Comments on Proposed Title 895 Kentucky Administrative Regulations

Kentucky Voices for Health (KVH) appreciates the opportunity to comment on the proposed Title 895 Kentucky Administrative Regulations that would implement Kentucky Medicaid’s 1115 waiver, called Kentucky HEALTH. As the leader of a coalition of concerned Kentuckians and organizations from across the Commonwealth, we once again offer our strong, evidence-based opposition to the overall concept of this waiver and its individual requirements. This waiver will result in loss of coverage, loss of or gaps in access to health care, and worse health outcomes for, at minimum, around 100,000 low-income Kentuckians.

Our specific policy concerns and supporting evidence have been documented in previous federal and state comment periods, and those past comments are attached and incorporated as part of these comments. In addition, KVH offers specific comments relating to various provisions of the Title 895 regulations.

Chapter 1:010, Eligibility

Section 4 subsection (3) paragraph (b) states that if a beneficiary doesn’t follow through with recertification requirements, they shall be granted an additional 90 days. Reenrollment is effective the first day of the month in which the recertification requirements were completed, “unless the individual was subject to a suspension during the recertification process.” Because this is written in the past tense, it is assumed there are no penalties or suspensions in place in this situation. If past tense was intentional, there should be additional instructions that apply to this situation. If it should have been written in the present tense, or “currently subject to a suspension”, it doesn’t appear this language would be necessary.

Section 7: This section goes into detail about what happens if the appeal is regarding the amount of the premium but does not address when an appeal is about whether a premium should be required in the first place, such as individuals claiming the need for and denied medically frail or temporarily vulnerable protections. In this situation, must payments be made regardless? If so, this will directly impact the eligibility of individuals appealing the denial or loss of those important protections, as appeal decisions may take many months to adjudicate.
There appears to be an error in numbering, as Sections 11-13 do not exist.

Chapter 1:015, Premium Payments Within the Kentucky HEALTH Program

In accordance with KRS 13A.100 (3), Section 2 subsection (1) paragraph (a) should contain the dollar amount the Department intends to charge its beneficiaries. Omitting these actual amounts makes it too easy for DMS to change the amounts on a whim, up to the maximum allowed by the CMS. KVH believes the amount should be specified in the regulation since it requires a payment from affected individuals. The regulation does not specify the conditions that must be met nor the process DMS must undertake before increasing premiums. The regulation promulgation process should be followed for any premium changes.

Subsections (2) and (3) identify the combined premium/copay maximum of 5% in a calendar quarter. If someone hits the maximum, their premium is reduced to $1, and they still have to pay it to avoid non-payment penalties. Also, the premium is only reduced “for the remainder of the calendar quarter”. First, it’s difficult to envision a system, from benefind all the way to the Managed Care Organization, being nimble and accurate enough to do this on a quarterly basis. Secondly, if the maximum is reached, there should be no additional premium requirement during the specified period. This will be confusing and will add another administrative burden on both the agency and beneficiaries that will lead to gaps in coverage.

Subsection (4), like subsection (1), should specify the dollar amount of any increased premiums, again in accordance with KRS 13A.100 (3).In accordance with KRS 13A.100 (1) and (3), Section 4, subsection (2) paragraph (a) subparagraph 3 and subsection (2) paragraph (b) subparagraph 2 should specify the dollar amount of deductions for premium non-payment penalties out of the MyRewards accounts. Because these account balances directly impact the ability of beneficiaries to receive dental and vision services, anything that impacts the dollar amount of this account should be included in regulation.

Subsection 2 paragraph (c) provides the good cause reasons for nonpayment of premiums as required by the CMS Special Terms and Conditions. However, it will be important to know what kind of verification will be required; this is especially important for survivors of domestic violence. Also, some of these will be long-term issues. The regulation is not clear regarding whether these situations must be re-verified monthly or if there can be a specified exemption period.

Chapter 1:020, PATH Requirement for the Kentucky Health Program

Section 2 subsection (3) contains an important requirement that must be emphasized here. It requires that beneficiaries report all hours, send all documentation, or make requests for good cause through the online portal created by the Cabinet. The word “SHALL” is used, and no other acceptable modality for completing these actions is specified. If it is the Department’s intention, as stated in various settings, to offer other modalities, they should be specified in the regulation. It is understandable for the Department to encourage use of the online portal for ease of program administration. But for many Kentuckians living below the poverty line or in rural, remote areas, internet access is often a luxury that is simply out of their reach. While there may be areas in a community where this access is available, transportation to those areas will also be a barrier because there are no provisions for this important support in the waiver. Arkansas had a similar requirement as they rolled out their work-related provision, and only about 2% of those required to report were able to successfully do so. Requiring a similar, singular modality in Kentucky will lead to that same outcome. KVH strongly encourages the regulation language be changed from prescriptive to permissive, and to specify other acceptable paths to complete this requirement.

