In­di­ana skipped le­gal steps in re­quest­ing Med­i­caid waiver

Modern Healthcare - - REGIONAL NEWS - —Vir­gil Dick­son

In­di­ana’s re­quest to have a Med­i­caid work re­quire­ment could be legally chal­lenged be­cause state of­fi­cials did not al­low for any pub­lic com­ment on the con­tro­ver­sial re­quest.

The state asked for the amend­ment when ap­ply­ing to re­new its Healthy In­di­ana Plan 2.0 waiver. In­di­ana wants Med­i­caid ben­e­fi­cia­ries to be em­ployed or search­ing for work to be el­i­gi­ble for the pro­gram.

In a no­tice, the CMS said In­di­ana’s re­quest met the nec­es­sary statu­tory re­quire­ments. But St. Louis Univer­sity health law pro­fes­sor Sid­ney Watson be­lieves the CMS, which is now led by a pro­po­nent of work re­quire­ments, is not fol­low­ing its own rules.

The Af­ford­able Care Act re­quires a 30-day pub­lic no­tice and com­ment pe­riod for 1115 waiver re­quests. The pub­lic com­ment on In­di­ana’s work re­quire­ment doesn’t end un­til June 23, but In­di­ana submitted its re­quest to the CMS on May 25, a day af­ter it an­nounced its pro­posal to the pub­lic. A spokesman for In­di­ana’s Med­i­caid agency de­ferred a re­quest for com­ment to the CMS. A CMS spokesman did not re­turn calls.

Although the CMS in a 2012 guid­ance ex­empted amend­ments to ap­proved 1115 waivers from the no­tice­and-com­ment process, the re­newal ap­pli­ca­tion for HIP 2.0 has not yet been ap­proved. Amend­ments to pend­ing re­quests aren’t sub­ject to the guid­ance.

“Since re­newals are sub­ject to no­tice and com­ment and this es­sen­tially changes the re­newal, I think there is a strong ar­gu­ment that it should be sub­ject to no­tice and com­ment,” said Judy Solomon, vice pres­i­dent for health pol­icy at the Cen­ter on Bud­get and Pol­icy Pri­or­i­ties.

“This ap­pears to be a re­ver­sal of that pol­icy,” said Joan Alker, ex­ec­u­tive di­rec­tor of the Ge­orge­town Cen­ter for Chil­dren and Fam­i­lies, adding that the Obama ad­min­is­tra­tion ad­hered to the guid­ance. “Clearly the state is not look­ing for mean­ing­ful feed­back.”

While skip­ping the full no­tice­and-com­ment pe­riod could open In­di­ana’s amend­ment up to lit­i­ga­tion, it wouldn’t stop the work re­quire­ment from go­ing into ef­fect, only de­lay it. The CMS could have In­di­ana re­sub­mit the re­quest af­ter it com­plies with the com­ment rules, ac­cord­ing to Jen­nifer Evans, a man­ag­ing part­ner at the law firm Polsinelli.

Sev­eral other states, in­clud­ing Ari­zona, Ken­tucky, Maine and Ohio are among those look­ing to have work re­quire­ment pro­vi­sions.

HIP 2.0 was de­vel­oped by CMS Ad­min­is­tra­tor Seema Verma and fed­eral Med­i­caid di­rec­tor Brian Neale when they worked in the ad­min­is­tra­tion of In­di­ana Gov. Mike Pence, who is now vice pres­i­dent. The plan re­quires mem­bers to make pre­mium con­tri­bu­tions, have health sav­ings ac­counts, and face a ben­e­fit lock­out if they don’t pay pre­mi­ums.

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