State is moving ahead with regulations for its new Medicaid plan though it’s still vacated by a federal court

By Melissa Patrick
Kentucky Health News

Though Kentucky’s proposed Medicaid plan was vacated by a federal judge just days before it was set to go into effect on July 1, regulations for the changes have been proposed, and public comments were taken at a hearing Aug. 27.

The new plan, called Kentucky HEALTH for “Helping to Engage and Achieve Long Term Health,” would require able-bodied adults who are not primary caregivers to work, attend school, take job training or volunteer 80 hours a month, or enroll in a drug-treatment program if appropriate. It also includes small, income-based premiums and lock-out periods for non-compliance, among other things.

A federal judge in Washington, D.C., vacated the plan on June 28, saying that the U.S. Department of Health and Human Services had not sufficiently considered the state’s estimate that in five years Kentucky’s Medicaid rolls would have 95,000 fewer people with the plan than without it, largely for non-compliance with its requirements. The judge sent the plan back to HHS for more review.

HHS reopened public comment for 30 days ending Aug. 18. A random sample of 200 comments by Kentucky Health News found opponents outnumbering supporters by 7 to 1. The liberal-leaning Kentucky Center for Economic Policy said it examined the 9,397 unique comments and found that 96 percent were unsupportive, while only 4 percent were supportive, a ratio of 24 to 1.

After the hearing on the regulations, “Opponents of the Medicaid changes questioned why the state was pushing ahead with the regulatory process when the Medicaid changes are in limbo,” The Associated Press reported.

“We think that it’s confusing to have regs filed on something that a federal judge has determined illegal and has blocked,” said Emily Beauregard, executive director of Kentucky Voices for Health. “They’ve made no adjustments to this to address the concerns of the judge.”

Cabinet for Health and Family Services spokesman Doug Hogan issued a statement saying that the state is optimistic that the federal government will re-approve the Medicaid changes: “It’s imperative that Kentucky HEALTH be re-approved in order to create better health, wellness, education and employment outcomes for our recipients and create sustainability for the Medicaid program.”

Jason Dunn, a policy analyst for KVH, said at the hearing, “The design of the program starts with an assumption that beneficiaries simply aren’t trying hard enough to extricate themselves from the grips of poverty. It then piles on layers and layers of red tape and penalties that are in no way designed to accomplish the primary goal of the program . . . to provide health care coverage for individuals and families in poverty.”

Dunn then offered a long list of suggestions to improve the regulations, largely asking for them to be more transparent about issues that would directly affect a consumer’s coverage, such as including co-payment and deductible amounts, and increased clarity around the “My Rewards” account, which allows consumers to earn “virtual dollars” to use towar dental and vision coverage, which are now part of the basic plan.

“Anything that relates to eligibility, any form that could impact your eligibility, should be incorporated into the regulations for reference,” Dunn said after the hearing. “It is bizarre to have that level of change with so few details offered in the regulations.”

Dunn also asked for removal of a new provision that would require a one-month break before a consumer can re-apply for benefits after discontinuance due to not meeting the work or “community engagement” requirements.

He also said the regulations should include a provision that requires consumers to be notified that half of their deductible can be rolled over to the following year if it isn’t used, since consumers must make a request to transfer these funds. “This action should take place automatically,” he said.

Dunn said after the meeting, “All these regulations are being filed to do things that are wildly outside what is permissible under federal law without the federal law being waived.”

Others also spoke against the regulation around the issues around non-emergency medical transportation, domestic violence and issues around durable medical equipment related to non-compliant consumers.

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