My top-notch intern is checking the CMS website every day, and it looks like Friday June 9th, after regular business hours, federal CMS did two things with respect to Indiana’s desire to impose a work requirement on certain Medicaid beneficiaries and make other changes to their Healthy Indiana Plan (HIP) 2.0 program. First, CMS certified the application as complete, and second, they opened the federal public comment period on Indiana’s Medicaid waiver extension amendment.
The reason this is noteworthy is because the state is still in the middle of its own public comment period on these major changes yet CMS has already certified their application as complete. To state the obvious, it is hard to imagine the state is going to take these public comments very seriously if they have already submitted their request to CMS. That is too bad for folks in Indiana and elsewhere who are taking the time to write comments, but also as a general principal, I think CMS is violating the public process rules here.
A little background. The request to extend Indiana’s HIP 2.0 program was submitted back on February 15th. That submission included a few changes to the existing program including expanded access to substance use disorder services and some “healthy behavior” type changes. Public comments were taken in mid-February to mid-March, and many comments were received.
But the state did not at that time request a work requirement – obviously a major and controversial change. That request came in the form of an amendment, that was put up for state public comment on May 24th. Technically, this public comment period is still open and closes on June 23rd. But, on May 25th, just the day after releasing the amendment to the public, Indiana submitted the amendment to the CMS, and now it has been certified as a complete application.
Section 1115 waivers and extensions (like Indiana’s) are subject to clear public notice and comment procedures that are outlined in the Federal Code at 42 CFR Part 431 Subpart G. Federal regulations require that when a state submits an application to extend a demonstration waiver that the state must document its compliance with the public notice process set forth in Sect. 431.408 of subpart G.
Moreover, the rules require (at 431.412(c)(2)(vii)) that an extension application (like Indiana’s) includes “a report of the issues raised by the public during the comment period and how the State considered the comments when developing the demonstration extension application.”
Indiana’s amendment on the work requirement includes a section describing the public notice process (p. 10) which alludes to the public comment period and public hearings that have already been held. But nowhere do I see a report of the issues raised by the public during the public comment period – obviously, the state could not include a summary of comments since the deadline for comment submission has not yet occurred. There are weaker rules for amendments, but if that is CMS’ and/or the state’s excuse for certifying this application as complete, that is very troubling. If CMS has issued new rules or policy here, I have not seen them.
A work requirement is clearly a major change to Indiana’s current program, which the state seeks to extend, and as such should be subject to the full public notice and comment process as extensions are. If the process is not respected, states will have every incentive in the future to avoid public scrutiny of controversial changes by submitting bland applications and then doing the real business in amendments that are submitted later to avoid the public process.
