The Department for Medicaid Services recently responded to comments and testimony offered in response to its Kentucky HEALTH regulations–Title 895 of Kentucky Administrative Regulations–and their first legislative hearing is scheduled in the November 13 Administrative Regulation Review Subcommittee meeting. As expected, the Department made very few changes to these regulations in its Statement of Consideration regarding comments from groups like Protection and Advocacy, the Kentucky Hospital Association, the National MS Society, the Kentucky Coalition Against Domestic Violence, the Homeless and Housing Coalition of Kentucky, durable medical equipment providers, and Kentucky Voices for Health. There were many comments requesting additional protections for those who are disabled but not yet deemed “medically frail”. There were also requests for more protections for beneficiaries who have outpatient procedures that require an extended period of recovery as well as requests for more transparency relating to Departmental guidance that will be used in the medically frail designation process. These comments did not lead to any changes. Additionally, some of Kentucky Voices for Health’s comments remain partially or completely unaddressed. But there are two responses that deserve a more in-depth breakdown to fully understand their implications for Kentuckians served by the program.
First, let’s explore the Department’s reasoning for not including actual premium dollar amounts in the 895 KAR 1:015. The language states simply that they can charge up to 4% of income. By way of review, the Department will be charging, at first implementation, premiums of $1, $4, $8, and $15 based on income. That $15 tier grows to $37.50 depending on a beneficiary’s length of time on the program. These premiums aren’t close to the 4% cap at this time, leaving the Department space to increase the premiums whenever it deems fit.
It appears the Department took a very literal interpretation of our comments requesting the actual dollar amount of the premiums be enumerated in the regulation, when all we were asking was that the above-mentioned actual dollar amounts be included. Here’s the comment from our testimony:
Section 2, Subsection (1)(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] process DMS must undertake before increasing premiums. The regulation promulgation process should be followed for any premium changes.
The Department’s reason for omitting premium amounts is described in their response:
In order to include the exact premium amount in a table within this administrative regulation, each salary between 0-138% of the Federal Poverty Limit would need to be included, up to and including the family of 10 amount of $51,020. At a 12 point font and 23 lines per page requirement, the exact premium amount would add at least 2,200 pages to the administrative regulation and could render the administrative regulation unreadable. Furthermore, the Federal Poverty Level changes each year, and would require that this administrative regulation be edited – in a confusing manner – each year.
The Department has already established in the administrative regulation that a beneficiary’s premium shall not exceed 4% of the household’s income. Any change to this number – which is below the federal cost-sharing limit of 5% – would also need to go through the administrative regulation promulgation process, and sufficiently binds the department as requested by these commenters. Furthermore, the 4% and 5% limit would not need to be amended annually when the Federal Poverty Level is revised upward or downward, which would assist with the ongoing operation of the Kentucky HEALTH program. The department will not be amending this administrative regulation in response to the comment.
To be clear, we were not requesting that this regulation should list all the possible dollar amounts that any beneficiary might ever pay. We were simply asking that the $1-$37.50 premium fees be specified in the regulation. Why? Two reasons. For starters, it’s required by state law. KRS Chapter 13A.100(3) requires fees to be set in regulation. Although the 4% limitation might be somewhere in federal statute, an “up to” percentage of income is not a fee. Secondly, this requirement is for the protection of the individuals or entities subject to a fee. It requires the regulating body to go through a transparent, public process before raising the fees. Going through the regulation promulgation process isn’t an attempt to “sufficiently bind the department”; it’s to provide an opportunity for the public to know why the premiums are being raised and to do so in the light of day.
How can this be done in fewer than 2,200 pages? Two simple charts can cover all the necessary information beneficiaries need to know about the premium they need to pay. How do we know this? Because the Kentucky HEALTH team has been kind enough to produce these charts already (in large, easy to read font, no less):
Another option would be to adopt a similar format already used in 907 KAR 1:604, which sets premiums for Medicaid Works Individuals:
Section 4. Premiums for Medicaid Works Individuals. (1)(a) A Medicaid Works individual shall pay a monthly premium that is:
Based on income used to determine eligibility for the program; andEstablished in subsection (2) of this section.
(b) The monthly premium shall be:
Thirty-five (35) dollars for an individual whose income is greater than 100 percent but no more than 150 percent of the FPL;Forty-five (45) dollars for an individual whose income is greater than 150 percent but no more than 200 percent of the FPL; andFifty-five (55) dollars for an individual whose income is greater than 200 percent but no more than 250 percent of the FPL.
Since we have two examples of how this information can be concisely and accurately included in regulation, it appears the only other reason for its exclusion is to avoid going through the regulatory process to increase premiums in the future. What does this mean? Medicaid premiums under Kentucky HEALTH can be raised at any point without a clear picture of the triggers that would justify the increase. The state need only provide a notice 60 days prior to the change.
Required Internet Access
A second area to highlight is in the PATH (“community engagement”) regulation. This draft regulation – 895 KAR 1:020 – requires all beneficiaries to use the “Citizen Connect” online portal to report hours of participation, upload supporting documentation, and/or request a good cause exemption. There are no other ways to do this. Although stakeholders had been informed there would be other modalities for this reporting, no alternatives are included into the regulation. It’s now clear they won’t be available at all. When several commenters mentioned this, this was the Department’s reply:
The department believes that when properly implemented, healthcare should incorporate a more broad-based approach that promotes all around health and leads to an overall improved quality of life. Kentucky HEALTH will, as a primary goal, provide beneficiaries with skills to transition them successfully to commercial health insurance, and encourage them to be involved in improving their health. Internet use is a vital part of modern healthcare access and modern life, and the department believes that beneficiaries need to develop these skills in order to achieve Kentucky HEALTH program objectives of empowering beneficiaries to be more active and informed about their healthcare and available resources. Furthermore, the department has ensured that Internet access is available for the Kentucky HEALTH population in each county via the Workforce Development office or the public library to log in, report and become more active and informed by the resources within Kentucky HEALTH to improve their health, healthcare access, and additional resources and tools within their communities. The department will not be amending this administrative regulation in response to the comment.
That’s a mouthful. There are no less than three assumptions to unpack from this response. The first is that internet access and skills are necessary to navigate commercial insurance. While it might be helpful at times, it’s far from a requirement. The second is that internet access is sufficiently universal across the broad spectrum covering the Medicaid population. The digital divide is very real in Kentucky, especially in rural areas with limited coverage. Having “hot spots” available is good, but we also know that without transportation supports, many simply won’t be able to get there. One would think the lessons from Arkansas’ recent experience would serve as a cautionary tale for what happens when internet-based portals are the only modality for reporting. With almost 9,000 beneficiaries disenrolled after failing to report, it’s hard to believe that’s a path Kentucky wants to emulate.
The third assumption is that beneficiaries need external motivation to compel them to improve their own health or their own lives. This is misguided and paternalistic. Instead, beneficiaries need reliable, uninterrupted, comprehensive access to quality health care in order to get healthy, stay healthy, and be productive. What this means: many will find themselves shut out of the program because they are unable to complete reporting requirements online.
Did we expect a lot to change based on the comments that were submitted? No, we’re aware that the Kentucky HEALTH has been designed to shift more responsibility onto the beneficiary. Nevertheless, it is concerning that premiums and reporting requirements – the two most likely avenues to being locked out of coverage – get short shrift in the regulations that determine how these critical components of Kentucky HEALTH will operate.
IF YOU GO
The Administrative Regulation Review Subcommittee meets in room 149 of the Capitol Annex in Frankfort at 1:00 on Tuesday, November 13, 2018. The agenda can be seen here.