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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:
We all know that Medicaid saves lives. Medicaid also helps West Virginia families survive financially. And Medicaid is a critical lifeline for rural health providers. Medicaid boosts our state economy and creates West Virginia jobs.
These facts are important as we educate our state legislators about why Medicaid Matters for West Virginia.
Medicaid = Financial Stability for West Virginian Families
Medicaid associated with significant reduction in people’s unpaid bills of all types, amount of debt sent to collection agencies, & credit card debt.
- 10 percentage point increase in Medicaid eligibility reduces personal bankruptcies by 8 percent
- Medicaid covered families 40% less likely to borrow money or skip paying bills to cover medical expenses http://www.nejm.org/doi/full/10.1056/NEJMp1108222
Medicaid = Lifeline for Rural Providers
Rural hospitals’ financial status improved in Medicaid expansion states (states like West Virginia that opted to raise Medicaid eligibility to cover more adults with higher federal matching dollars per the Affordable Care Act)
- Medicaid revenue as a share of total hospital revenue rose 33%
- Operating margins increased by 4 percentage points (difference between total revenues & operating costs) https://www.cbpp.org/research/health/affordable
Medicaid = Good Medicine for West Virginia Economy
Every $1 that West Virginia spends on Medicaid covered health care is matched by $2.9 from the federal government. The total annual Medicaid budget is $4.4 billion but $3.4 billion is new federal dollars pulled into the state generating significant jobs & business activity.
WVU Bureau of Business & Economic Research used macro-economic modeling to quantify positive impact of Medicaid on WV economy in the report “Medicaid’s Impact on West Virginia’s Economy”:
- $10 m Medicaid state spending = $29 m in new federal dollars =
- $49 million new overall annual economic output
- 520 new jobs
- $1.8 million in additional state tax revenue
Jenny's Medicaid Story: “LOOKING BACK, IF I DID NOT HAVE MEDICAID, I WOULD BE DEAD. IT SAVED MY LIFE.”
Meeting Jenny during her lunch break at her public service job was inspiring to say the least. As I listened to her story of pregnancy, cancer survival, job challenges, raising children, and taking care of her aging mother, I was reminded of so many other West Virginians who face multiple choices and challenges to keep their family and themselves healthy.
Jenny worked as a public service employee with Public Employee Insurance Agency (PEIA) health coverage for more than 12 years. Jenny went on medical leave in the fall of 2015 for her second pregnancy. Jenny and her husband and teenage son had carefully planned ahead – they saved and budgeted to pay her PEIA health insurance premiums while she was at home without income.
The successful pregnancy brought a beautiful baby girl into this world. But with bills and financial obligations beginning to pile up, Jenny felt the need to help provide for her family by going back to work after six weeks. Her choice was made easier with support from her own mother who was willing to watch the newborn while Jenny and her husband were working.
Unfortunately, like many of us have experienced, the best plans do not always work out. Jenny’s mother fell and shattered her femur at 64 years of age. Jenny had to think about how to best take care of her family.
Jenny decided she had no choice but to reduce her work hours to part-time so she could care for her newborn baby and her mother. With the reduction in hours, Jenny lost her PEIA health insurance. According to Jenny, they couldn’t put the baby girl on her husband’s insurance because they couldn’t afford the increase in family premiums with the change in income. At this point, Jenny wasn’t sure what her options were, but she knew she and her family needed health insurance protection.
In December of 2015, Jenny like many individuals trying to navigate the health insurance world, signed up through healthcare.gov and discovered she qualified for Medicaid thanks to the West Virginia Medicaid Expansion. Jenny was thrilled to learn that “It covered everything.”
With coverage for her baby girl and herself, Jenny and the baby were able to continue regular visits to their doctors. Jenny is clear that “I would not have gone to the doctor” without Medicaid. Even routine medical visits are expensive and Jenny – like most people – worry about being able to pay the doctor even for the cost of a basic doctor’s visit and screening tests.
