February 21, 2013
VIA ELECTRONIC SUBMISSION (Comment Tracking Number: 1jx-83t8-xn0n)
Centers for Medicare & Medicaid Services
Department of Health and Human Services
P.O. Box 8016
Baltimore, MD 21244-8016
Attention:CMS-2324-P
Medicaid, Children’s Health Insurance Programs, and Exchanges: Essential Health Benefits in Alternative Benefit Plans, Eligibility Notices, Fair Hearing and Appeal Processes for Medicaid and Exchange Eligibility Appeals and Other Provisions Related to Eligibility and Enrollment for Exchanges, Medicaid and CHIP, and Medicaid Premiums and Cost Sharing
Dear Sir/Madam:
Thank you for the opportunity to comment on CMS–2334–P, “Medicaid, Children’s Health Insurance Programs, and Exchanges: Essential Health Benefits in Alternative Benefit Plans, Eligibility Notices, Fair Hearing and Appeal Processes for Medicaid and Exchange Eligibility Appeals and Other Provisions Related to Eligibility and Enrollment for Exchanges, Medicaid and CHIP, and Medicaid Premiums and Cost Sharing” (hereinafter referred to as “the proposed rule”).
The Center for Children and Families is a center based at Georgetown University’s Health Policy Institute with the mission of improving access to health care coverage among the nation’s children, particularly those in low-income families. As such, we have a long history of conducting analysis, research and advocacy on issues relating to children’s enrollment in Medicaid, CHIP and other health insurance programs.
We are attaching detailed comments on the proposed rule, but also would like to highlight in this cover letter those issues that we believe it is most important to address in the final rule from a children’s health perspective.
- Adopt a specific timeframe and set of procedures to ensure states are ready to implement the single, streamlined application by October 1, 2013.
We are deeply concerned that a number of states are at risk of not being ready by October 1, 2013, the first day of the initial open enrollment period, to accept and act upon the single, streamlined application for coverage. In particular, our concern is that some states will not be prepared to act upon an FFE finding that an individual is eligible for Medicaid or CHIP, and enroll eligible the individual in coverage. If this happens, it will be particularly harmful to children for the simple reason that they are far more likely than their parents to be found eligible for Medicaid or CHIP. To prevent a messy start to ACA implementation with children and others falling through the cracks, we recommend that HHS include in the final rule a clear timeframe and set of procedures for ensuring states are prepared for the initial open enrollment. Moreover, if a state cannot demonstrate its preparedness in advance of the initial open enrollment period, the final rule should require it to treat an FFE finding of Medicaid or CHIP eligibility as final until such time as the state develops its own independent capacity to conduct such determinations in full compliance with federal law.
- Eliminate CHIP waiting periods to ensure that children do not go uninsured or experience disruptions in care.
We urge you to reconsider the decision in the proposed rule to allow states to continue to impose waiting periods in CHIP. In a post-ACA universe when nearly everyone is expected to have health insurance, it makes no sense to require uninsured children to wait up to 90 days to enroll in CHIP. Such a policy will only delay children’s access to needed care and create confusion and hardship for families. While the proposed rule allows these uninsured children to temporarily enroll in APTC-funded coverage while awaiting CHIP, we see no evidence that either the federal government or states have the enrollment systems in place to smoothly implement such a plan. To the contrary, the proposed policy represents an administrative mess of red tape for families that could result in many children falling through the cracks and remaining uninsured. Even if some children are able to temporarily secure subsidized Exchange coverage while awaiting the end of a CHIP waiting period, it defies common sense to deliberately construct a system of coverage for children that actively promotes disruptions in the continuity of their care. We strongly urge HHS to eliminate waiting periods in the final rule.
- Retain and strengthen the role of certified application counselors in helping families secure coverage.
We strongly support the creation of a certified application counselor program (CAC) for Medicaid and CHIP with a parallel or coordinated program in the Exchange. Based on our years of work on the best strategies for enrolling children in Medicaid and CHIP, we believe that community-based application assisters, including community health centers and health care providers, have an essential role to play in connecting people to coverage under the ACA. In many instances, they will be the most trusted source of help and assistance among low and moderate-income families who are the primary targets of the ACA’s coverage initiatives. Moreover, the reality is that such organizations are likely to be deeply involved with helping people secure coverage, with or without certification. By retaining and strengthening the CAC program, the final rule can ensure that these organizations and individuals have the training and skills that they need to operate effectively, and that they are subject to appropriate oversight.
- Ensure that the infants of all women enrolled in Medicaid or CHIP are automatically signed up for coverage for the first year of life.
