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WV Attorney General Morrisey Proposes a Smoke Screen to Protect West Virginians with Pre-Existing Conditions from His Lawsuit to Repeal the ACA
West Virginia Attorney General Morrisey Puts Our Health & Lives on the Line
Yesterday West Virginia Attorney General Morrisey (R) and Senate President Carmichael (R-Jackson) announced state legislation that purports to protect West Virginians with pre-existing conditions in the event that the courts strike down or render substantial portions of the Affordable Care Act (ACA) unconstitutional. The lawsuit to strike down the ACA was originally brought by Republican attorneys general in 20 states, including Attorney General Patrick Morrisey, and the Trump Administration has called for repeal of the entire ACA.
West Virginians for Affordable Health Care applauds Attorney General Morrisey and Senator Carmichael for acknowledging that the repeal of the ACA would threaten access to affordable and meaningful health insurance coverage for hundreds of thousands of West Virginians. In fact, West Virginia has the highest percentage of people under age 65 with a pre-existing condition with 37 percent of the state population at risk of insurance company discrimination. It is ironic that now Attorney General Morrisey believes that he can use state legislation to ameliorate the harm to West Virginians that could be caused by his own lawsuit.
The ACA provides both significant premium subsidies to people below 400 percent of the Federal Poverty Level and consumer protections for people with pre-existing conditions.
The subsidies (advanceable and refundable premium tax credits) are available to individuals who make $49,960 or less a year in 2020 (for a family of four the income cap for premium financial assistance is $103,000 a year. The average monthly ACA premium subsidy for West Virginians is $765 per person. More than 17,500 West Virginians receive a subsidy. The estimated annual premium tax credits received by West Virginia ACA Marketplace enrollees is almost $162 million dollars. The state would need to replace these federal dollars and with the inflation of health care costs, this amount would climb each subsequent year.
The ACA also already provides three levels of consumer protections for people with pre-existing conditions:
- Guaranteed Issue: The ACA requires insurance companies to offer a policy to an applicant without regard to health status and no one can be denied a policy because of a pre-existing condition (“guaranteed issue”).
- No Medical Underwriting: The ACA requires insurance companies to sell a policy without raising the premiums because of a person’s health status or pre-existing condition.
- No Exclusion Riders: The ACA requires insurers to sell a policy to a person with a pre-existing condition without any special limits on the benefits covered by the policy (these limits are called exclusion riders).
First, West Virginians for Affordable Health Care asks that A.G. Morrisey and Senator Carmichael remove West Virginia from the Texas v. United States lawsuit. While we – and constitutional experts from across the political spectrum - believe the constitutional challenge has no legal merit, the influence of politics in our court system puts West Virginians with pre-existing conditions in danger.
Second, West Virginians for Affordable Health Care asks that if the ACA in its entirety or the pre-existing condition consumer protections are repealed by the courts, any legislation at the state level must have all three of the above levels of pre-existing condition consumer protections.
Third, if the Attorney General Morrisey’s lawsuit strikes down the ACA premium subsidies, West Virginians will lose hundreds of millions of dollars in federal help purchasing health insurance. West Virginians for Affordable Health Care asks that his legislative proposal replace these lost federal dollars with state dollars.
The West Virginians for Affordable Health Care’s Health Agenda 2020 calls for this complete three-level protection for West Virginians with pre-existing conditions. Republican proposals in Congress have failed to meet this test and provided only guaranteed issue. Or have promoted high risk pools which have failed in the past to protect consumers with pre-existing conditions from very high premiums and limited their choice of plans.
Guaranteed issue without protections from medical underwriting and exclusion riders leaves West Virginians with pre-existing conditions the “right” to buy an insurance policy at exorbitantly high premiums and no coverage for the care that they need. It leaves West Virginians with pre-existing conditions stuck with an expensive swiss cheese insurance plan that leaves them paying premiums for the privilege of being uninsured.