And in this case, going to the doctor for a regular check-up saved Jenny’s life. A gynecological exam and pap smear in August of 2016 found a rare form of cervical cancer (a rare 85/20 combo of adenosarcoma and Squamish). Thanks to the care from her physician Dr. Ellie Hood at Valley Health, her life was saved.
Medicaid covered the robotic DaVinci surgery in 2017 for her hysterectomy to battle the cancer. Now, in January 2019, she can celebrate being cancer free, enjoy raising her children, and being back to work full time in the public service sector.
Jenny wants to remind her fellow West Virginians, “If it can happen to me….”
It only takes one unexpected event to derail a West Virginian’s plans to care for their family. Jenny is proud of her college education and she thought she had achieved middle-class financial security. Now Jenny understands that a single stroke of misfortune can wipe out a family’s peace of mind - of knowing they can afford to go the doctor to take care of themselves so they can take care of their family.
Today, Jenny’s daughter is covered by the West Virginia Children’s Health Insurance Program (CHIP). With her CHIP coverage, Jenny’s daughter was able to see the doctor for a serious ear infection. With CHIP, the trip to the doctors and prescription for the ear infection cost $15 - “which is a reasonable amount for a family” according to Jenny.
If Jenny had not had Medicaid, she would have gone without health insurance and health care during the three years she worked part-time so she could care for her mother and her daughter. The consequences would have been tragic. As Jenny states, without Medicaid, “I would have been dead.”
Jenny from Barboursville, wants everyone to understand one important thing - Medicaid Matters.
West Virginians Together for Medicaid thanks Jenny for standing up for Medicaid by sharing her personal story. If you are interested in sharing your Medicaid or CHIP story, reach out to us on Facebook (https://www.facebook.com/WVTFM/) or Twitter @WVTFMedicaid by sending us a message or give our Story Collection Coordinator, Lara Foster, a call 304-702-6708. Your story can help more West Virginians understand how important Medicaid is to our state’s families.
This past Friday night Federal District Court Judge Reed O’Connor issued a ruling in the Texas v. Azar lawsuit brought by 20 state attorneys general. Judge O’Connor’s found for the plaintiffs and struck down the entire Affordable Care Act (ACA).
The most important things to know about the ruling are:
First, for now, nothing changes: the ACA remains the law of the land.
- The Medicaid expansion in West Virginia and other states is still in place.
- Judge O’Connor did not issue an injunction ordering the Administration to stop enforcing the law, and the White House issued a statement affirming that the ACA remains the law of the land pending appeal.
- Healthcare.gov emailed consumers telling them that they should still sign up for coverage on the final day of open enrollment, and there will not be changes to their coverage for 2019.
Second, the ruling will be appealed, and the legal arguments are extraordinarily weak.
- Judge O’Connor’s decision hinges on the fact that the 2017 tax law zeroed out the penalty attached to the ACA’s individual mandate. The claim is that in zeroing out the penalty, Congress rendered not only the mandate but the entire ACA unconstitutional, effectively repealing the ACA as a byproduct of the tax bill.
- Legal experts across the political spectrum, including experts who opposed the ACA and supported previous legal challenges to the law, have called that argument “absurd,” noting that Congress obviously intended to zero out the ACA mandate penalty without changing the rest of the law.
- Seventeen state attorneys general (led by Xavier Becerra from California) had already intervened in the lawsuit to defend the ACA, and they will be able to continue to defend the law on appeal.
- However, West Virginia Attorney General Morrisey has joined the lawsuit on the side to strike down the ACA and terminate both the Medicaid Expansion for 175,000 West Virginians and end the premium subsidies in the Marketplace for close to 30,000 West Virginians.
WHAT YOU CAN DO:
1. Call on President Trump to reverse his position and have his Administration defend the ACA in court.
Phone Number: 1-202-456-1111
TTY: 1-202-456-6213. 1-202-456-2121 (Visitor's Office)
2. Call on Attorney General Morrisey to remove West Virginia from the list of states that are on the side arguing to wipe out the ACA and Medicaid Expansion.
