More machi­na­tions on Med­i­caid

States could seek cus­tom­ized Med­i­caid so­lu­tions in wake of ACA rul­ing

Modern Healthcare - - FRONT PAGE - Rich Daly

Some state lead­ers may hold out for the White House to hag­gle with them in­di­vid­u­ally over ex­pand­ing their Med­i­caid pro­grams as the ad­min­is­tra­tion strug­gles to sal­vage the re­form law’s cov­er­age goals. Weeks af­ter the U.S. Supreme Court ruled that HHS can’t pe­nal­ize states for de­clin­ing to add new ben­e­fi­cia­ries to their rolls as pre­scribed in the law, a ma­jor­ity of states re­main op­posed or un­de­cided about go­ing along with the law’s Med­i­caid pro­vi­sions.

Politi­cians and pol­i­cy­mak­ers at the state and na­tional level are call­ing for HHS to pro­vide more clar­ity about the im­pli­ca­tions of the rul­ing, but health pol­icy ex­perts worry that state-by-state ne­go­ti­a­tions could spawn com­plex prob­lems. The ad­di­tion of at least 16 mil­lion more Med­i­caid ben­e­fi­cia­ries is a “cen­tral pil­lar” of the fed­eral health­care over­haul, one na­tional health pol­icy ex­pert noted last week.

More guid­ance is a pre­req­ui­site be­fore some states will de­cide whether to pro­ceed, ac­cord­ing to of­fi­cials in the of­fices of sev­eral un­de­cided gov­er­nors.

For in­stance, Arkansas Gov. Mike Beebe is a Demo­crat who wants to im­ple­ment the Med­i­caid ex­pan­sion but first wants as­sur­ances from HHS that it could have more flex­i­bil­ity than tech­ni­cally al­lowed by the law.

“What we want to know is if we go for­ward with the ex­pan­sion, will we be locked in re­gard­less of fu­ture eco­nomic prob­lems,” Matt DeCam­ple, a spokesman for the gover­nor, said in an in­ter­view.

The Pa­tient Pro­tec­tion and Af­ford­able Care Act does not al­low states in the fu­ture to trim Med­i­caid rolls by low­er­ing el­i­gi­bil­ity be­low the law’s thresh­olds. It’s not clear whether HHS, in light of the court’s rul­ing, may let states re­verse course down the road if they go along with the ex­pan­sion now.

Sev­eral na­tional or­ga­ni­za­tions, in­clud­ing the Na­tional Gov­er­nors As­so­ci­a­tion and the Na­tional As­so­ci­a­tion of Med­i­caid Di­rec­tors, are ask­ing for an­swers to that and other ques­tions raised by the rul­ing.

“We have a whole host of ques­tions about what does this mean for this pre­vi­ously manda­tory ex­pan­sion to now be op­tional,” Matt Salo, ex­ec­u­tive di­rec­tor of the Na­tional As­so­ci­a­tion of Med­i­caid Di­rec­tors, said at a July 17 Wash­ing­ton health pol­icy event. “But

these de­ci­sions are go­ing to have to get made, I think, rel­a­tively soon.”

As states wait for clar­ity on these is­sues, some are rais­ing the pos­si­bil­ity that fed­eral of­fi­cials will ne­go­ti­ate Med­i­caid ex­pan­sions with them in­di­vid­u­ally, as they do when states sub­mit Med­i­caid waiver ap­pli­ca­tions or plan amend­ments.

“States will look at this now as lever­age for bring­ing the ad­min­is­tra­tion back to the ta­ble,” said Den­nis Smith, sec­re­tary of the Wis­con­sin Depart­ment of Health Ser­vices.

Smith said at a July 17 health pol­icy event in Wash­ing­ton that he could en­vi­sion ne­go­ti­a­tions mov­ing well be­yond the scope of the num­ber of ben­e­fi­cia­ries his state’s pro­gram would add. For in­stance, the state may want to rene­go­ti­ate pro­vi­sions of the last waiver pro­posed by Wis­con­sin and re­jected by the CMS, in­clud­ing those re­lated to ben­e­fi­ciary pre­mi­ums and af­ford­abil­ity tests. “We wanted more tools for manag­ing the pro­gram,” he said.

