OAR 410-141-3735: Social Determinants of Health and Equity; Health Equity

(1) This rule defines health disparities and the Social Determinants Of Health and Equity (SDOH-E), establishes requirements for Supporting Health for All through Reinvestment (SHARE), establishes the role of the Community Advisory Councils in supporting SDOH-E, establishes requirements for collecting data on race, ethnicity, and primary language, and establishes requirements for developing health equity infrastructure within a Coordinated Care Organization (CCO). This rule provides structure and guidance to CCOs to support long-term, community-specific investment and partnership in SDOH-E. (2) The following definitions apply for purposes of this rule: (a) “Adjusted Net Income” is the pre-tax net income reported by a CCO for a calendar year (or a partial year, if relevant) pursuant to OAR 410-141-5015, adjusted by the Authority pursuant to section 3(a)(E) of this rule for items such as the following: (A) Excessive administrative expenses, including management bonuses; (B) Improper allocation of expenses across lines of businesses; (C) Non-operating revenues and expenses; (D) Adjustments to base data made as part of the capitation rate development; (E) Expenses not supported by legitimate business purposes; (F) Payments or transfers to subcontractors, parent companies, affiliates, or subsidiaries. (b) “Affiliate” means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the CCO; (c) “Capitated Affiliate” means a CCO’s capitated subcontractor, as defined in OAR 410-141-5000, that is an affiliate of the CCO; (d) “Control” means possessing the direct or indirect power to manage a person or set the person’s policies, whether by owning voting securities, by contract other than a commercial contract for goods or nonmanagement services, by representation on the person’s board, or otherwise, unless the power is the result of an official position or corporate office the person holds; (e) “Health Disparities” are the structural health differences that adversely affect groups of people who systematically experience greater economic, social, or environmental obstacles to health based on their racial or ethnic group, religion, socioeconomic status, gender, age, or mental health; cognitive, sensory, or physical disability; sexual orientation or gender identity; geographic location; or other characteristics historically linked to discrimination or exclusion. Health disparities are the indicators used to track progress toward achieving health equity; (f) “Social Determinants of Health and Equity” (SDOH-E): (A) SDOH-E encompasses three terms: (i) The social determinants of health refer to the social, economic, and environmental conditions in which people are born, grow, work, live, and age, and are shaped by the social determinants of equity. These conditions significantly impact length and quality of life and contribute to health inequities; (ii) The social determinants of equity refer to systemic or structural factors that shape the distribution of the social determinants of health in communities; (iii) Health-related social needs refer to an individual’s social and economic barriers to health, such as housing instability or food insecurity. (B) SDOH-E initiatives may involve interventions that occur outside a clinical setting, and may pursue mechanisms of change including: (i) Community-level interventions that directly address social determinants of health or social determinants of equity; (ii) Interventions to address individual health-related social needs. (g) “SDOH-E Partner” is a single organization, local government, one or more of the Federally-recognized Oregon tribal governments, the Urban Indian Health Program, or a collaborative, that delivers SDOH-E related services or programs, or supports policy and systems change, or both within a CCO’s service area. (3) The following requirements are specific to Supporting Health for All through Reinvestment (SHARE): (a) For each calendar year starting on or after January 1, 2023, CCOs shall dedicate a portion of their previous calendar year’s adjusted net income or reserves to SDOH-E spending, pursuant to ORS 414.572(1)(b)(C) and as set forth in the contract: (A) The portion of adjusted net income or reserves spent shall equal or exceed the greater of: (i) A percentage of average adjusted net income for the prior three calendar years on a sliding scale based on Contractor’s Risk Based Capital (RBC) percentage as of the end of the most recent calendar year (but prior to the SHARE portion calculation); or (ii) A proportion of the amount recorded in dividends or similar payments or both to shareholders, affiliates, or other owners in that prior year. For purposes of this section, these payments include adjusted net income earned by capitated affiliates. Capitated affiliates’ adjusted net income is calculated as defined in section 2(a) of this rule, but with respect to the capitated affiliates’ lines of business under the Contractor as reported to the Authority through Contractor’s financial statements under OAR 410-141-5015. For purposes of this section, dividends or similar payments solely designated to satisfy tax obligations of affiliates that arise on account of serving the CCO’s Oregon Health Plan members shall be excluded, provided that the CCO provides documentation which is approved by the Authority. (B) The Authority will provide the specifications for (3)(A)(i) and (ii) of this rule, including the sliding scale to CCOs in SHARE Guidance, which is located here: https://www.oregon.gov/oha/HPA/dsi-tc/Documents/SHARE-Initiative-Guidance-Document.pdf; (C) The value of the RBC% floor, for the purposes of the sliding scale, will be the greater of: (i) 300% RBC; or (ii) The percentage referenced in OAR 410-141-5180(2) in relation to dividend payment restrictions. (D) A CCO may dedicate more than its required minimum SHARE obligation for a given calendar year, as calculated pursuant to the requirements of (3)(a)(A)(i) and (ii), to be used toward satisfying all or a portion of the following: (i) The current year’s SDOH-E spending requirement (e.g., excess SHARE designations reported to OHA in 2024 may be applied to a CCO’s SHARE spending in 2025); and/or (ii) Any of the SDOH-E requirements for the three calendar years’ immediately following the date the excess SHARE designations were reported to OHA. (E) The Authority may adjust net income under section 2(a) of this rule for the purpose of ensuring that CCOs do not calculate or distribute net income in a manner that effectively avoids or reduces SHARE spending. The Authority will present any adjustments made under this section via administrative notice to an affected