CMS Administrator Ignores Congressional Advisory Committee Recommendation

In 2009, Congress created the Medicaid and CHIP Payment and Access Commission (MACPAC) to advise it on coverage for low-income Americans through Medicaid and CHIP.  One of MACPAC’s statutory responsibilities is to “review and assess…Medicaid and CHIP eligibility policies, including a determination of the degree to which federal and state policies provide health care coverage to needy populations.”   

Last year, the eligibility policies under the Arkansas Section 1115 work reporting requirements waiver came to the commission’s attention.  After field research by commission staff and discussion at two public meetings, MACPAC sent a letter to the Secretary of Health and Human Services on November 8 urging him to hit the pause button.

Specifically, the commission urged the Secretary to “pause disenrollments under the waiver.”  This request was “based on our concerns about the number of beneficiaries losing coverage” (at that time, 8,462).  One purpose of the pause would be to allow CMS and the states to “finalize methods, measures, and data collection needed for robust monitoring and evaluation.”  Evaluations, the commission stressed, are required under the agency’s own regulations for section 1115 demonstrations to inform policy development.

Noting that Arkansas did not have an approved evaluation design in place at the time of implementation (June 1, 2018), the commission expressed concern as to whether the state and CMS “will be able to interpret early experience and evaluate progress toward evaluation goals.”

In the three months since the commission wrote its letter, nearly 10,000 additional beneficiaries were disenrolled, bringing the total to 18,164.  As my colleague Joan Alker observed, this represents a “staggering coverage loss ratio of 23 percent” for those subject to work reporting requirements, “considerably higher than the national estimates (6 to 17 percent) cited by the Kaiser Family Foundation. At the same time, less than 1 percent of those subject to work reporting are newly reporting work hours.

On February 6, fully aware of the 18,164 disenrollments, CMS Administrator Seema Verma finally responded to MACPAC: “CMS is committed to continuing to support states’ choices, with appropriate beneficiary safeguards, to implement demonstrations that include community engagement requirements.  CMS believes such opportunities put beneficiaries in control to live healthier and more independent lives….in light of our ongoing evaluation of Arkansas Works, we will not at this time be instructing the state to pause disenrollments.” 

Translation:  I’m not going to let an agency of Congress tell me what I can or can’t do.  Or, to paraphrase the immortal New York Daily News headline: “Drop Dead”.

This response comes from the same agency that was told by a federal court that its approval of the Kentucky work reporting requirements was “arbitrary and capricious.”  

Of course, when the court vacated the approval and remanded the matter to the agency, the Administrator had to comply with the court’s order.  After waiting for a few months, the agency reapproved the Kentucky waiver with almost no change.  

Given this track record, Administrator Verma’s response to MACPAC is not surprising.  But it does underscore just how unconcerned she is about the number of beneficiaries losing coverage, as well as how uninterested she is in knowing what is happening to them.  

She admits in her letter, “we are continuing to work with the state on its evaluation design.” That means that more than eight months after implementation, Arkansas still does not have an approved evaluation plan in place.  She gives no indication as to when approval might occur or when collection of data necessary to test the state’s hypotheses might begin.

Perhaps she does not want to deny beneficiaries the “opportunity” to be disenrolled from Medicaid so they can “live healthier and more independent lives” while the state takes its time developing an acceptable evaluation design that might produce information to inform a policy that she has already determined is right.

The Secretary’s approval of the Arkansas waiver, like that of the Kentucky waiver, has been challenged in federal court. A decision in one or both cases is expected in the next month or two.  Hopefully, the court will impose an actual “appropriate beneficiary safeguard”—i.e., invalidate both approvals.  But whatever the court rules, MACPAC needs to continue to focus on “the degree to which Federal and State policies provide health coverage to needy populations.” It’s abundantly clear that coverage is not the CMS Administrator’s concern.

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