By courier to: Room 443-G
Hubert H. Humphrey Building
200 Independence Avenue, S.W.
Washington, D.C.
Health Care Financing Administration
Department of Health and Human Services
Attention: HHS -20006-P
P.O. Box 8010
Baltimore, Maryland 21244-8010
Re:
Comment to the Proposed Rule, ?State Child Health; Implementing Regulations for the State Children?s Health Insurance Program,? 64 Fed. Reg. 60882 (Nov. 8, 1999).
Comment to the Proposed Rule, ?State Child Health; Implementing Regulations for the State Children?s Health Insurance Program,? 64 Fed. Reg. 60882 (Nov. 8, 1999).
To Whom It May Concern:
The National Health Law Program (NHeLP), a non-profit, civil rights organization that advocates for justice in health care for low-income people, submits these comments on behalf of itself and the organizations listed below in response to the Notice of Proposed Rulemaking,
?State Child Health; Implementing Regulations for the State Children?s Health Insurance Program,? published in the Federal Register on November 8, 1999.
We have summarized our primary concerns and comments, followed by a more detailed, section-by-section analysis. Specific comments and recommendations are followed by a rationale, except where the comment or recommendation is self-explanatory.
We thank you for the opportunity to comment on these proposed rules.
Sincerely,
Jane Perkins for the
National Health Law Program
Comments endorsed by:
Asian and Pacific Islander American Health Forum
Asian Pacific American Legal Center
Barnes-Jewish Hospital, Refugee Health Services, St. Louis, MO
Bazelon Center for Mental Health Law
California Center for Law and the Deaf
California Protection and Advocacy, Inc.
Center for Adolescent Health and the Law, Chapel Hill, NC
Center on Disability and Health, Washington, DC
Consumers for Affordable Heath Care, Augusta, ME
Early Childhood Direction Center, Syracuse, NY
Family Voices of Washington, Olympia, WA
Florida Legal Services
Legal Aid Society, New York, NY
Legislative Coalition of Virginia Nurses
Maryland Disability Law Center
Mexican American Legal Defense and Educational Fund
Michigan Council for Maternal and Child Health
Michigan Protection and Advocacy Service, Inc.
Mississippi Human Services Coalition
National Association of Protection and Advocacy Systems, Inc.
National Council of La Raza
National Organization for Rare Disorders
Northwest Health Law Advocates, Seattle WA
Ocean State Action, Cranston, RI
Oregon Center for Public Policy
Southern AIDS Commission, Inc., Jackson, MS
South Carolina Appleseed Legal Justice Center
Universal Health Care Action Network of Ohio
Virginia Poverty Law Center
Western Center on Law and Poverty
Individuals:
Shiva Bidar-Siealff, Madison WI
Comments to the Proposed Rule, ?State Child Health: Implementing Regulations for the State Children?s Health Insurance Program,? 64 Fed. Reg. 60882 (Nov. 8, 1999)
Submitted by the
National Health Law Program
January 7, 2000
I. Summary
Consumer Protections -We wholeheartedly support and applaud the Department?s decision to incorporate the provisions of the Health Care Consumer Bill of Rights into the proposed SCHIP regulations. The right to apply for assistance, to have applications processed in a timely manner, to be informed about benefits, participating providers and coverage decisions and to have access to a fair process to resolve disputes are basic consumer protections that are critical to ensuring that the SCHIP?s program?s promise of health care coverage is more than an illusion.
While we applaud the inclusion of these basic right?s protections, as we explain in greater detail in Section II below, we believe the Bill of Rights protections can and must be strengthened by adopting more consistent terminology, clarifying definitions, providing greater specificity and establishing clearer, more detailed standards. The need for clarity and specificity is greatest in the area of grievances and appeals.
Application and enrollment – HCFA has made clear that one of its highest priorities is to ensure that children who apply for SCHIP who are eligible for Medicaid are enrolled in Medicaid. Another priority is to simplify and streamline application procedures to facilitate the enrollment of eligible children into either SCHIP or Medicaid, whichever is appropriate. HCFA, however, is only requiring States to undertake a limited Medicaid eligibility screening process that will not identify all Medicaid eligible children who have filed SCHIP applications. We believe that these potentially Medicaid eligible children who are not identified through the proposed limited screening process are at high risk either to be enrolled in SCHIP or to fall through the cracks and not be enrolled either in SCHIP or Medicaid. We believe that States can and should devise better screening procedures to avoid both results.
Civil Rights Protections and Data Collection – Racial and ethnic minority children are at highest risk to be without health insurance. The SCHIP program can and must play a significant role to address this glaring disparity in our health care system. We have made numerous
recommendations throughout our comments designed to strengthen adherence to civil rights protections so that States act affirmatively to eradicate access barriers and improve minority participation in the SCHIP program. We also firmly believe that HCFA must require States to collect and report data on SCHIP enrollment by race, ethnicity and primary language spoken. We have appended to our comments a letter to Secretary Shalala, signed by over 118 organizations and individuals asking the Department explicitly to amend the SCHIP rules to mandate such data collection.
II. Section by Section Comments and Recommendations
Subpart A
Introduction; State Plans for Child Health Insurance Programs and Outreach Strategies
1. 42. C.F.R. § 457.10 – Definitions and use of terms
- Grievance – see comment at § 457.902.