CCO within 45 days of the due date for filing the financial reporting in which the SHARE obligation is determined. The notice will indicate the reasons for the adjustment and the amount of adjustment arising from each reason. The Authority will provide the CCO 30 days to reply in writing with objections or comments; (F) The Authority may extend relief from minimum SHARE spending requirements in the event of net losses that would otherwise place the CCO’s capital, surplus or reserves below 200% RBC. (b) CCOs shall select SDOH-E spending priorities that fall into at least one of these five domains of SDOH-E: Neighborhood and Built Environment, Economic Stability, Education, Social and Community Health, and Health Care Access and Quality, and are consistent with: (A) The CCO’s most recent Community Health Improvement Plan (CHP) that is a shared plan with the Collaborative Partners, as defined in OAR 410-141-3730, including local public health authorities and local hospitals. If the CCO has not yet developed a shared CHP, the CCO shall align its priorities with those identified in CHPs developed by other stakeholders in the service area, such as local public health authorities, hospitals, and other CCOs; and (B) Any SDOH-E priority areas identified by the Authority. (c) A portion of SHARE dollars must go directly to SDOH-E Partner(s) for the delivery of services or programs, policy, or systems change, or any of these, to address the social determinants of health and equity as agreed by the CCO. CCOs shall enter into a contract, a Memorandum of Understanding, or other form of agreement including a grant agreement, with each SDOH-E Partner that defines the services to be provided and the CCO’s data collection methods as provided in the contract between the Authority and the CCO; (d) SHARE expenses are not required to meet the requirements of 45 CFR 158.150(b) and are paid for with funding separate from premium revenue. Therefore, SHARE expenses do not need to be considered “activities that improve health care quality” under 45 CFR 158.150(b) and are not included in Medical Loss Ratio (MLR) as defined in 42 CFR 438.8; (e) CCOs shall report completed and anticipated SDOH-E expenditures using the format specified by the Authority. These reports will be posted publicly. (4) Community Advisory Councils (CAC): (a) CCOs shall designate a role for the CAC in SHARE spending decisions; (b) CCOs shall have a conflict of interest policy that applies to its CAC members and accounts for financial interests related to SHARE and other SDOH-E spending; (c) CCOs shall submit reports to the Authority no less than annually that describes the CAC’s role in making decisions on these issues. These reports will be posted publicly with appropriate redactions. (5) CCOs shall collect and maintain data on race, ethnicity, and primary language for all members on an ongoing basis in accordance with standards established by the Authority, including REAL-D. CCOs shall track and report on any quality measure by these demographic factors. The CCOs shall make this information available by posting on the web. (6) Health Equity Infrastructure: (a) The term “Health equity infrastructure” refers to the adoption and use of culturally and linguistically responsive models, policies and practices including and not limited to: (A) Community and member engagement; (B) Provision of quality language access; (C) Workforce diversity; (D) ADA compliance and accessibility of CCO and provider network; (E) ACA 1557 compliance; (F) CCO and provider network organizational training and development; (G) Implementation of the CLAS Standards; (H) Non-discrimination policies. (b) The “Health Equity Plan" is part of the "Health Equity Infrastructure"; (c) CCOs shall: (A) Develop and implement the “Health Equity Plan” to embed health equity as a value and business practice into organizational policies, procedures, and processes; (B) Meet state and federal laws and contractual obligations regarding accessibility and culturally and linguistically responsive health care and services; (C) Inform using an equity framework in all policy, operational, and budget decisions; (D) Provide a structure to ensure oversight and management of programs and services with the goal to advance health equity and provide culturally and linguistically appropriate services. (d) The Health Equity Plan shall include the following: (A) Narrative of the Health Equity Plan development process, including description of meaningful community engagement; (B) Health equity focus areas, including strategies, goals, objectives, activities and metrics; (C) Organizational and Provider Network Cultural Responsiveness and Implicit Bias training plan: (i) CCO shall incorporate Cultural Responsiveness and implicit bias continuing education and training into its existing organization-wide training plan and programs; (ii) CCO shall align cultural responsiveness and implicit bias trainings with the “Cultural Competence Continuing Education” criteria developed by the Authority’s Cultural Competence Continuing Education Advisory Committee referenced in OAR 950-040-0020; (iii) CCO shall adopt the definition of Cultural Competence set forth in OAR 950-040-0010; (iv) CCO shall provide and require all its employees, including directors, executives, and CAC members to participate in all such trainings; (v) CCO’s shall require all CCO’s Provider Network to comply with Cultural Competency Continuing Education requirements set forth in ORS 676.850. (e) The Health Equity Plan and the language access self-assessment report are required to be submitted under OAR 410-141-3515 and shall be submitted every year to the Authority for review and approval; (f) CCOs shall designate a Single Point of Accountability. The single point of accountability can also be called the Health Equity Administrator: (A) The Single Point of Accountability ("Health Equity Administrator") shall be responsible and accountable for all matters relating to Health Equity within the CCO, CCO Provider Network and CCO service area; (B) The Single Point of Accountability ("Health Equity Administrator”) shall have budgetary decision-making authority and health equity expertise; (C) The Single Point of Accountability (“Health Equity Administrator") shall be a high-level employee (e.g., director level or above) and can have more than one area of responsibility and job title; (D) The CCO shall inform and describe to the Authority any changes related to the “Health Equity Administrator” role or scope using the Health Equity Plan; (E) The Single Point of Accountability ("Health Equity Administrator") shall have the authority to communicate directly with CCO executives and governing board.