MH: CMS Overhaul Of Medicaid May Face Legal Challenges

Wednesday, November 8, 2017

CMS Overhaul Of Medicaid May Face Legal Challenges
By Virgil Dickson Modern Healthcare November 7, 2017

The CMS will approve requests coming in from various states to impose work requirements on Medicaid enrollees, according to CMS Administrator Seema Verma. While only a handful of states have asked for waivers for the requirement, others could follow.

The move could drastically change the direction of Medicaid. But experts say the CMS will likely face legal challenges to the waivers if granted.

Verma's remarks come days after New Hampshire became the latest state to submit its request to impose work requirements in its Medicaid enrollees. Arkansas, Arizona, Indiana, Kentucky, Maine, Utah and Wisconsin also have pending requests waiting for approval.

Given Verma's past experience as a consultant drafting these types of policies for states like Indiana, it was curious that the agency hadn't already approved the requests. Kentucky has been waiting for over a year for a response.

Opponents of the work requirement policy say it's a contradiction of the purpose of Medicaid, which was established by Congress in 1965 to provide coverage to low-income people.

The CMS can only offer waivers in states that want to experiment in Medicaid but continue to ensure coverage for low-income people, said Eliot Fishman, who oversaw 1115 waiver demonstrations for the Obama administration and is now senior director of health policy at Families USA.

But work requirements could cause as many as 11 million people to lose coverage if every state imposed them, according to a Health Affairs study published earlier this month. Despite giving people with disabilities an exemption from the requirement, many beneficiaries may have physical or mental limitations that prevent them from working, but don't qualify them as disabled.

The Health Affairs study notes that the waivers do not take into account that some people in active treatment may not technically be disabled, but really can't work.

Verma said the Obama administration's opposition to the waivers contradicted its approval of waivers that created voluntary work programs for people with disabilities.

Sara Rosenbaum, a professor health policy at the George Washington University, isn't convinced.

Verma did not indicate how soon the outstanding waiver requests would be approved.

But she did say the agency would be making changes to the Medicaid waiver process.

These include:

· Clear time lines will be provided under which a decision will be made on a waiver request
· Routine proposals and renewals will get fast-track approval
· States requesting a waiver that's similar to another state's will also be approved more quickly
· State waivers can last up to 10 years if they are shown to be successful. That's up from the usually three- to five-year period in place now.

"This will relieve the burden of states having to come back to the CMS time and time again, increasing administrative costs for taxpayers, and detracting our focus from improving the health outcomes of our beneficiaries," Verma said.

Mann questioned whether federal law allows 10-year waivers. HHS can not permanently change a law, it only has the authority to approve experiments that maintain the original intent of the law.

"The question is whether a 10-year waiver approval is no longer an experiment, pilot or demonstration and therefore exceeds … authority," Mann said.