We support much of the language in the proposed rule outlining the procedures by which infants born to pregnant women on Medicaid or CHIP should be deemed automatically eligible for 12-months of coverage (Medicaid or CHIP, as appropriate). However, the final rule could and should be strengthened in some key respects. Specifically, we recommend that it require that all infants born to women covered by Medicaid or CHIP be treated as deemed newborns, including those born to women enrolled in Medicaid under a §1115 waiver and to young women enrolled in CHIP as targeted low-income children. Congress now has passed laws on the deemed newborn issue on more than one occasion, and it seems clear that it intends for all infants born to women enrolled in Medicaid or CHIP to be guaranteed health care coverage during their first year of life, including those who move to another state at some point during the baby’s first year of life. We strongly recommend that the final rule should adopt the proposed changes to eliminate any lingering gaps in coverage for newborns, as well as add specific language clarifying the long-standing requirement that states conduct a redetermination of an infant’s eligibility for coverage prior to his or her first birthday.
- Provide former foster care children with a secure source of coverage up to age 26 even if they move to a new state.
We are very concerned with the proposed rule’s interpretation of eligibility for the Medicaid coverage made available by the ACA to former foster care youth up to age 26. The proposed rule unnecessarily limits the availability of this coverage to youths aging out to the state where they were in foster care. We believe Congress intended that Medicaid coverage be available to former foster care youth regardless of where they are living until age 26. Indeed, Senator Mary Landrieu, the chief sponsor of the provision, stated on the floor of the Senateon December 22, 2009: “I was proud to work on a provision that Leader Reid included in this bill toensure that every young person who ages out of thefostercaresystem will be able to stay on Medicaid until the age of 26 starting in 2014(italics added).” Not only was such a reading intended by Congress, but we believe that the statutory language of the ACA allows HHS to interpret the foster care provision to apply to all youths aging out of care, regardless of whether they continue to reside in the same state in which they were in care.
- Retain and strengthen the proposed simplifications to paper-based documentation of citizenship
We commend HHS for streamlining the complicated, paper-based requirements of citizenship verification put into place in 2006. These regulations have proven burdensome and costly over the years, and resulted in the denial and delay of coverage for numerous citizen children, pregnant women and parents. Even with the growing use of electronic verification of citizenship, there will be times when paper documentation is needed in the years ahead and so we believe the proposed streamlining of the process and the simplification of acceptable documents represent a significant improvement. We particularly support the proposal to accept copies of documents or affidavits; the clarification that citizenship verification is never required for newborns whose delivery was covered by Medicaid or CHIP; and the policy that once citizenship has been verified for an individual, it need not be re-verified at renewal or after a break in coverage.
- Adopt a more inclusive definition of “lawfully present.”
The definition of the term “lawfully present” can be a life-or-death matter, determining which immigrants will be eligible for coverage through the Exchanges, which children and pregnant women will be eligible for federal Medicaid and CHIP in about half the states, and which immigrants will be left with no option for affordable health coverage. We support the most inclusive definition possible, that all who are lawfully present for immigration purposes should be considered lawfully present for purposes of health care and coverage. In light of the high stakes associated with having health insurance, we do not believe that HHS should give undue weight to administrative considerations, such as ease of electronic verification through the DHS SAVE system, when finalizing its decisions about who is included in the definition of lawfully present. An inclusive definition, of all those who are lawfully present, best fulfills the ACA’s goals of expanding access to affordable health coverage and more effectively spreading risk across a larger pool of covered individuals.
- Clarify the cost-effectiveness test for premium assistance.
As states consider new options with respect to the intersection of public and exchange based coverage, it is essential that a strong cost-effectiveness test be applied to ensure that taxpayer dollars are spent wisely and that beneficiaries do not lose important benefits and cost-sharing protections should a state pursue this route. To that end, we recommend thatthe final rule clarify that the cost of a cost-sharing wraparound is included in the cost effectiveness test. As currently drafted, the proposed rule could be interpreted to include only the cost of premiums to purchase coverage, and not include in the test the costs associated with paying for copayments, deductibles and other cost-sharing requirements. We believe this should be clarified to include cost-sharing explicitly. Such a clarification would reflect the statutory definition of cost-effectiveness codified in CHIPRA that relies on the concept of comparable coverage. It is our view that “comparable coverage” clearly incorporates the inclusion of cost-sharing limits into the cost-effectiveness test, and we are concerned that the proposed regulatory language does not clearly do so.