3. Call on West Virginia’s United States Congressional delegation to reject the decision, support an appeal to overturn the ruling and leave the ACA and Medicaid expansion intact, and take action to preserve the ACA.
Contact information for all West Virginia delegation members HERE.
The Center on Budget and Policy Priorities has released a new chart book called “Chart Book: The Far-Reaching Benefits of the Affordable Care Act’s Medicaid Expansion” that is a great tool for Medicaid advocates and policy-makers.
So far, 32 states (counting the District of Columbia) have expanded Medicaid coverage to low-income adults under the Affordable Care Act (ACA). More states are poised to do so next year. West Virginia can be proud that we were one of the first states to take advantage of this opportunity to provide more people quality, affordable health coverage.
More and more research show that Medicaid expansion has produced significant benefits – for those gaining coverage, their families, and their communities. Those enrolled have improved health care access, health outcomes, and financial security, among other things.
In states that have expanded Medicaid, more people with opioid use and other substance abuse disorders are getting treatment. Hospitals in these states have also seen improved financial health.
Here is our favorite from the new chart book.
If you care about Medicaid, vote on November 6th with Medicaid in mind. Consider how candidates for representatives in the West Virginia statehouse and in the U.S. Congress stand on Medicaid. Some candidates have pledged to repeal the Affordable Care Act - that means the Medicaid expansion. Others understand that Medicaid is vital for one-third of West Virginians - as the source of affordable health care, as the key payer for opioid addiction prevention, early intervention, and treatment, and as a generator of jobs in our economy
Do your research. Do your homework. Ask questions. Be informed. Participate in democracy. Voting does matter.
And you are not alone.
A new report by the nonpartisan Government Accountability Office was released yesterday, showing that low-income adults in states that expanded Medicaid report better access to health care. The New York Times reports on key findings:
- Nearly 20 percent of low-income people in states that did not expand Medicaid said they passed up needed medical care in the past 12 months because they couldn't afford it. That compared to 9.4 percent in states that expanded the program.
- About 8 percent of those in states that did not expand Medicaid reported they either skipped medication doses to save money or took less medication than prescribed. That compared to about 5 percent in states that expanded. For people with chronic conditions such as high blood pressure, diabetes and asthma, staying on a medication schedule is considered essential.
- About 22 percent of those in states not expanding Medicaid said they needed but could not afford dental care, as compared to 15 percent of similar low-income adults in expansion states.
- About 11 percent of those in non-expansion states said they needed to see a specialist but weren't able to afford it, as compared to about 6 percent of those in expansion states.
Individuals with disabilities are significantly more likely to be employed in states that have expanded Medicaid coverage as part of the Affordable Care Act, new research from the University of Kansas has found. Similarly, individuals who report not working because of a disability have significantly declined in expansion states, while neither trend happened in states that chose not to expand Medicaid. West Virginia - one of the first states to expand Medicaid under the Affordable Care Act - was included in the states studied.
The trends have broad policy implications as many states are considering work requirements for Medicaid eligibility, and they also have the potential to show similar employment benefits for individuals without disabilities. "In effect, Medicaid expansion is acting as an employment incentive for people with disabilities," the researchers wrote.
The study, authored by Jean Hall, professor of applied behavioral science and director of KU's Institute for Health and Disability Policy Studies; Adele Shartzer of the Urban Institute; Noelle Kurth, senior research assistant in KU's Institute for Health and Disability Policy Studies; and Kathleen Thomas of the University of North Carolina, was published in the American Journal of Public Health.
PERCENTAGE OF INDIVIDUALS WITH DISABILITIES IN MEDICAID EXPANSION STATES REPORTING EMPLOYMENT AND NOT WORKING BECAUSE OF DISABILITY