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Here are the ways Idaho’s Medicaid expansion bill might break the law

Here are the ways Idaho’s Medicaid expansion bill might break the law

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Little gives his first State of the State address

Gov. Brad Little delivers his State of the State address Jan. 7 at the Capitol in Boise.

BOISE — During a House Health and Welfare Committee hearing on Medicaid expansion earlier this month, Boise resident Dena Duncan listed a few of the controversial ideas the Idaho Legislature had put forward. Work requirements, patient copays and more.

“Are these things even legal?” she asked.

Idaho’s Medicaid expansion bill, with several sideboards such as work requirements, was signed by Gov. Brad Little on Tuesday. Lawyers told the Idaho Statesman that it might contain illegal provisions.

More than 60 percent of voters in November approved the law giving Medicaid to all low-income adults in Idaho. Instead of funding the expansion outright, or repealing it, Republicans in the Idaho Legislature spent much of the 2019 session finding ways to change it.

Various bills ping-ponged back and forth between the House and Senate, as lawmakers came up with new ideas on the fly. They gave conflicting statements on whether they meant to leave out a job-training program they had said was important. Nobody seemed to agree on how much the various proposals would cost the state.

When it comes to one major piece of the bill, the courts might have rendered that question moot. A federal judge last month issued a ruling against work requirements in two other states, Kentucky and Arkansas. The judge said the Trump administration didn’t adequately consider how those requirements would affect health care for the poor before approving them. Observers think that could have a chilling effect on similar proposals.

“The main thing to take away from the Arkansas and Kentucky decisions is that coverage matters,” said Catherine McKee, senior attorney at the National Health Law Program, which helped to bring the lawsuits over work requirements in those states.

‘Hacking and thrashing’ in the Legislature

Idaho would have to get federal approval for most of its bill’s provisions. That isn’t guaranteed, but the Trump administration has shown it is eager to sign off on big changes to state Medicaid programs.

“They’ve kind of tipped their hand, that they’re anxious to have people come in and seek waivers ... but I think, as a systemic matter, they haven’t gotten the procedures in place to ensure that they’re going to be evaluated in an even-handed manner,” said Jim Jones, an attorney with Parsons Behle & Latimer and a former chief justice of the Idaho Supreme Court.

To defend adding special rules to Medicaid, “You better have a case that you can make,” Jones said. “And I think we will probably run into the same difficulty. Here we are, hacking and thrashing in the Legislature ... ‘Let’s do this, let’s do that.’ And it doesn’t seem to be a fact-based procedure. And I think, when the dust settles ... there’s going to have to be a pretty good showing that it’s not going to impede people from having coverage, and it’s not going to keep people from getting service.”

Can expanded Medicaid be used as a jobs program?

The bill says Idahoans on expanded Medicaid have to spend a certain amount of time every month working, volunteering, studying or learning new job skills.

This mandate, dubbed a work requirement, is the most controversial part of the bill.

Its supporters say people shouldn’t rely on government assistance if they don’t need it. They also contend that the Medicaid work requirement is a path out of poverty, although lawmakers removed a job training program from the final version of the bill.

Opponents see it as another hurdle keeping poor Idahoans from getting medical care. Most Idahoans who qualify for expanded Medicaid already work or would be exempt from the bill’s work quotas; the bill just forces people to jump through bureaucratic hoops, they argue.

Anyone who doesn’t comply with the work requirement faces two possible penalties: losing Medicaid or having to pay for medical care.

The bill says its first choice is to kick people off Medicaid for at least two months. But if a court deems that illegal or the federal government doesn’t approve it, then noncompliant Idahoans will be charged a copay when they seek medical care.

The National Health Law Program argues that work requirements are just plain illegal. The court ruling against the work requirements in Arkansas was more nuanced than that, but it might have the same effect: halting the move toward work requirements in states like Idaho.

If the Idaho plan does get a green light from federal regulators, that leaves the question of whether it’s legal to kick people off Medicaid, or whether it’s legal to charge a copay.

The copay piece was presented as a more gentle penalty. But McKee said it’s still iffy. There are legal limits on how much Medicaid patients can be asked to pay — and some patients can’t be asked to pay anything, she said.

“That’s another potential hurdle there,” she said. “Just imposing heightened cost-sharing on this population itself may not be permissible.”

Jones concurred. “I think that the state would have to prove that it was not an impediment to delivery of health care to these qualified people,” he said.

Free to choose your doctor?

The bill would put Medicaid expansion into a more closely managed system, kind of like an HMO. Patients would have a “medical home,” such as a primary care clinic. Medical homes are increasingly popular, because they give patients one place to go for their health care, instead of drifting from doctor to doctor.

The Medicaid sideboards bill adds an extra layer, though:

If a woman wanted family planning services, such as a prescription for birth control pills, she’d have to go through that health care provider. She could see an outside gynecologist, but only with a referral — she couldn’t just pick a women’s health clinic and go there without her primary doctor’s approval.

“It is just bad and terrible policy to require someone to get a referral for family planning services,” McKee said.

Also, it might run afoul of federal law, she said.

Medicaid is the insurer for so many women of childbearing age that the federal government has special rules for family planning services and supplies. It requires state Medicaid programs to cover them, and it forbids states from making them hard to access.

The National Family Planning and Reproductive Health Association penned a memo on this topic a few years ago.

“The right to freely choose to receive family planning services from any qualified participating Medicaid provider is an essential protection designed to ensure that Medicaid beneficiaries have ready access to the health services they need when they need them, and from a provider they trust,” the association wrote. “Federal law guarantees that Medicaid beneficiaries can receive family planning services from any qualified Medicaid provider ... this principle is referred to as ‘freedom of choice.’”

According to a federal manual for state Medicaid programs, a Medicaid HMO program cannot require a referral for a patient to get family planning services or supplies outside the HMO. Instead, patients are allowed to choose “any qualified provider,” it says.

What’s more, if a woman failed to comply with the bill’s work requirements, she couldn’t be penalized with a copay.

“Medicaid enrollees may not be charged cost-sharing for family planning services and are given freedom of choice of provider when it comes to family planning,” the Kaiser Family Foundation wrote in a comprehensive 2017 report on how changes like those approved by the Idaho Legislature affect family planning.

Private insurance or Medicaid?

Another piece of the bill would put people on private health insurance, through the Your Health Idaho exchange, by default. If someone wanted Medicaid coverage instead, they could opt in. The carve-out would apply only to people with incomes between 100% and 138% of poverty level — $12,490 to $17,236 for a single person.

It’s a lighter version of Utah’s “bridge” expansion — a federally approved plan to expand Medicaid in Utah only up to the poverty line, leaving people who are slightly above poverty out of Medicaid but allowing them to get private insurance on Utah’s exchange.

Supporters said Idaho’s carve-out would save Idaho money, since those people would be getting insurance paid for by federal tax credits. It also would let people who currently have private insurance through the exchange to keep those plans.

Opponents pointed to the differences between private insurance and Medicaid, including the type of services covered and the difference in out-of-pocket costs.

As lawmakers debated this piece of the bill, they raised questions about how Idaho would implement this rule. Would a whole new insurance plan have to be crafted for the exchange? Would the federal government impose conditions, such as the funding cuts that came with Utah’s waiver?

With so many unanswered questions, and with the legislation still up in the air when the Statesman interviewed her Friday, McKee couldn’t opine on Idaho’s proposal. But she said her organization doesn’t support partial expansions.

“We certainly advocate for Medicaid expansion up to the full 138 [percent of federal poverty level income],” McKee said. “That’s what Congress designed. That’s what they decided makes sense for that population.”


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