s rent, caregiver respite services, home remediations, and sobering centers, and may address nutrition needs by covering nutrition counseling and home-delivered meals. The bulletin highlights recent CMS approvals in seven states for evidence-based housing and nutritional services designed to mitigate the negative health impacts of unmet social needs. Since the bulletin was published, CMS approved New York’s section 1115 demonstration, which includes Medicaid opportunities for New York to address HRSN by covering similar housing supports, enhanced case management, nutrition supports, cooking supplies, and private and public transportation to HRSN services.
Interested parties should also consult CMS’ comprehensive 2021 guidance on SDOH opportunities in Medicaid, which trumpets Medicaid’s flexibility while cautioning that federal principles require services to be provided based on individual assessments of need, typically making Medicaid the payor of last resort (states must assess all available public and private funding streams before using Medicaid to cover unmet social needs), and require that services addressing SDOH be economic and efficient. CMS specifically identifies how state Medicaid programs may address SDOH through managed care, such as by sharing managed care savings with Medicaid beneficiaries in the form of additional health-related services, directing health plans to implement alternative payment models rewarding improvements in SDOH, offering incentive payments for health plans that make investments in SDOH, and using waiver authorities to incorporate SDOH services into the managed care contract and plan capitation rates. A 2023 CMS rule also proposed to make significant changes to Medicaid managed care authorities to cover “in-lieu of services,” and its finalization is expected later this year.
A 2023 CMS Final Rule for Medicare Advantage (MA) also addresses how MA plans may impact the SDOH. Over the last five to ten years, CMS has revised MA regulations to give health plans more discretion to cover services that compensate for physical impairments, reduce avoidable emergency room visits, and address SDOH-related needs for chronically ill enrollees. In some circumstances, MA plans may offer supplemental benefits covering non-medical services such as home-delivered meals, transportation, pest control, access to community-sponsored programs, and home modifications. These changes have allowed MA plans to take a more holistic approach and connect enrollees to interventions targeting social factors impacting their health.
Local and Regional Data Sharing Efforts Implicate Privacy Laws
Leveraging data is critical for both health plans and health care providers to identify and address HRSN. While some data may be available from public sources such as census records and community needs assessments, key information that is confidential and protected by privacy laws is likely to be controlled by health care organizations, governmental service providers, and community partners. Integrating and analyzing this information can be essential to quantify the prevalence of issues like food insecurity, housing instability, and transportation barriers. Integration across health and social service sectors also enables a comprehensive view of individuals’ needs and supports targeted interventions to high-risk populations. This makes data partnerships between health care entities and community organizations especially critical.
Efforts to collect and share data related to SDOH implicate a range of privacy laws. At the federal level, health care providers and plans must navigate the complex and ever-evolving landscape of laws such as the Health Insurance Portability and Accountability Act (HIPAA) and substance-use disorder confidentiality law (frequently known as Part 2). Many states also impose their own health information privacy laws, which may exceed the floors set by federal minimum requirements. In some cases, health care privacy restrictions must be balanced against an evolving set of federal and state legal requirements to share health information, such as the federal information blocking rule and California’s recent statewide data sharing framework. And because SDOH extend well beyond health information, other privacy laws addressing information such as education records and social services records must be considered. Addressing privacy laws may involve data use agreements, patient authorizations, de-identification techniques, and the design of physical, technical, and administrative safeguards to secure data and appropriately restrict the sharing of identifiable information.
Risk Mitigation in Collaborations between Health Care Providers and Community Partners
Health care providers and plans also need to collaborate with community partners to address HRSN by coordinating care and resources for individuals served by multiple providers and partners (who are also often high utilizers with high costs). Collaboration could involve multi-party arrangements with partners such as housing agencies, food banks, transportation services, government agencies, and social service organizations.
One legal challenge in developing such partnerships is adherence to health care fraud and abuse laws. For example, the federal Anti-Kickback Statute (AKS) and physician self-referral law (Stark) may be implicated by any exchange of remuneration, including in-kind services, between health care entities and community partners who work with Medicaid and Medicare patients.
In addition, Medicare and Medicaid anti-supplementation provisions must be considered when designing payments to incentivize the use of health care services, including non-traditional services. Health care partnerships must be carefully designed to fit within regulatory exceptions and safe harbors to mitigate these risks.
When addressing HRSN for federal health care program beneficiaries, risk mitigation may involve leveraging the recent value-based exceptions promulgated by CMS and the Office of Inspector General for the Department of Health and Human Services (OIG). Value-based exceptions can shield from AKS and Stark liability certain arrangements between partners who are jointly pursuing value-based purposes such as coordinating and managing care, improving quality of care, and appropriately reducing health care costs. As with any fraud and abuse issue, it is important to consult legal counsel and establish robust compliance safeguards.
Payor/Provider Convergence Blog Series
For additional resources on the intersection of payor/provider convergence and the issues that plague insurance and health companies, payors, and providers, click here to read the other articles in our series.
Foley is here to help you navigate the complex legal issues involved in addressing the social determinants of health. To learn more, please reach out to the authors, your Foley relationship partner, our Payor/Provider Convergence Area of Focus, or to our Health Care Practice Group with any questions.
