Promoting, Dignity, Equality and Self-Determination

Washington Protection & Advocacy System

WPASCOMMENTS

Washington Protection & Advocacy System,
315 - Fifth Avenue South, Seattle, WA 98104
(206) 324-1521 (Voice) / (206) 957-0728 (TDD)
 

Date: October 19, 2001

Prepared by: Andrea Abrahamson and Phil Jordan

Washington State has expressed commitment to a progressive health care system for those who are uninsured and underinsured. The State claims that spiraling medical inflation accompanied with budget constraints and a nation facing shifts in health care concerns pose challenges for provision of State commitment in the coming years.

Subsequently, the 1115 Demonstration Waiver by DSHS’ Medical Assistance Administration, seeks to alter Medicaid provision in the State with cost-containment proposals, including curbing optional benefits and imposing premiums, copays and deductibles to those who fall within optional categories.

However, the proposed waiver seriously threatens the State’s commitment to provide medical coverage to the underinsured.

The waiver greatly jeopardizes viable health care options for the State’s vulnerable populations. It gives unprecedented authority to DSHS and to the State, in determining how to allocate Medicaid funding. It provides little or no public process. The waiver fails to accurately address the problem of medical inflation.

The waiver places the vulnerable populations, to which the state has expressed commitment, at greatest risk. This is the "optional" group, which stands to lose most via the proposed waiver. These are individuals who cannot afford health care premiums, and often go without insurance to save money. These are individuals who decide each month, which bills to pay and which can wait.

This is the group, just above the poverty level, hit hardest in times of economic recession. Examples of this population include those who are dually-eligible for Medicare and Medicaid, those with disabilities, many of whom may be working, or returning to gainful employment, those who are widowed, the elderly, those who live in nursing homes and skilled nursing facilities, low-income families, and immigrants and refugees.

The waiver threatens violation of the ADA via Olmstead v. L.C., 527 U.S. 581 (1999). The State’s implementation of the Olmstead Decision, required by law, ensures the State will provide individuals with disabilities the home and community-based services needed to live outside of an institution. Olmstead implementation is compromised via the waiver, as nearly all of these services fall under the Optional category of Medicaid. Such services include and are not limited to rehabilitative therapy, mental health services, physical and occupational therapy, personal assistance services, home health care, respiratory care, and durable medical equipment. The waiver could exacerbate the already-complicated process of attaining a wheelchair, for example, or make private duty nursing services unaffordable. Adding to the multiple barriers for those who critically need durable medical equipment and nursing care could force individuals back into institutions.

The State’s implementation of the bipartisan and federally mandated Ticket-To-Work is also in jeopardy by the proposed 1115 waiver. The waiver gives the State the authority to severely restrict access to durable medical equipment for people with disabilities. This undermines the State’s proposed commitment to remove disincentives for those with disabilities who desire to work. Individuals may be unemployable without the assistive technology needed to perform job requirements. Fear of loss of medical benefits, or imposed premiums and medical costs also impedes the quest for income and self-sufficiency for individuals with disabilities.

Those with the devastating diagnosis of breast cancer who obtain a disability determination wait 24-months for Medicare eligibility. Medicaid enrollment caps and waiting lists or unaffordable premiums could barricade optional breast cancer therapies, creating a situation where one could die waiting for life-saving treatment.

For optional groups with mental disabilities unaffordable premiums and co-pays could create an inability to pay for prescription medication. Self-prescribing medication for those who have mental health needs poses a serious threat. For those who need to be on medication to maintain housing and access to services, this could lead to increased rates of episodic homelessness. A reduction in mental health services could result in an increase in self-destructive behaviors and possible harm to others, with increased emergency room visits and crisis care needs.

For those forced into nursing homes, this waiver further complicates economic constraints, as many nursing-home residents have income which places them above the poverty level, while all resources and income are consumed by nursing home costs. Co-pays and premiums to this group could present devastating financial consequences.

It is unclear what impact the waiver could have on existing waivers, specifically the CAP waiver, the Mental Health Managed Health Care Waiver, and the COPES waiver. While the Medical Assistance Administration initially expressed that these waivers would not be implicated, it has since stated these groups would also be subject to the waiver. Potentially these waivers, which provide needed protection to several vulnerable groups, could be eliminated, altered or regulated via the broad-brush of the proposed 1115 waiver.