Section 3 subsection (3) paragraph (b) subparagraph 1 appears to require a 1-month break before being able to even reapply after discontinuance due to not meeting PATH requirements. This is a new provision to many of us tracking the development of Kentucky HEALTH. It should be removed.

Section 4 Subsection (1) paragraph (e) states that an individual “diagnosed with a serious chronic medical condition, validated by a medical professional pursuant to department guidance and review…” is exempt from PATH requirements. This is a separate category from “medically frail”, although it sounds a lot like it. Because this provision can directly impact the ability of an individual to maintain eligibility in the program, the “department guidance” should be incorporated by reference into this regulation.

Chapter 1:030, Establishment and use of the MyRewards program

Section 3, Accruals Within a MyRewards Account, does not specify “dollar” amounts for the activities in which a user engages to accrue “dollars”. In accordance with KRS 13A.100, and because the balance in this account will impact an individual’s ability to access dental and vision services, the regulation should specify the amounts that can be earned for each type of activity. It is understood the Department may seek new individual activities, but each will fall into a general category for which the Department should establish a dollar value in the regulation.

Section 4 establishes the conditions under which MyReward “dollars” are deducted from an account. As in Section 3, and in accordance with KRS 13A.100, the balance of this account will impact an individual’s ability to access dental and vision services, so the regulation should specify the amounts that can be deducted for each condition.

Section 5, Payout of Account, should require the Department to notify a former beneficiary of the availability of the payout. Without notification, it appears the state is relying on most former beneficiaries to forget this payout is available—18 months after leaving the program. The Department should develop a notice for this purpose, and it should be incorporated by reference in this regulation.

Chapter 1:040, Deductible accounts within the Kentucky HEALTH program

Section 4 subsection (1) details that 50% of a deductible left over at the end of a benefit year can rollover into a MyRewards account. However, it appears it takes an action of the beneficiary to transfer these funds. It is curious as to why this would not be done automatically. It is also unknown if a beneficiary will be notified when eligible to claim these rewards “dollars”. This action should take place automatically. If the Department insists a beneficiary take this action, a notice should be developed for this purpose, and it should be incorporated by reference in this regulation.

Chapter 1:045, Accommodations, modifications, and appeals for beneficiaries participating in the Kentucky HEALTH program.

Section 1 subsection (2) paragraph (b) does not specify how the Department will determine an alternative number of hours an individual may participate. This should be detailed in the regulation or in a document incorporated by reference.

Chapter 1:055, Designation or determination of medically frail status or accommodation due to temporary vulnerability in the Kentucky HEALTH program.

In Section 1 subsection (3)—or in the proposed 895 KAR 1:001—“chronic homelessness”should be defined to avoid confusion with the HUD definition. At a minimum, this definition should include the thresholds that set it apart from the federal definition. The Department has confirmed on multiple occasions that chronic homelessness will be met after 3 months of homelessness rather than 12, and that a separate disabling condition will not be required. Those thresholds should be included here.

Section 2 discusses Medically Frail screenings. Because of the direct impact to an individual’s eligibility for services and plan type, the physician attestation form should be incorporated by reference in this regulation.

Although CMS has refused to recognize recent refugees and survivors of domestic and interpersonal violence as eligible for medically frail protections, the Department has vowed to treat these populations in the same manner. However, Section 3 appears to require a $1 monthly premium in order to access the MyRewards account these beneficiaries must use to access dental and vision services. This will create a barrier to care for individuals who are supposed to be protected. If the intention is to treat these individuals with the same protections as medically frail individuals, the regulation language should be nearly identical.

Thank you again for the opportunity to comment on these regulations. Kentucky Voices for Health believes these changes would provide some measure of protection for Kentucky’s low-income population if the Kentucky HEALTH waiver is ultimately approved and allowed to be implemented. We look forward to reviewing the Department’s Statement of Consideration.

Sincerely,

Emily Beauregard, MPH
Executive Director
Kentucky Voices for Health

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