Other gov­er­nors’ rep­re­sen­ta­tives told Mod­ern Health­care that they like­wise would be open to ne­go­ti­a­tions with HHS over the spe­cific el­e­ments of any ex­pan­sion, al­though none said they had al­ready re­quested the dis­cus­sions.

HHS of­fi­cials did not re­spond to ques­tions about whether such state-by-state ne­go­ti­a­tions are un­der way or planned. Ad­min­is­tra­tion and con­gres­sional sources in­di­cate the depart­ment and the CMS are scram­bling to un­der­stand the com­plex le­gal con­se­quences that the de­ci­sion had on the var­i­ous ex­ist­ing and planned el­e­ments of the Med­i­caid pro­gram. Af­ter the le­gal fall­out is clar­i­fied, HHS of­fi­cials will de­cide what ap­proach to take.

At least some con­gres­sional sup­port­ers of the Med­i­caid ex­pan­sion said they were not op­posed to the ad­min­is­tra­tion undertaking state-spe­cific ne­go­ti­a­tions in or­der to spur the ex­pan­sion.

“I be­lieve in fed­er­al­ism, so I do be­lieve in work­ing with the states,” Sen. Ben Cardin (D-MD.) said when in­ter­viewed about the pos­si­bil­ity of state-spe­cific ne­go­ti­a­tions. “Each state is dif­fer­ent; we can deal with some of the spe­cific prob­lems of states. We should be amenable to try to make the sys­tem work.”

But other sup­port­ers of the law were con­cerned that a ne­go­ti­ated ap­proach could lead to nearly end­less de­mands from states will­ing to walk away from ex­pan­sion.

“If I were HHS I would not want to be ne­go­ti­at­ing state by state be­cause the state holds all of the cards,” Alan Weil, ex­ec­u­tive di­rec­tor of the Na­tional Academy for State Health Pol­icy, said in an in­ter­view.

The po­ten­tial for myr­iad state de­mands in any ne­go­ti­a­tion makes it more likely that HHS will is­sue a range of ex­pan­sion op­tions from which states could choose, he said.

HHS agree­ing to in­di­vid­ual ne­go­ti­a­tions also could cause other states that have al­ready agreed to ex­pand to re­con­sider and de­mand their own ne­go­ti­a­tions, other pol­icy ex­perts said. The cu­mu­la­tive ef­fect could bog down the im­ple­men­ta­tion of the re­form law’s Med­i­caid ex­pan­sion, which is sup­posed to be ef­fec­tive in 2014.

While HHS of­fi­cials de­cide how they will pro­ceed, states have em­barked on their own re­views of what in­for­ma­tion they need to pro­ceed with an ex­pan­sion and that has in­cluded a large amount of feed­back from providers, in­sur­ers and pa­tient ad­vo­cates.

In Ohio, that re­view process has in­cluded try­ing to iden­tify a source for the es­ti­mated $940 mil­lion state share of im­ple­ment­ing Med­i­caid pro­vi­sions of the law un­re­lated to the el­i­gi­bil­ity ex­pan­sion, said Eric Pok­lar, spokesman for Repub­li­can Ohio Gov. John Ka­sich’s Of­fice of Health Trans­for­ma­tion.

“In the mean­time, we’re get­ting lob­bied by ev­ery­body that has an in­ter­est in this,” Pok­lar said in an in­ter­view. “And re­ally, ev­ery­one has an in­ter­est in it.”

AP PHOTO

GOP Wy­oming Gov. Matt Mead told the As­so­ci­ated Press, “My gut re­ac­tion to Med­i­caid ex­pan­sion is ‘no way.’ ”

AP PHOTO

Demo­cratic Arkansas Gov. Mike Beebe wants as­sur­ances of more flex­i­bil­ity from HHS than is tech­ni­cally al­lowed by the law.

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