The proposal seeks permission to waive due process rights of individuals by asking to waive section 1902(a)(3). Although there have been assurances from MAA officials that this request would not be a part of the final waiver proposal, we remain concerned at this attempt to circumvent the rights of individuals applying for Medicaid to due process.

The proposal would further eliminate due process for those individuals already enrolled in optional programs who could experience program changes and expenses with no fair hearing provisions. A request to waive the legally required right to fair hearing gives the state extraordinary allowance in determining individual eligibility for Medicaid, while eliminating any recourse for individuals whose rights are violated.

The fact that these comments allude to many of the "potential" waiver implications is another problem. Because the waiver is so vague and all encompassing, it is unclear what exactly the state proposes to do with the waiver, failing to identify particular services or populations that will be affected. As the waiver focuses on cost-containment, it is worrisome to those who are aging and have disabilities, as these groups account for the greater share of Medicaid spending. Waiver clarification provided as to when changes would occur says only, "if they are needed to help sustain coverage."

Conflicting reports and sketchy information since the release of the September 24^th draft have generated misunderstanding and confusion around the intent of the proposed waiver.

Section 1115 waiver proposals are expected to include the public in the decision making process prior to the time a proposal is submitted. The opportunity for public involvement in this waiver proposal has been inadequate for several reasons.

1. DSHS inadequately informed the public about the opportunity to comment on the proposed waiver.
2. DSHS failed to provide the specifics of the proposal prior to the public’s opportunity to comment.
3. DSHS designed the waiver proposal to circumvent any meaningful public process.

The state Department of Social and Health Services (DSHS) has not given the public an adequate opportunity to comment on the proposed waiver. The public notice process has been hurried and has failed to adequately include many who receive optional services and would be directly influenced by the waiver changes. The process was generalized and misleading.

DSHS arranged meetings for public comment without adequately informing the public that the meetings were an opportunity to comment on the proposed waiver. The announcement of the "Community Conversations makes no mention of the proposed waiver (to view a copy of the DSHS announcement of Community Conversations, see appendix A).

Furthermore, the Community Conversations flyer circulated by DSHS states that

We listened to your ideas about improving publicly funded medical care. Now we want to tell you how we’re using what we learned and where we are going in the upcoming years. Don’t miss the news!
 

This notice implies that public comment period has ended, and that DSHS will be informing the public of its intentions, NOT inviting the public to comment on an important change in state Medicaid policy.

Secretary Braddock released a memo on August 22 (see appendix B) that stated the Department’s intention to seek this waiver. The first four Community Conversations had already taken place. Organizations and individuals in the areas surrounding Spokane, Colville, Vancouver, and Aberdeen – where these Community Conversations took place – had no opportunity to have knowledge of the proposed waiver.

Secretary Braddock’s August 22 memo was sent only to those who the Department deemed to be "interested parties." It cannot be considered adequate public notice. The Department did not publicly state their intention to seek this waiver until September12 (see appendix C). The Community Conversation in Bellingham had been held two days previously, and individuals and organizations in that area could not be expected to be aware of the proposed waiver. The remaining Community Conversations in Wenatchee (September 13), Tri-Cities (September 14), and Seattle (September 17) – took place within five days of the Department’s press release.

The Community Conversations failed to provide an adequate opportunity for people with disabilities to access the public process. The times and actual locations of many of the meetings were not publicized on the flyer. The Department added several Community Conversations subsequent to the release of the flyer. Inadequate notice of these meetings made attendance difficult or impossible for many of the individuals with disabilities because of transportation barriers and the time needed to request accommodations. On at least one occasion, DSHS personnel were unable to inform a caller who requested the time and location of a meeting, and failed to call the individual back with that information. The individual called a second time, and was still unable to get the relevant information.

All of the public meetings publicized by DSHS in their original flyer (see appendix A) took place prior to the release of the draft waiver proposal on September 24^th, 2001. The Department did add several Community Conversations subsequent to the release of the flyer, but it is questionable at best that these meetings were adequately publicized. Furthermore, only one of those meetings occurred after the release of the proposal, and that took place the day following release of the draft waiver proposal (September 25).