Table of Contents
I. Medicaid Eligibility Expansion Part II
MEDICAID ELIGIBILITY AND ENROLLMENT CHANGES
CITIZENSHIP DOCUMENTATION AND OTHER VERIFICATION PROCEDURES
FOSTER CARE CHILDREN
CONSUMER ASSISTANCE
COORDINATED MEDICAID/CHIP OPEN ENROLLMENT PROCESS
CHIP CHANGES
PREMIUM ASSISTANCE
ELECTRONIC SUBMISSION OF THE MEDICAID AND CHIP STATE PLAN
CHANGES TO MODIFIED ADJUSTED GROSS INCOME AND MAGI SCREEN
SINGLE STATE AGENCY: DELEGATION OF ELIGIBILITY DETERMINATION TO EXCHANGES
II. ESSENTIAL HEALTH BENEFITS IN ALTERNATIVE BENEFITS PLANS
III. ELIGIBILITY APPEALS AND OTHER PROVISIONS RELATED TO ELIGIBILITY AND ENROLLMENT FOR EXCHANGES
IV. MEDICAID PREMIUMS AND COST-SHARING
I. Medicaid Eligibility Expansion Part II
MEDICAID ELIGIBILITY AND ENROLLMENT CHANGES
Extended and Continuous Eligibility for Pregnant Women and Hospitalized Children (§435.170 and §435.172)
We strongly support the provisions in §435.170 and §435.172, which further clarifies the statutory language in Title XIX that requires 1) pregnant women to be provided with continuous eligibility for coverage through the last day of the month in which the 60-day post partum period ends (including if they originally were enrolled via presumptive eligibility), and 2) hospitalized children to remain eligible for Medicaid – even if they otherwise would age out – through the end of a Medicaid-covered inpatient stay. By implementing these statutory requirements with greater clarity, the proposed regulation would help to promote continuity of care for two groups where it is of the utmost importance – pregnant women and hospitalized children.
§457.355 Financing of CHIP presumptive eligibility
The preamble to the proposed rule suggests that states might not be able to secure CHIP financing for the cost of providing presumptive eligibility to children enrolled in a CHIP-financed Medicaid expansion. We believe that this was unintended and ask that the final rule clarify that a state can use Title XXI funds for children covered for a presumptive eligibility period under Title XXI-funded Medicaid or separate state program CHIP coverage.
§435.117 Deemed newborn children
In general, we strongly support the language in the proposed rule making it clear that babies born to all pregnant women covered under a Medicaid state plan, including those covered on a retroactive basis, under a Medically Needy category, and for emergency services only, should be deemed newborns.
Add deemed newborn coverage to pregnant women enrolled in 1115 waivers. In the final rule, we encourage you to add that women who become pregnant while enrolled in an 1115 waiver should also have their babies treated as deemed newborns. If this step cannot be taken, then we encourage HHS to require states to alert women who become pregnant while enrolled in 1115 waiver coverage of the importance of informing the state of their pregnancy and potentially securing an evaluation for Medicaid eligibility under a state plan. The state should be obligated to provide women with the pros and cons of securing the “regular” rather than the 1115 waiver Medicaid coverage, including the opportunity to receive a year of stable coverage for their newborns.
Make deemed newborn coverage mandatory for children who move across state lines. We appreciate that HHS has proposed giving states the option to treat babies who are moved within their first year of life as deemed newborns, but we believe the Congress intended for the deemed newborn provision to protect all babies born to women enrolled in Medicaid, including those who happen to move during their first year of life. We encourage you to convert the option to a requirement that states provide deemed newborn coverage to babies regardless of the state in which they were born.
Adopt a simple policy of deemed newborn coverage for all babies born to women enrolled in separate CHIP programs. We believe that Congress clearly intended for all babies born to pregnant women enrolled in Medicaid or CHIP to secure a year of stable coverage during the critical first 12 months of life. So, we encourage you to make it a requirement that states provide deemed newborn coverage to any baby born to a woman enrolled in CHIP, regardless of whether she happens to be enrolled as a targeted low-income pregnant woman or targeted low-income child. Not only is such a policy more consistent with congressional intent, but it would greater simplify administration of the deemed newborn policy. Otherwise, to secure deemed newborn coverage for her baby, a pregnant teenager would need to alert her state to her pregnancy and request to be switched from the category of “targeted low-income child” to “targeted low-income pregnant woman”. Such a policy would be silly and burdensome on pregnant teenagers and states alike, and would be entirely unnecessary if HHS simply adopted a clean requirement that all babies born to women enrolled in separate CHIP programs should receive deemed newborn coverage.
Ensure that deemed newborns do not lose coverage at the end of their deemed period. Deemed newborns (in Medicaid or CHIP) are subject to significant churn because some states do not offer a specific renewal process for deemed newborns given the specificity of the group’s eligibility ending at one (1) year of age. To address the problem that exists at renewal more directly, CMS should specifically state in the proposed rule or in sub-regulatory guidance that deemed newborns are subject to same renewal processes as required of other Medicaid beneficiaries.
§435.1100-1103 Presumptive eligibility
Keep presumptive eligibility streamlined by using only a gross income standard for eligibility determination. We support that the state may continue to use gross income as the standard for determining presumptive eligibility (§435.1102(a)). However, allowing states to alternatively require that qualified entities make a reasonable estimate of MAGI household income using simplified methods prescribed by the agency is likely to make it more difficult for qualified entities.