New federal requirements intended to end states’ practices of proposing experiments that alter their residents’ access to Medicaid without public participation didn’t work in Florida. That’s because the rules assume that states just need prompting to be more open, not that they are determined to not be open.
Florida’s problem-riddled 5-county Medicaid Reform experiment was launched in 2005 when the state received a “Section 1115” Medicaid Waiver from the federal Centers for Medicare and Medicaid Services (CMS). Under this type of waiver, the broadest available, state and federal officials negotiate an agreement that rewrites and replaces many of the usual Medicaid laws.
At that time, the Reform experiment was approved in record time, without transparency or meaningful opportunities for public participation. As a result, many provisions of the Waiver were problematic or even meaningless, contributing to the experiment’s mounting problems over time.
In response to concerns about Florida’s and other states’ actions, language was included in the Affordable Care Act requiring that all new proposed 1115 Waivers meet standards for transparency and public participation. This new law and resulting regulations replaced guidelines that had been in place since 1994.
Last month, AHCA, Florida’s Medicaid agency, submitted an 1115 Waiver application seeking major changes to the Medically Needy program, which serves patients who are over-income for regular Medicaid but have catastrophic medical expenses.
So how did these new standards change Florida’s attitudes about transparency? Well, they at least affected AHCA’s actions to a degree. AHCA did announce, with the bare minimum seven days required advance notice, that it had scheduled the bare minimum two required public workshops. AHCA met the bare minimum requirement to allow telephone access to a workshop, as the line was “listen only”. Posted on AHCA’s website, if you knew where to look and click, were the required public notice documents. AHCA did collect comments for the bare minimum 30 days required, quietly submitting its Waiver application 10 days later.
This grudging, minimalist approach to public participation is not surprising. Indeed, AHCA’s previous attempt to submit a Medically Needy-related Waiver application occurred one day before the new transparency rules took effect.
There’s more, however. AHCA in fact did not meet all of the minimum requirements. The Waiver application must explain how comments submitted by the public were addressed. AHCA reported to CMS that it had not only done so, but that it had responded to issues raised by all commenters. Yet Florida CHAIN’s timely submitted comments were not acknowledged, posted on AHCA’s website, or addressed in the application.
Ultimately, however, the concern is not about an inadequate process. Rather, it’s that a lack of real process blocks real issues that affect real patients from being raised and addressed.
So why refuse to respond to comments as required? CHAIN’s comments themselves shed light on that; in short, for many of the objections raised, no legitimate response exists. AHCA devotes considerable effort in the public notice document to misrepresenting and even concealing the actual effects of the proposal.
The proposal mandates that Medically Needy recipients enroll in and pay premiums to managed care plans. In return, they are supposed to receive much-needed continuous coverage, rather than qualify on a month-to-month basis by meeting “share of cost”.
It sounds good. What the document takes great pains to avoid addressing, however, is the cruel reality that these premiums will be unaffordable to virtually every Medically Needy patient, and in fact could absorb up to 90% of his or her family income each and every month. It’s true that the premium amount cannot exceed a patient’s share of cost, but patients currently do not have to pay share-of-cost directly out of their own pockets.
So the questions Florida CHAIN asked are ones that cannot be answered, such as how a patient with catastrophic medical needs could survive on $200 a month while paying many times that amount in Medicaid premiums, or how CMS could be expected to approve a proposal that runs afoul of federal laws that it has no authority to waive.
Answering these questions would require acknowledgement of the state’s approach to all of its Medicaid managed care initiatives, namely avoiding discussion of the impact on vulnerable recipients whenever possible, and misrepresenting reality when avoidance is impossible.
Fortunately, now that the Waiver application has been submitted, CMS will directly accept comments on the proposed changes here until January 9th.