Finally, Attorney General Morrisey does not acknowledge that his lawsuit could also wipe out the Affordable Care Act’s Medicaid Expansion which provides affordable, quality health insurance to more than 150,000 adult West Virginians every year. The federal government covers 90 percent of the cost of the health care provided to these West Virginians – more than $900 million in 2018.
In addition to leaving West Virginians in less-than-perfect health unprotected from insurance company discrimination, a full repeal of the ACA would mean a huge loss of both federal Medicaid dollars as well as premium subsidies – more than a billion federal dollars per year. The impact on health care and the state’s overall economy would be devastating.
Attorney General Morrisey has put the lives of hundreds of thousands of West Virginians, and hundreds of millions of dollars of federal money that pays for health care for our families, on the line with his lawsuit. Trying to repair the potential damage of his own lawsuit to our West Virginia families and health care system with state legislation and dollars is perhaps commendable but impossible. Attorney General Morrisey should withdraw West Virginia as a plaintiff to Texas v United States calling for the repeal the ACA and join West Virginia as a defendant fighting to preserve the existing pre-existing condition consumer protections and premium subsidies in the ACA for our families.
Upon arrival to an accident, firefighters are taught to wait for their incident commander to get a quick assessment of the situation, get their safety gear on (“donning” in fireman lingo), and then jump directly into their rolls such as lineman, the one who leads the charge with the hose.
The day before the West Virginia Insulin Caravan, Roxy Vasil, age 17, was donning his Personal Protective Equipment (PPE - the jacket and pants firefighters wear) and his Self-Contained Breathing Apparatus (SCBA). Roxy was taking his practical skills test for Hazmat Awareness and Standards of Procedures training. Roxy joined the Cheat Lake Volunteer Fire Department back in March of 2019 and has been enjoying his time there with the goal of “giving back and serving the community.” When he joined the bus to head to Canada, Roxy did the smart thing and went to the back of the bus, taking a seat next to three emergency exits within arm’s reach. That way he could best help if there was an accident.
Roxy on the right in part of his Class C from hazmat training.
According to Roxy, his interests for volunteer fire fighting started when “the guys came to our school and seemed pretty cool.” (Note to other volunteer organizations: if you want the young adults to serve you might want to seem “pretty cool.”) As a then Junior, now Senior at Morgantown High School, Roxy maintains a 3.8 GPA, serves his community, and works when he can at three part-time/seasonal jobs. He just says, “I like to work.” His mother, Maggie, says she encourages her son, “to stay active and stay out of trouble,” and her encouragement seems to be working! Roxy hopes his academic success, work ethic, and his volunteer fire department record will help him achieve his goal of attending WVU, hopefully with a Promise Scholarship, where he plans to use his skills -“I’m pretty good with people and selling things” - to study business administration.
With all of these activities in mind, his PPE is not the only thing Roxy dons as far as personal protective equipment. One of the vital components to Roxy’s daily living is the insulin medication he carries, along with snacks, to properly manage his Type I Diabetes. Diagnosed at the age of six, after a movie theater trip that had over five-bathroom breaks in 20 minutes, Maggie contacted a friend who was a registered nurse who encouraged them to go get a glucose testing strip. The next day Roxy and Maggie were at the doctor’s office “learning how to take care of his condition.”
Over the past 10 years treatments have come a long way but every now and then Maggie does worry that without insulin and medication Roxy could die, “Scary actually is what it is. We’ve looked into dual-citizenship to see if we could.” They have relatives from Ireland and “we dwell in possibility” of the potential consequences of Roxy not having his life-saving medication.
Maggie and her son Roxy at Niagara Falls, Canada
Yesterday was the day Medicaid advocates across the country have been dreading. The U.S. Department of Homeland Security (DHS) posted its final public charge rules to the Federal Register for inspection, with official publication scheduled for Wednesday. The new rule aims to deny green cards to immigrants who use Medicaid, food stamps, housing voucher,s or other forms of public assistance
Here is a link to the final rule. If litigation does not prevent the rule from taking effect, the policy will become effective in 60 days on October 15.