The public had no opportunity to see the specifics of the proposal prior to the Community Conversations that ostensibly afforded them an opportunity to comment.

To view a timeline of the public process provided by the Department, please see Appendix D.

This waiver proposal allows the Legislature to make alterations in Medicaid services at unspecified times in the future without providing opportunity for public comment on those modifications.

The Department is responding to criticisms of potential impacts of this waiver by declaring that they are not actually proposing specific changes in Medicaid services in this proposal – they only hope to gain flexibility. It is the Legislature, the Department contends, that will make decisions on changes in the state Medicaid plan. However, by gaining this flexibility, the State gains the ability to make any specific changes without any public input. Changes in services could be accomplished behind closed doors using a simple budget proviso.

The State should not seek a waiver that effectively takes citizens "out of the loop" of public policy discussions, especially when the individuals who are most affected by policy changes will be shut out of those discussions.

It is evident that little or no public input has been accumulated in regard to the sweeping changes proposed by MAA. Should Health and Human Services approve this proposal, even less room for public comment will exist. This gives the State unbridled discretion, allowing the state broad authority to make changes to services as it chooses.

It is not clear what successful cost-containment savings could be attained via the waiver. Indeed the public has been made aware of no cost benefit analysis. It is questionable premiums and co-pays could generate the needed dollars for MAA. Fluctuating family incomes, increased variable benefits, charges contingent upon varying poverty levels, and recurring enrollment, disenrollment and re-enrollment, could cause MAA to incur administrative expenses that are greater than the proposed newly-generated funds.

Enrollment caps and dropping coverage for those who fail to pay premiums could generate savings, at the great expense of those unable to attain medical care. The waiver potentially contributes to an increasing number of uninsured who avoid enrollment because of premium and co-pay expenses. This also lends to loss of preventative health care, which could in turn precipitate increased emergency room visits or hospitalization.

The State claims medical inflation accompanied by budget constraints helped create the waiver, but the waiver does not address this. Medical Assistance Administration faces budget cuts of 15%. Low provider reimbursement has generated an exodus of providers from both Medicaid and Medicare Managed Health care programs. According to the Henry J. Kaiser Foundation, the average retail price of prescription drugs grew 60% between 1991 and 1998. Washington State-based outreach to dually-eligible individuals has demonstrated an increased number of elderly, and those with disabilities, who are self-prescribing lower dosages of medicines, or compromising grocery purchases or payment of bills in lieu of prescription costs, even racking up credit card debt. AARP has been a strong lobbying voice for a national prescription program, which has yet to see fruition.

The waiver fails to take into account other fiscal options, such as utilizing federal matching funds. A $960 million windfall generated via a previously untapped source, generated through nursing home care federal match could offset some Medicaid program expenses over the next five years. A recent paper issued by The Center on Budget and Policy Priorities, proposed national Medicaid improvements, including a temporary lift on match rates, to help states in times of economic downturn. While the demonstration waiver boasts expansion, the only evident expansion appears to occur via increased utilization of SCHIP dollars, which is something MAA has previously considered, and something which can happen independently of the proposed waiver.

The proposal for a massive change has not had adequate public airing; in light of this, if the waiver is approved, we think it is critical for it to contain a formal, well-developed set of public processes that include clients and potential clients, to occur before the State takes any and every action under waiver authority.

It is also critical that sweeping Medicaid changes not be made at the expense of its vulnerable populations, and careful consideration be given to other cost-reduction methods. The approach suggested by the waiver seems to replicate a "rob Peter to pay Paul" method of saving Medicaid costs. In times of economic uncertainty, the demonstrable ramifications of this waiver, for those who greatly need medical care, and represent some of our state’s most vulnerable citizens, outweigh the elusive and unproven cost-containment benefits.

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Washington Protection & Advocacy System
315 - Fifth Avenue South, Suite 850
Seattle, WA     98104
*Phone: (206) 324-1521 or in Washington State: (800) 562-2702
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E-mail: wpas@wpas-rights.org
URL: http://www.wpas-rights.org