To Comment or Not to Comment, There Should Be No Question

To Comment or Not to Comment, There Should Be No Question

Arbitrary and capricious. That is how U.S. District Court Judge James Boasberg characterized the Trump administration’s efforts through its approval of the Kentucky HEALTH Medicaid waiver, which includes numerous obstacles to access Medicaid, such as conditioning coverage on work, paying high premiums, and regular reporting (much of it online). Judge Boasberg vacated HHS’s approval of the waiver scheme, thus stopping Kentucky’s conservative led administration from implementing it.

It has been about three weeks since the Court ruled. You would think Medicaid enrollees in Kentucky would be able to access care, right. Unfortunately, not so easily done. Almost immediately after the judge ruled, Kentucky Gov. Matt Bevin’s administration issued an emergency rule that cut off Medicaid recipients’ dental, vision and non-emergency transportation services. Bevin claimed he had to do it because of Boasberg’s decision. We could think of a few words besides arbitrary and capricious to characterize Gov. Bevin’s reaction. Therefore, we responded and wrote a letter to HHS saying that the governor’s actions violated federal law. HHS told Kentucky health officials and the Bevin administration recently that they must provide these services, and Kentucky officials have agreed to reinstate them.

Comments-Graphic 1Unfortunately, we cannot rest on these wins. Both Trump’s HHS and Gov. Bevin remain undeterred and hell bent on restricting individuals’ access to Medicaid coverage — they aim particularly at non-disabled adults added to coverage after the Affordable Care Act (caretakers are swept up too). CMS Administrator Seema Verma said she still intends to condition Medicaid coverage on work requirements. HHS recently announced it would re-open the comment period for Kentucky’s embattled Medicaid waiver plan. It is seeking comments on the waiver project that state health officials originally proposed and that the court vacated — the project that Judge Boasberg criticized for cutting at least 100,000 Kentuckians off Medicaid.

National Health Law Program and its partners will continue its efforts to fight this waiver project. What can you do? Submit comments here by August 18 (click on “Answer the Questionnaire”). State your position that conditioning Medicaid coverage on the restrictive preconditions contained in the Kentucky HEALTH waiver application (e.g., work, high premiums and copayments, lockouts, loss of non-emergency medical transportation, and 3-months retroactive coverage) is illegal.

Here are our “top five” suggestions for submitting comments (and you can get more details about these in our “Fact Sheet: Building a Strong Administrative Record.”):

• Cite to data, evidence, and studies whenever possible;
• More citations are better, even if they are duplicative;
• Attach copies of studies and articles that are referenced;
• Aim for variation rather than duplicate or template comments; and
• Do not let perfect be the enemy of the good.

Comments do not need to be perfect. The important thing is to raise the full range of threats to the Medicaid program. If you do not have time to find a study or flawlessly construct an argument, it is still better to submit the comments and raise the issues to HHS than to submit nothing.

We cannot underestimate what is at stake. The current fight is about Kentucky Medicaid beneficiaries. Three other Republican-led states, however, have already received Trump approval for work requirements and other burdensome barriers. In addition, ten more states are waiting in the wings, itching to attach similar obstacles to their Medicaid programs.

National Health Law Program, Kentucky Equal Justice and the Southern Poverty Law Center will continue to fight to ensure that the Trump administration, Kentucky, and other states seeking to impose onerous burdens on access to Medicaid do not engage in illegal activities that undermine Medicaid coverage and fail to adhere to the purposes of the Medicaid Act. It is a fundamentally flawed idea that cutting tens of thousands of people from Medicaid can meet the law’s purpose of furnishing medical assistance. Trump’s HHS and Kentucky Gov. Matt Bevin have certainly acted in a way that was arbitrary and capricious. But they were also pretty heartless and cruel, and wed to an austere agenda of cutting low-income individuals and families from Medicaid and instead use tax dollars to support an array of private and powerful interests.

Comments are due August 18, 2018 at 11:00 p.m. EDT. Please submit your comments here.

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