Our national allies issued strong statements in opposition to the rule. The Center for Budget and Policy Priorities released this statement on the rule and the harm it will cause:
The rule will have numerous adverse effects. It will sow more fear in immigrant communities and almost certainly lead many immigrants who are in the United States legally as well as their family members to forgo health coverage, nutrition assistance, and housing assistance that they need and are eligible for under federal law. This fear will be even more severe if the Trump Administration adopts another rule it has under consideration, one that reportedly would use receipt of benefits under the expanded public charge definition as a basis to deport some groups of immigrants. The rule issued today will harm children and likely keep — or newly split — apart many families.
Families USA released this statement on the rule:
If we strip away the legalese and fine print, the Trump administration’s “Inadmissibility on Public Charge Grounds” rule, is squarely an abhorrent act of moral terrorism.
This policy, which could take effect as soon as 60 days, will affect approximately 10 million documented immigrants. And the Kaiser Family Foundation estimates that enrollment will decline among the 19 million citizen children of immigrant parents….
The Trump administration is essentially giving documented immigrants a choice: you can get a green card, or you can access medical care that you likely cannot afford. That is not acceptable as a matter of public health or our nation’s moral character. And the rule is actually illegal and an example of hubristic overreach.
We will not stand for this open-handed disregard for humanity.
In our health care system access to medical care often depends on access to basic benefits like Medicare and Medicaid. These programs are used by over a hundred million Americans—they are hardly special benefits. This regulation penalizes lawful, documented immigrants by denying permanent residency for using these basic components of how we access medical care.
This fight is not over. A coalition of health care advocates will likely sue the Trump administration over this rule. Already San Francisco and Santa Clara counties filed legal challenges to block the Trump administration's new rule. In their filings, the two northern California counties argue that the policy would "worsen" the health of their residents and increase public health risks. More lawsuits from other localities are expected. In addition, some Members of Congress are exploring ways to block the implementation of the rule. West Virginians Together for Medicaid will keep you posted on developments.
TAKE ACTION: You can help spread the word about the harmful effects of the rule on social media. Please use the hashtag #ProtectFamilies on Facebook, Twitter, and Instagram. You can find more social media resources in the Protecting Immigrant Families Digital Media Toolkit.
Sometimes a wonky, technical change by the federal government can have life and death consequences for millions of Americans and thousands of West Virginians.
One of those critical changes was proposed on May 7 in the Federal Register. The Trump administration proposed a change to the Census Bureau’s Official Poverty Measure (OPM) calculation that sets the Federal Poverty Guidelines. The suggested change is to switch the current inflation rate used to calculate the OPM to a calculation with a lower annual adjustment.
Did I lose you yet?
The bottom line is that the Federal Poverty Guidelines are already too low, and this change makes then even lower.
The current official Federal Poverty Line for 2019 is set at $12,490 for a single individual (just $1,040 per month) and $25,750 for a family of four.
If the Federal Poverty Guidelines shrink lower, then fewer low-income individuals and families will be able to qualify for programs that help that stretch low wages to meet basic needs. The proposed change to the inflation factor will lower these Guidelines year after year and define more and more individuals and families “out” of poverty with no change to their actual economic standing.
This seemingly “technical” change will ripple across an entire spectrum of services, with life and death consequences.
This proposed change would reduce access to income-based health programming including Medicaid, the Children’s Health Insurance Program (CHIP), the premium tax credit and subsidy assistance in the state health insurance marketplaces, and Medicare premium assistance for low-income elders and people with disabilities.
In West Virginia, who relies on these income-based programs and could be at risk?