2. 42. C.F.R. § 457.40 – State program administration
- We agree that HCFA must monitor the operation of approved State SCHIP plans and plan amendments to ensure compliance with the requirements of title XXI and title XIX.
- Section 457.40(a) should be amended to clarify that State SCHIP plans and plan amendments also must operate in accordance with federal civil rights laws including Title VI of the Civil Rights Act of 1964 and the Americans with Disabilities Act. HCFA also must monitor the operation of State SCHIP plans and plan amendments for compliance with these laws.
- While recognizing in the preamble that ongoing review of State programs is an evolving process, HCFA needs to identify either in this regulation or in a separate policy document ?the core set of key policy areas? that it intends to monitor and to establish a standardized protocol for doing so. One key policy area which ought to be integrated into the ongoing review of State SCHIP programs is how SCHIP is addressing the needs of racial and ethnic minority children, as well as children with disabilities. (See preamble at 64 Fed. Reg. 60887).
Rationale: Absent clarity regarding the review standards and protocols, HCFA will have difficulty monitoring and ensuring compliance. The Department?s initiative to eradicate racial and ethnic disparities in health care by 2010 dictates that this should be one of the core policy areas that is incorporated into a systematic review of SCHIP programs.
- Language should be included in the preamble that makes clear that HCFA views stakeholders (including families of SCHIP beneficiaries, child health advocates, community-based organizations, providers etc.) as having an important role to play throughout the review process.
Rationale: The preamble makes reference to the important role of the States, but is silent about the critical role that consumers, advocates, providers and others play both in the design, implementation and monitoring of SCHIP programs.
3. 42 C.F.R. § 457.50 – State plan
- We strongly urge HCFA to delete references in the preamble (see 64 Fed. Reg. 60888) that provide that ?[a]n approved State plan is comprised of the initial plan submission, responses to requests for additional information and subsequent approved State plan amendments.? An approved State plan should be a single document that is comprehensive, up-to-date, and easily accessible.
Rationale: In the preamble, HCFA States that an approved State plan consists of the initial submission, subsequent approved amendments and the correspondence between the State and HCFA. The correspondence may include the written responses to HCFA to
requests for additional information, both formal and informal, as well as ?any other written correspondence.? HCFA then provides rules for interpreting the various documents comprising the State plan. For example, the preamble States, ?information received from a State supercedes any contrary information that is included in the original plan or other earlier submissions. Moreover, if there are several submissions from the State that are inconsistent, the latest submission is the governing document.? If States are not expected to maintain a single, comprehensive and updated document, it will be virtually impossible for any one (including HCFA, State authorities and those outside of government) to understand the operational and programmatic features of a State?s current SCHIP program without reviewing every piece of correspondence between the State and HCFA.
- HCFA must also make clear that the approved State plan including any amendments is a public document.
Rationale: HCFA has done a good job of posting State plans on its website when they are available electronically. When they are not so available, advocates (and other stakeholders) often have difficulty obtaining copies. If State plans consist of multiple documents and many pieces of correspondence, States may be more reluctant to provide copies.
4. 42. C.F.R. § 457.60 – Amendments
- Eliminate language in the preamble that in practice, States need only submit written plan amendments if changes are ?substantial and noticeable.?
- Make clear that any change that eliminates, restricts, or otherwise modifies eligibility, even if the change impacts only a small number of beneficiaries, must be submitted as State plan amendments.
Rationale: Whether a change is ?substantial and noticeable? is a subjective determination. A change that affects the eligibility of 300 families across the State or 25 families in one community will be substantial and noticeable to the affected families, but likely to be inconsequential and unnoticed by the rest of the State or the community. Likewise, a change that only affects immigrant families is likely to be perceived as insubstantial and unnoticed by unaffected populations in most States. We submit that any change that eliminates or restricts eligibility must be submitted as an amendment to the State plan, regardless of how it may be characterized or who notices it.
5. 42 C.F.R. § 457.65 – Duration of State plans and plan amendments
- Clarify that in order for a State to certify that it has complied with the public notice requirement in § 457.65(b)(1), it must certify that it has complied with all applicable State legal requirements for notice and meaningful public comment.
Rationale: Under the statute, a State plan amendment that eliminates or restricts eligibility or benefits may not take effect unless the State certifies that ?it has provided prior public notice of the change, in a form and manner provided under applicable State law.? Section 2106(b)(3)(B)(i). We read this to require that States must certify that they have complied with applicable State Administrative Procedure Act or similar requirements mandating public notice and comment with respect to the promulgation of rules or regulations of general applicability. Although State processes vary, there is generally a requirement that notice issue for a specified period of time, followed by a
period for meaningful public comment.
- Eliminate § 457.65(b)(2).
Rationale: Proposed § 457.65(b)(2) interjects ambiguity into the rule because it could be interpreted to allow State plan amendments that restrict or eliminate eligibility or benefits to become effective as long as the public notice was published before the requested date of the change, regardless of whether or not the State had provided meaningful opportunity for public comment or whether the applicable time frames had run.
- We support § 457.65(c), clarifying that amendments that implement cost-sharing charges, increase existing cost sharing charges, or increase the cumulative cost sharing maximum are amendments that restrict or eliminate benefits.
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