Health Law and Policy Update
This week's updates
- New CBMS settlement requires meeting performance targets
- Judge stays ruling against Affordable Care Act
- Governor's budget proposes trimming Medicaid provider rate
- An easy-to-understand explanation of health reform
- Most experts favor ACA, survey finds
- New anti-reform bill introduced in legislature
- CCHI sponsoring 'Health Care Day of Action'
Headlines of the week
New CBMS settlement requires meeting performance targets
Colorado must show regular improvement in how it processes applications for public benefits programs such as Medicaid under a lawsuit settlement reached recently between the state government and plaintiffs and their attorneys, including the Colorado Center on Law and Policy.
The settlement arises from problems with the Colorado Benefits Management System (CBMS), a computer system that administers many of the state's public benefits programs. After CBMS launched in 2004, glitches in the system resulted in wrongful terminations, huge backlogs and other negative consequences for public benefits recipients. CCLP sued, and the case originally settled in 2007.
CCLP proceeded to monitor progress in the Department of Human Services (DHS) and the Department of Health Care Policy and Financing (HCPF) of timely processing of benefits applications. In 2010, CCLP again called the departments' attention to their continued failure to timely and accurately process applications and redeterminations. CCLP proceeded to mediation and settled with DHS. When it became evident CCLP would not reach a settlement with HCPF, CCLP filed a motion for enforcement and contempt in Denver District Court. The parties reached a settlement with HCPF before a court hearing took place.
Under the terms of the new settlement with HCPF, CCLP will continue to monitor client telephonic access to customer service, systemic computer problems with CBMS and problems with CBMS and its various interfaces. CCLP will also continue to monitor timely processing, and the department will be held to specific performance standards.
Beginning in June 2011, HCPF must show it is processing 75 percent of Medicaid and Child Health Plan Plus (CHP+) applications timely. Every six months after that, the department must show 5 percent improvement until it reaches 95 percent timely processing. HCPF is currently timely processing 64 percent of new applications. If the department can sustain 95 percent timely processing for 12 months, it will be deemed to have complied with the agreement.
With regard to redeterminations, the department must show it is timely processing 65 percent of redeterminations by Sept. 30. Currently, 51 percent of redeterminations are timely processed. Also, by the end of 2011, the department must implement administrative renewal of CHP+ and Medicaid recipients and remove the auto-termination feature from CBMS. The autotermination feature automatically terminates a client on a set date if the client's redetermination packet has not been processed, regardless of whether the client has turned in the packet.
By annualizing data from January 2011 and applying the settlement's performance targets, CCLP estimates that if HCPF meets its performance targets in 2011, at least 27,000 more new applicants and at least 39,000 more existing clients will have their applications and redeterminations processed timely than is the case at current processing levels. With the implementation of administrative renewal and elimination of autotermination, there should be virtually no untimely redeterminations after 2011, keeping more than 100,000 people annually entitled to medical care who would otherwise be unfairly cut off.
Judge stays ruling against Affordable Care Act
The federal judge in Florida who declared the Affordable Care Act unconstitutional in January has suspended his order, clarifying that states and federal agencies may proceed with implementation. Judge Roger Vinson said the suspension was conditioned on the Justice Department pursuing an expedited appeal.
"The sooner this issue is finally decided by the Supreme Court, the better off the entire nation will be," Vinson wrote, according to The New York Times.
The administration filed an appeal Tuesday.
Officials in many states, including Colorado, did not view Vinson's original order as an injunction against the Affordable Care Act, and their implementation efforts were not interrupted.
Governor's budget proposes trimming Medicaid provider rate
The budget-balancing plan for Fiscal Year 2011-12 that Gov. John Hickenlooper offered last month relies mainly on cuts to public schools. The governor offered smaller, yet still damaging, cuts to health care, according to an analysis by the Colorado Fiscal Policy Institute, a project of the Colorado Center on Law and Policy.
Hickenlooper's plan would cut $79.4 million from the Department of Health Care Policy and Financing during this year and next. The largest health care cut comes from Medicaid in 2011-12. The governor proposed cutting $28.8 million in 2011-12, of which $13.2 million would come from the General Fund. The most significant cut in Medicaid would be trimming provider rates by 0.5 percent to save $12.3 million, which includes reducing General Fund spending by $5.6 million. If that provider rate cut is approved by the legislature it would mean provider rates have been decreased 5.89 percent since the start of the recession.
After the governor submitted his proposed budget, members of the Joint Budget Committee have agreed to consider an even deeper reduction to provider rates, which would result in up to a 6.5 percent decrease since the start of the recession.
Rate reductions can discourage doctors and nurses from working with Medicaid patients because they get paid more to see patients with private insurance. Each provider rate reduction reduces access to quality health care for Medicaid patients.
What's new
An easy-to-understand explanation of health reform
A new website established by a coalition of health care and advocacy groups offers plain-language explanations of how the Affordable Care Act affects consumers. The site, at www.healthcareandyou.org, has details about how the law affects people older and younger than 65, and small-business owners. It was created by a group of organizations including AARP, the American Academy of Family Physicians and several others.
Advancing the debate
Most experts favor ACA, survey finds
The vast majority of health care experts nationwide favor the health reform policies established in the Affordable Care Act, according to a new survey commissioned by the Commonwealth Fund.
The survey included responses from 203 health care opinion leaders including people from academic and research institutions, health care delivery, business and insurance, and government and consumer advocacy. It was conducted online from Jan. 3 to Feb. 1 by Harris Interactive, a market research firm. Among the findings: "More than nine of 10 leaders in health care and health care policy believe the general direction set by the Affordable Care Act is appropriate, with nearly seven of 10 favoring implementing the law with little or no change."
What's next
New anti-reform bill introduced in legislature
A measure introduced in the Colorado General Assembly last week seeks to authorize the state to negotiate with other states to develop an interstate compact for the purpose of opting out of federal health reform and regulating health care at the state level. The bill is part of a new anti-Affordable Care Act strategy recently unleashed in a number of states. Colorado House Bill 11-1273 is sponsored by Rep. B.J. Nikkel, R-Loveland; Rep. Amy Stephens, R-Monument; and Sen. Mike Kopp, R-Littleton.
Colorado's compact bill would require the state to develop and negotiate for an interstate compact and develop model legislation that would advance policy goals to include: giving participating states the right to pass laws to regulate health care that supersede federal law and regulation; authorizing participating states to choose to receive federal Medicaid funds in the form of block grants and exempt themselves federal requirements as to the use of those funds; and authorizing states to opt out of federal health care reform.
Where does this idea come from? The Compact "movement" has its own website: www.healthcarecompact.org. Nick Dranias the director of the Center for Constitutional Government at the Goldwater Institute has authored a toolkit called "Ten Tactics for Citizens and States to Protect Individual Liberty by Restoring State Sovereignty" which describes ways to "Resist... federal overreach through interstate compacts that .... define and secure individual rights, carve-out entire regions from the reach of federal regulations, and redesign federal programs."
Will the idea get very far? Not likely. The Compact Clause of the U.S. Constitution says: "No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State" and is generally used for interstate agreements (or contracts) in areas where interstate cooperation, for example over transportation systems or environmental protection, is necessary. The Constitution does not permit states to enter into such agreements with other states without Congressional approval.
Anti-health reform advocates appear to believe they can use the Compact Clause as a vehicle for opting out of the ACA. However, as a story posted on the Health Reform Report website notes, "Adam Winkler, a law professor at the University of California at Los Angeles, said most scholars say any compact that affects federal laws would have to go through Congress, which would then have to send it to the president under the Constitution's presentment clause. 'This is primarily political theater more than anything else,' Mr. Winkler said. 'They need congressional consent, and it doesn't seem likely you can get a bill through the House and Senate and have it signed by President Obama that exempts states from what is President Obama's signature achievement.'"
Thus far compact bills have passed and are expected to be signed into law in Kentucky and Tennessee. Similar bills have been introduced in at least: Georgia, Texas, Arizona, Montana, Missouri, and now Colorado.
Colorado's compact effort will be heard in committee Thursday, March 17.
CCHI sponsoring 'Health Care Day of Action'
An event at the Colorado Capitol on March 23 will offer participants the chance to discuss health reform with policymakers, visit a health resource fair, celebrate the Affordable Care Act's first anniversary and hear from author Wendell Potter.
The 5th annual Health Care Day of Action is sponsored by the Colorado Consumer Health Initiative (CCHI). The event is set for 8 a.m. to 2 p.m. at the state Capitol. It's free to attend, and breakfast and lunch will be provided. Details are on an event flier. To RSVP, visit the CCHI website.
Health Law and Policy Update is issued weekly by the health staff of the Colorado Center on Law and Policy. Subscribe by e-mail or read previous editions.
Health Care Director
Elisabeth Arenales
Health Care Attorney
Adela Flores-Brennan
Special Counsel
Ed Kahn
Communications Director
Perry Swanson
Released March 11, 2011