- Our neighbors, friends and family who relied on Medicaid and CHIP in March 2019 (529,000 West Virginians)
- In West Virginia, Medicaid covers:
- 1 in 4 adults under age 65
- 3 in 5 low-income adults
- 1 in 2 children
- 3 in 4 nursing home residents
- 1 in 2 people with disabilities
- Older adults and people with disabilities who are on Medicare and also eligible for Medicaid (“dual eligible”) that help pay for their Medicare coverage (89,000 West Virginians)
- People who rely on state health insurance marketplace advance premium tax credit and cost-sharing assistance (21,000 West Virginians).
- Low-income pregnant women who rely on the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), which services more than 40,000 West Virginian moms and infants
TAKE ACTION! RAISE YOUR VOICE!
It is incredibly important to push back on this proposal. Each of us have the right to comment by June 21 and it only takes a few minutes to make your voice heard. The Federal Register has a link to comment by email and the national Coalition on Human Needs has a portal to help concerned citizens submit comments in opposition to shrinking the Federal Poverty Guidelines.
President Trump's proposed budget would add millions to the ranks of the uninsured by repealing the Affordable Care Act (ACA) and making deep cuts in Medicaid.
It proposes cutting $777 billion over ten years from Medicaid and ACA subsidies that help people afford marketplace health coverage, primarily by repealing the ACA, including the Medicaid expansion, and replacing that coverage with an inadequate block grant, while also imposing a per-capita cap on the rest of the federal Medicaid program. These proposals would end the ACA’s nationwide protections for people with pre-existing conditions, cause millions more people to become uninsured, and increase costs and otherwise impede access to health care for millions more. The budget also includes other Medicaid cuts, such as making it harder for eligible people to obtain coverage by requiring additional documentation of citizenship or immigration status, re-imposing asset tests, and making it harder for some seniors and people with disabilities to qualify for Medicaid without selling their homes.
For an analysis of the President's budget, see this initial report from the national Center on Budget and Policy Priorities and this Health Policy Hub blog from our partner national organization, Community Catalyst.
The good news - the President's budget is dead on arrival in Congress. Over the next months, Congressional Democrats and Republicans will need to work together to develop their own budget. Stay tuned as Congress moves forward.
The West Virginia regular legislative session ended on March 9. While the session had its share of controversy, three bills supported by West Virginians Together for Medicaid were sent to the Governor’s desk:
SB 546 – expanding Medicaid and Children’s Health Insurance Program (CHIP) coverage to low-income, uninsured pregnant women up from 163% to 300% of the federal poverty level (fpl). Prenatal care, delivery, and 60 days postpartum care are covered. Before SB 546, Maternal and Child Health Block Grant money paid for some pregnancy coverage up to 185% fpl. These funds can now be diverted to pay for other needed services for families.
HB 2405 – places a tiered assessment on all Health Care Maintenance Organizations (HMOs) in order to “permit the maximization of federal matching dollars for use in the state Medicaid program.” All HMOs operating in the state are subject to the assessment except PEIA (state-employee plans), FEHBP (federal employee plans), and Medicare Advantage plans. The assessment will sunset in three years. The assessment rate would be based on a per member per month basis and is higher for Medicaid member months than for nonMedicaid members. The revenues raised go into a Medicaid dedicated fund and will pull down federal matching dollars. WV receives at least $2.99 in federal funds for every state dollar spent on Medicaid.
HB 2010 – About 80% of the WV Medicaid population is enrolled in Medicaid Managed Care Organizations (MCOs) and CHIP is transitioning to managed care. This bill transitions the foster care child population to a single MCO and will eventually transition all families at-risk of an out-of-home placement of a child to the same MCO. The purpose of the transition is to enhance overall coordination of services, ensure continuity of care as a child moves through the system, and enhance linkages between medical and social services. The bill also has other provisions to improve the WV foster care system, including to: 1) create a foster care ombudsman; 2) require DHHR to enter into performance-based contracts with child placing organizations; 3) require a study of kinship care; 4) extend the time a foster care certification is authorized; 5) require that a home safety assessment takes place annually; 6) sets rules regarding removal of a child from a residential child care program; 7) prohibits the termination of parental rights when the parent participating in a medically assisted treatment program; and, 8) establishes rules about when a foster child can be placed in an out-of-state facility.
