Medicaid and Work Requirements: Has Kentucky Gone Too Far? February 22, 2018
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1 Medicaid and Work Requirements: Has Kentucky Gone Too Far? February 22, 2018 Co-Sponsored by: 1
2 How to Use Webex Q & A 1. Open the Q&A panel 2. Select All Panelists 3. Type your question 4. Click Send 2
3 Presenter Jane Perkins, J.D., Senior Attorney, Network for Public Health Law Southeastern Region Office and Legal Director, National Health Law Program - J.D. University of North Carolina, Chapel Hill - Research interests/areas of expertise: Maternal and child health Affordable Care Act 3
4 Presenter Sarah Somers, J.D., Managing attorney, Network for Public Health Law Southeastern Region Office and National Health Law Program - J.D., University of Michigan - Research interests/areas of expertise: Medicaid Americans with Disabilities Act Affordable Care Act 4
5 The Network for Public Health Law (Network) protects and promotes the health of communities, and advances health equity through the effective use of law and policy. Legal technical assistance at no cost Bi-weekly newsletter Resources on law and policy 2018 Public Health Law Conference October 4-6 Phoenix, AZ Join the mailing list at Follow us on Social on Twitter and Facebook National non-profit committed to improving health care access and quality for low income and underserved individuals and families State & local partners: Disability rights advocates 50 states + DC Poverty & legal aid advocates 50 states + DC Join our mailing list at Follow us on Social on Twitter on Facebook 5
6 Medicaid Background Established in 1965 as an entitlement to health coverage» Aged, blind, disabled, children, parents Serves more than 74 million people the largest source of health insurance coverage and the largest source of payment for long term care. Federal funds match state expenditures: the average federal match is 58% in FY 2018
7 Medicaid Flexibility Federal law establishes minimum requirements and state options» Coverage categories» Services» Provider participation and freedom of choice» Premiums & cost sharing
8 Medicaid Flexibility Waiver Options» Home and community based services» Delivery systems» Experimental and demonstration programs
9 Affordable Care Act Changes Medicaid expansion» Extended coverage to most citizen adults under 133% of the federal poverty level.» In 2012, Supreme Court held that states do not have to expand.» To date, 18 states have not adopted the expansion.
10 Historic Drop in the Nation s Uninsured Rate 19.6% Uninsured Rate, Persons under age % 16.8% 14.9% 13.5% 14.5% 13.7% United States 11.4% 10.9% 10.0% Expansion States Non-expansion States 8.6% 7.6% Source: Manatt Phelps & Phillips
11 New Direction by CMS Letter to State Medicaid Directors March 2017» Encouragement to states to increase employment and community engagement» Alignment of commercial and Medicaid coverage Address to State Medicaid Directors November 2017» Condemned the ACA s expansion of Medicaid to able-bodied adults» Announced intention to move people off of Medicaid and onto commercial insurance Indiana 1115 Approval» Framing work requirements as addressing health determinants
12 42 U.S.C ( 1115 of Social Security Act) Experimental, pilot or demonstration project Secretary finds:» Likely to assist in promoting the objectives of the Medicaid Act Secretary may:» Waive compliance with requirements of 1396a of the Medicaid Act (governing state Medicaid plans)» To extent and for period needed to complete the experiment
13 Kentucky HEALTH Waiver: Timeline August 24, 2016: Initial waiver application submitted August 2, 2017: Federal comment period closed January 11, 2018: Dear State Medicaid Director Letter January 12, 2018: Kentucky HEALTH approved January 24, 2018: Stewart v. Hargan (D.D.C.) February 19, 2018: Commonwealth of Kentucky v. Stewart (D. Kentucky)
14 Kentucky HEALTH Approved Waiver:» Mandatory work requirements» Premiums for very low income people» Cost sharing for non-emergency use of the ER» Lock outs and termination for non-compliance» No 3-months retroactive coverage» No non-emergency medical transportation
15 Limits on 1115 Authority: Approved Kentucky Waivers Stewart v. Hargan, No. 1:18-cv (D.D.C. filed Jan. 24, 2018)» Plaintiffs» Claims: Violation of the Constitution: Take Care Clause Violation of the Administrative Procedure Act - Public notice and comment for rules Dear State Medicaid Director Letter (Jan. 11, 2018) - Fairness in decision-making Not in accordance with law Arbitrary & capricious
16 Limit on 1115 Authority: An experimental, pilot or demonstration project» Congress: Detailed research methodology and comprehensive evaluation» Courts: A simple benefit cut, which might save money, but has no research or experimental goal, would not satisfy this requirement.
17 Limit on 1115 Authority: Secretary may only waive provisions of 1396a» Section 1396a contains 52 provisions» Examples: Cost sharing limits, 1396o(f) Premium limits, 1396o-1
18 Limit on 1115 Authority: Likely to promote the objectives of the Medicaid Act 42 U.S.C For the purpose of enabling each State to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care
19 Compare: The purpose of TANF 42 U.S.C. 601 The purpose of this part is to increase the flexibility of States in operating a program designed to (1) provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives; (2) end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage;.
20 Lawsuit from Kentucky Governor Commonwealth of Kentucky v. Stewart» Filed in District Court in Kentucky» Asking for declaratory relief that the waiver is legal» Sued individual plaintiffs who filed suit against HHS
21 Approved and Pending Coverage Waivers Approved Pending Features KY IN AZ MA MI ME MS MT NC NH NM UT WI Premiums (some states with lockout) Cost Sharing Work Requirements Healthy Behavior Incentives Non-Emergency Medical Transportation Waiver Institution for Mental Disease Exclusion Waiver Retroactive Coverage Waiver Prompt Enrollment Waiver Drug Screening Limits on Enrollment Duration Partial Expansion Health Savings-Like Accounts Late Renewal Paperwork Penalty/Lockout 1927 Waiver for Closed Formularies Source: Manatt Phelps & Phillips
22 A solution in search of a problem?
23 Questions to consider Do these proposals further the objectives of the Medicaid Act? How will they affect low income people? How will this affect the state s administrative burden and how will that impact access? Is it appropriate to characterize work requirements as a social determinant of health?
24 How to Use Webex Q & A 1. Open the Q&A panel 2. Select All Panelists 3. Type your question 4. Click Send 24 Emergency Declarations to Address the Opioid Crisis September 19, 2017
25 Thank you for attending For a recording of this webinar and information about future webinars, please visit networkforphl.org/webinars You may qualify for CLE credit. All webinar attendees will receive an from ASLME, an approved provider of continuing legal education credits, with information on applying for CLE credit for this webinar. 25 Emergency Declarations to Address the Opioid Crisis September 19, 2017
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