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March 5, 2012
TOPEKA Federal officials on Feb. 22 published new rules intended to make the Medicaid waiver process more open and responsive to public concerns.
The new rules, which become effective April 27, could have bearing on the Medicaid waiver request the administration of Gov. Sam Brownback is preparing to submit to the U.S. Department of Health and Human Services as part of its effort to expand managed care within the state’s Medicaid program.
The new rules would require states to issue public notice and have at least two public hearings on Section 1115 waiver requests at least 30 days before the applications are submitted to federal officials. Then, federal officials would have to allow another 30 days for public input before approving the requests. Federal officials also would have to take at least 45 days to issue a decision.
Waivers are mechanisms states can use to test new or existing ways to deliver and pay for Medicaid services. There are four primary types of waivers or demonstration projects.
One type, Section 1115 research and demonstration projects, allows states the broadest latitude to test new approaches. This type of waiver also allows the secretary of Health and Human Services the widest authority to reject or deny.
There is no specific timeline or method for applying, though states typically will provide a concept paper before or in conjunction with the waiver application. The applications generally involve considerable negotiation and discussion with federal officials before the request is approved or denied.
More than 35 states have received 1115 waivers in the past three decades. Most often, those approved have included some component that expands Medicaid coverage or services to populations that otherwise would not be eligible. The Kansas proposal, at least as outlined in the state’s concept paper and contract bidding documents, would not extend services to those not already eligible.
Brownback officials told KHI New Service that they are hoping a series of public forums they held last summer as they were developing their KanCare plan and subsequent legislative hearings and meetings with various interest groups will satisfy the new federal requirements for public input.
But it is still not clear if that will be the case.
“Kansas has been true to the spirit of transparency that drives the new rule,” said Kari Bruffett, assistant secretary for policy and external affairs at the Kansas Department of Health and Environment. “We've made the concept paper and other supporting documents publicly and widely available, solicited public comments and consulted with stakeholders, legislative committees and constituents, and will continue to do so throughout the process leading to implementation.”
But Bruffett said federal officials haven’t yet said definitively whether the administration’s process will meet the new standards, which were first spelled out in draft regulations in September 2010, predating the governor’s election.
Apparently, the decision will hinge on whether federal officials will count as an “active” application the concept paper that Kansas officials submitted to the federal Centers for Medicare and Medicaid Services three weeks before the new regulations were finalized.
The nine-page concept paper delivered on Jan. 26 described — in quite broad and general terms — what the state’s waiver requests would look like once they are fully submitted.
“CMS has advised that the rule doesn't apply to active applications,” Bruffett said. “While we consider our concept paper an application, we have asked CMS to give us direction on additional elements they want to see us add at this point in the process. We think our document satisfies most of the newly delineated requirements for applications, but we are always happy to work with them.”
Joan Alker, a Medicaid expert at Georgetown University, has studied the new regulations. She said they make it clear that a concept paper will not count as an application. If Kansas officials don’t submit the actual waiver request before April 22, when the new rules become effective, the state will be obliged to meet the new standards, she said.
The new federal rules were introduced in response to changes in the waiver process that Congress included in the Affordable Care Act. Those changes in the law came after reports that HHS had done a poor job of making the waiver process transparent and responsive to public input.
Those concerns were heightened by a couple of relatively speedy waiver approvals during the administration of President George W. Bush, including a so-called global waiver for Rhode Island approved in the administration’s final days and an earlier approval of a waiver request from Florida when the president’s brother, Jeb Bush, was governor of that state. That request was approved after only eight days, which is thought to be a record. The Medicaid waiver process more often takes months or years to complete.
“The (new) rule specifies that the public must have a ‘sufficient level of detail to ensure meaningful input’ for the public comment process,” Alker said. “In the past, states have often not offered up enough detail to the public to allow for meaningful input. For example, the regulation specifies that the application must include a description of the specific populations that will be affected, projected enrollment changes for each population, expenditure changes and the particular provisions of federal law that the state is seeking to waive.”
So far, the KanCare plan, or portions of it, has met most resistance from advocates for the developmentally disabled. Representatives of the state’s Community Developmental Disability Organizations (CDDOs) have said they don’t want long-term services for the developmentally disabled included in the plan. Hundreds of people have gathered at public meetings to express their concerns with the KanCare plan.
Tom Laing, executive director of Interhab, the association that represents the state’s CDDOs, said he didn’t think the public forums that the Brownback administration had before the KanCare plan was crafted and announced in November 2011 would meet the new federal standards for public involvement.
“The big public meetings they held were cattle calls,” Laing said. “It was a dog-and-pony show with no hardcore specifics about what they were going to do. It was pretty much an opportunity for them to begin to sell the idea that we’re going to do something, so get used to it. I don’t regard those as public hearings on the proposal at all.”
The new federal rules would require states to specifically describe in their waiver requests how the applications were influenced by public input. State officials also would have to consult American Indian tribes before submitting their proposals to federal officials.
The KHI News Service is an editorially independent initiative of the Kansas Health Institute and is committed to timely, objective and in-depth coverage of health issues and the policy making environment. Find more about the News Service at khi.org/newsservice or contact us at (785) 783-2529.