In addition, West Virginians Together for Medicaid opposed HB 3136 to create a work requirement in the Medicaid program. The bill died in the House. Although Medicaid work requirements have been defeated two years in a row, we expect to see a Medicaid work requirement initiative again in 2020.
Thank you to all who made calls to the legislature to express their support of the Medicaid program and to share their personal stories of how Medicaid has made a positive difference in their lives.
PLEASE CALL WV DELEGATES AND ASK THEM TO SUPPORT SB 564
KEY TARGETS RIGHT NOW ARE THE DELEGATES ON THE HEALTH AND HUMAN RESOURCES COMMITTEE – CLICK HERE FOR NAMES AND PHONE NUMBERS
- On cross-over day in the West Virginia legislature, SB 564 passed unanimously in the Senate and now will be considered by the House.
- SB 564 will provide Medicaid/CHIP health insurance coverage to low-income, uninsured pregnant women up to 300% of the federal poverty level.
- SB 564 will cost WV only $600,000 – because most of the money will be federal matching funds.
- SB 564 represents one of the most important investments that our legislators could make to give West Virginia a brighter future – and an opportunity for Republicans and Democrats to work together.
- The health of a mother and her child’s health are intertwined. To have a healthy start for a child born in West Virginia, women need health services during pregnancy – including prenatal services - and new mothers need health services to stay healthy as they take on the responsibility of care for their newborn baby.
- As our state confronts a growing drug epidemic, the importance of providing health services to this population has never been more important.
AGAIN - KEY TARGETS RIGHT NOW ARE THE DELEGATES ON THE HEALTH AND HUMAN RESOURCES COMMITTEE – CLICK HERE FOR NAMES AND PHONE NUMBERS
PLEASE make a difference and pick-up the phone. It will only take a minute.
To: West Virginia Department of Health and Human Resources
Attention: Jeremiah Samples, Deputy Director
From: Kathleen D. Stoll, Esquire
Principal, Kat Consulting
RE: HB 3136 and Risk of Federal Litigation
The federal District Court of the District of Columbia ruled in June 2018 that Kentucky’s effort to add work reporting requirements to the state’s Medicaid program was “arbitrary and capricious.”
Judge James Boasberg ruled that the administration never adequately considered whether the work reporting requirements and other restrictions would violate the program's central purpose of providing medical assistance to vulnerable citizens. The implementation of the work reporting requirement was stopped. The federal court’s 60 page decision is here.
The Trump administration then re-approved what was essentially the same request from Kentucky, to go into effect on April 1, 2019.
Kentucky made no changes to the key features of the project; it continues to include work reporting requirements and program lockouts.
The 15 plaintiffs suing the administration now have filed their suit in the same federal court and want to have the new Trump administration approval also declared to be arbitrary and capricious. Plaintiffs from Arkansas have also joined the lawsuit asking for the program to be vacated. Oral arguments have been set for March 14 before Judge Boasberg. The amended 53 page complaint is here.
HB 3136 will require a Medicaid 1115 waiver that will be parallel to the Kentucky and Arkansas waivers. Kentucky’s waiver seeks to allow the state to deny coverage to any nondisabled adult who cannot prove they are working, volunteering or in school for at least 20 hours per week.
It is the expectation of legal experts following the lawsuits that Judge Boasberg will again vacate both the Kentucky and Arkansas work reporting requirements and Medicaid lock-out.
The lawsuit will be appealed to the Federal District Court of Appeals and could go up to the Supreme Court.
Unless Congress acts to change the underlying Medicaid statute, the eventual final court ruling will uphold Judge Boasberg’s decision and vacate state Medicaid work reporting requirements. It is unlikely that Congress will open up the underlying Medicaid statute to incorporate a change to the stated purposes of the Medicaid program or to specifically allow work reporting requirements in new statutory language.
