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The Supreme Court Ruled One Way - Here's How You Fight BackThe US Supreme Court decided today that “closely held” corporations that object to contraceptives on religious grounds can deny this preventive coverage to female employees. There will be a great deal of constitutional banter on this opinion but, not being a constitutional scholar, I will make a few practical points.

First, when HHS wrote this popular regulation ensuring that women have access to preventive health care, the department looked to what most states require as a guide. North Carolina, along with a majority of states, mandate that health plans cover contraceptives. Our state has a reasonable exemption for religious employers, and HHS included a similar exemption in its regulations. I hasten to add that, despite this state law, few employers have argued that our state is impeding their religious freedoms.

Second, if you read the Supreme Court decision the majority opinion spends strikingly little time examining the possible impact on women. Instead, Justice Samuel Alito spends most of his space arguing that corporations are people and should enjoy the same religious rights and freedoms as individuals. In contrast, Justice Ruth Bader Ginsberg spends a great deal of time balancing the claims of the Hobby Lobby owners with the health care needs of female employees.

Third, this opinion opens the gate to whittle away many types of preventive health coverage mandates. Justice Alito says that each of these requirements will have to undergo its own analysis and that the current decision is narrowly tailored, but Hobby Lobby certainly invites a great deal of mischief. We will find out in the coming months and years just how deeply this court is willing to cut into protections for women and families.

Here are some initial links to analysis of the Hobby Lobby decision: ThinkProgress, the National Health Law Program, the American Academy of Pediatrics, and TalkingPointsMemo.

 

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In a good conversation with Becki Gray yesterday on News 14 we discussed the different visions for Medicaid reform proposed in the respective budgets of the Governor, House, and Senate. In particular, Gray, who works for the John Locke Foundation, noted that the state has a “rich” benefits package in Medicaid because we offer many optional services, that is, services that are not required to be covered by the federal government. The Senate, she correctly pointed out, wants to whittle away these optional services.

Ending optional services in Medicaid is a popular policy among conservative think tanks in the state. Apparently the Senate is listening.

As this debate progresses it is important that we know what services we are talking about when we talk about optional services. Let’s review a few: transplants, prescription drugs, dentures, hospice, prosthetics. None of these treatments are frivolous or lavish.

And that’s the trouble with optional services. If you want to get at some of the more expensive options then you are limiting life-saving care. Former Locke Foundation analyst Joe Colletti even praised Arizona for cutting optional services like transplants in a report on Medicaid reform. But these cuts inflicted so much pain in Arizona that the state made a volte-face on its decision.

That brings us to the Senate budget. Among other things the Senate wants to end the optional Medically Needy program in Medicaid. This program allows people who have enormous medical expenses, but earn too much to qualify for Medicaid, to apply these medical bills to their income to access Medicaid. This makes sense. If, for example, you earn $30,000 per year but need expensive drugs or nursing home care then these costs will quickly eat through your monthly income. Although you may have some money your medical needs erase it all. It’s not fair to tell this person that he or she is too wealthy for Medicaid when they effectively have nothing.

But this is exactly what the Senate aims to do.

As we have said many times before, “optional” refers to a regulatory requirement and does not mean anything about the necessity or quality of specific Medicaid services. You may call it foolish for the state to cover optional services. I call it basic human decency.

 

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The House budget includes a requirement that the position of Medicaid Director be subject to confirmation by the North Carolina General Assembly. Here’s some of the language:

4         APPOINTMENT AND CONFIRMATION OF MEDICAID DIRECTOR
5         SECTION 12H.36.(a) Effective July 1, 2014, and applying to Directors of the
6         Division of Medical Services appointed on or after that date, G.S. 108A-54 is amended by
7         adding a new subsection to read:
8         “§ 108A-54. Authorization of Medical Assistance Program; administration.
9         …
10       (e) The Medicaid Program shall be managed by the Director of the Division of Medical
11       Assistance (Medicaid Director), who shall be recommended by the Secretary of Health and
12       Human Services and appointed by the Governor, subject to confirmation by the General
13       Assembly by joint resolution. [...]

This provision should raise many questions and concerns. The legislature does not have appointment authority over any other position that is so central to carrying out the policy agenda of the Governor. If, for example, the legislature is bent on limiting access to Medicaid while the Governor wants to streamline enrollment, then the conflict will likely shut down any ability to get a Medicaid Director in place.

And while there is a clear process to appoint a Director if the Governor does not forward a nomination, the budget does not spell out what happens if the legislature refuses every nominee from the Governor. What would most likely occur is that the Governor would have to wait until the legislature is out of session and then appoint a temporary Medicaid Director.

If all of this sounds familiar it’s because this is how the process works in Washington, DC, where politics clouds every decision and ties up the basic functions of government. Instead of fostering bi-partisanship and stability, Congress has caused major disruptions in the running of Medicare and Medicaid by refusing to approve presidential nominees.

The same is likely to happen in Raleigh.

The Governor, who is elected statewide, should be able to appoint his or her preferred Medicaid Director to carry out the policies that he or she was elected to enact. If this confirmation requirement survives negotiations between the House and the Senate then leadership elected in select pockets of the state will have veto power over how the Governor runs one of the most important agencies of the executive branch.

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Since assuming office Gov. McCrory has throttled the theme that Medicaid is broken and must be reformed. He began by offering a radical proposal of dismantling our current system and selling it off to private insurance plans. He has since backed away from that idea and now wants a more modest expansion of what currently works in Medicaid.

The House, in a bipartisan bill filed this session, clearly agrees with the Governor’s new approach. The legislation, spearheaded by Rep. Nelson Dollar, would build Accountable Care Organizations (or ACOs)  in Medicaid. These provider led ACOs would move us toward greater integration of care and away from fee-for-service medicine. Medicare is using the ACO model as are many private insurers. In fact, Medicaid is one of the only payers in the state not moving to this method of organizing care.

In its budget, the Senate flatly rejects this approach. That chamber wants Medicaid to move to full capitation. In other words, legislators want to provide a set budget to Medicaid. The insinuation is that the Senate prefers the Governor’s original plan to pay private insurers to care (or not care, as the case may be) for our most vulnerable citizens.

The Senate also engages in some fantasy by pulling Medicaid into a freestanding department that will engage the nation’s best health care minds in this ambitious reform effort. At least that’s how Sen. Louis Pate described the proposed process. The trouble, of course, is that the nation’s best health care minds consider North Carolina’s Medicaid program to be an important model and they aren’t interested in helping to dismember it. The nation’s best health care minds also aren’t interested in coming to our state and spending time tearing apart care for low-income people as the legislature reduces services, limits eligibility, and slashes the budget. We are, in short, engaged in the opposite of innovation.

Rep. Dollar is a smart chap and likely realizes that his ACO bill isn’t going anywhere as a piece of legislation. That means he will need to stick the proposal into the House budget to give it a fighting chance. Hence, the showdown mentioned in the title of this post.

Certainly the House is moving in a better direction. But it’s a good time to reflect that Virginia is having its own budget battle over Medicaid right now. Except instead of fighting over how to fiddle with (or blow up) a program that is working, Virginia’s leaders are having a serious discussion about using federal funds to expand Medicaid coverage to 400,000 people. If that happens it means that our tax dollars will help boost Virginia’s economy, bolster its rural hospitals, and support its citizens.

That will certainly be charitable of us, but not wise.

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Last October Gov. McCrory caused a stir, and raised some eyebrows, when he said that the state may be forced to expand Medicaid due to a “new” regulation.

The policy to which he was referring is called presumptive eligibility. Presumptive eligibility allows states to give permission to hospitals and other providers to temporarily enroll certain people in Medicaid. North Carolina, for example, allows presumptive eligibility for pregnant women. That means if a hospital does an initial check and it looks like a pregnant woman is likely to qualify for Medicaid then the hospital can temporarily enroll her and get paid for the services it provides. Meanwhile, an application for full Medicaid can be processed without a disruption in care.

This policy is critical for ensuring that patients get care and providers get paid.

In states with efficient systems that can process Medicaid eligibility in real time, this temporary measure is not as important. In states where parents are having to ration medicine for their children due to a backlog in processing Medicaid applications, presumptive eligibility is a critical tool.

Health reform gave hospitals more latitude to presumptively enroll patients, even if the state has not granted the hospital permission to participate in the program. Other providers, notably Community Health Centers, however, are still not able to use presumptive eligibility to enroll children in Medicaid. The Community Health Centers are still limited to enrolling pregnant women.

Ultimately, the state needs to fix its computer system. In the meantime, we need to get care to children. We could start by granting Community Health Centers, and possibly other providers, the ability to temporarily enroll likely eligible kids in Medicaid while DHHS clears its application bottle neck.

And until the state expands Medicaid to all low-income people we will need every splint and bandage we can find to patch our broken system.