House Energy and Commerce Committee Chairman Frank Pallone Jr. (D-N.J.) and Senate Finance Committee ranking member Ron Wyden (D-Ore.) wrote to the administration that the requirements “threaten to impede access to critical care for millions of Americans.”
The Democrats called on Azar to “put a halt to” approving more states to implement work requirements. “We unfortunately are now seeing these concerns play out in real life in the state of Arkansas where thousands of individuals have been forced off and locked out of their Medicaid coverage,” they added in the letter to Secretary of Health and Human Services Alex Azar.
Three national level entities – the National Health Law Program, the Southern Poverty Law Center, and Families USA – have stated that they will bring a suit against the state of West Virginia if a Medicaid 1115 waiver is submitted to the Centers for Medicare and Medicaid Services pursuant to implementation of HB 3136. In addition, two West Virginia based entities have stated they will join the lawsuit as plaintiffs bring forward West Virginia Medicaid enrollee. It is also likely that a number of disease and provider associations will sign on to an Amicus Curiae brief to the court based on their current opposition to HB 3136.
The cost to West Virginia to defend this lawsuit is very difficult to estimate. However, based on similar state experiences, it will be in the tens of millions of dollars in legal staff time and possible outside counsel contracts to defend a work reporting requirement.
West Virginia Families Need a Healthy Start: SB 564 Expanding Coverage for Pregnant Women and New Mothers
The health of a mother and her child’s health are intertwined. To have a healthy start for a child born in West Virginia, women need comprehensive health services during pregnancy – including prenatal services - and new mothers need health services to stay healthy as they take on the responsibility of care for their newborn baby.
As our state confronts a growing drug epidemic, the importance of providing health services to this population has never been more important.
West Virginia was the first state to take advantage of a SUD 1115 Medicaid waiver to expand the scope of substance use disorder services available to Medicaid enrollees.
It is time for West Virginia to continue our leadership and expand comprehensive Medicaid and CHIP coverage for uninsured pregnant women up to 300 percent of the federal poverty level (FPL), and for the new mother to have coverage for at least 60 days with the possibility of extending coverage up to two years postpartum for all eligible women depending on feasibility under federal law.
What West Virginia Provides Now and How Coverage Changes Under SB 564: The Healthy Start for West Virginia Families Proposal
Under Current Law
- Up through 138% FPL - Medicaid provides coverage to all adults including pregnant women up to 138% of the Federal Poverty Level (FPL). Pregnant women and new mothers receive a comprehensive range of services, including behavioral health services, with very low , copayments.
- 139 - 163% FPL – Medicaid provides prenatal care/delivery/60 days postpartum care to pregnant women.
- 164 – 185% FPL – Maternal and Child Health (MCH) federal block grant funds provide only prenatal care and delivery services to pregnant women, not comprehensive coverage.
Under SB 564
- Up through 138% FPL - Medicaid provides coverage to all adults through 138% of the Federal Poverty Level (FPL). Pregnant women and new mothers receive a comprehensive range of services, including behavioral health services, with very low premiums and copayments.
- 139 - 185% FPL - Medicaid provides prenatal care/delivery/60 days postpartum care for pregnant women.
- 186 - 300% FPL - CHIP provides prenatal care/delivery/60 days postpartum care for pregnant women
- Above 300% FPL - Maternal and Child Health (MCH) federal block grant funds provide otherwise uninsured pregnant women prenatal care/delivery/60 days post-partum care
In 2018, West Virginia considered putting a Medicaid work requirement but decided that this policy would not make good sense for our state. So far, in 2019 no proposals to create a work requirement are moving. However, rumors are that a proposal may emerge. So now is a good time to look through our past blogs on this issue as well as learn more from the recent Rural Health Association webinar on what a Medicaid work requirement might mean for West Virginia.
Here's an audio recording of the webinar.
And here are some helpful resources from the webinar: