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KEJC Speaks Out Against Oklahoma's Bad Medicaid Proposal

Before states can drastically modify their Medicaid programs, they have to get permission from the federal Department of Health and Human Services (HHS). Last week, we submitted the comments below to the head of HHS, Alex Azar, asking him to deny Oklahoma's recent proposal to add work requirements and premium payments to its Medicaid program. Oklahoma's plan would also cut funding for non-emergency medical transportation, eliminate coverage for preventative screening for 19- and 20-year-olds, and deny retroactive coverage.

Why should Kentuckians care what Oklahoma does with their Medicaid program? We know that Medicaid programs in all states, including Kentucky, work better when they focus on providing medical services instead of cutting corners to save money. Plus, like we say in these comments, changing Medicaid to fit the state's budgets isn't just bad for Medicaid and the people who need it; it's illegal.

June 26, 2020

Secretary Alex M. Azar, II

United States Department of Health & Human Services

Washington, DC

via electronic submission

RE: Comment Opposing Sooner Care 2.0 Demonstration

Dear Secretary Azar,

Kentucky Equal Justice Center (KEJC) submits these comments in response to Oklahoma’s Sooner Care 2.0 Medicaid Section 1115 Demonstration Waiver. KEJC is a 501(c)(3) advocacy center dedicated to addressing issues that affect low-income Kentuckians. As the Health Law Fellow at KEJC, I’m usually focused in on Kentucky’s Medicaid program, but when we heard about Oklahoma’s proposed 1115 demonstration project, I couldn’t help but feel a sense of déjà vu about Kentucky’s own failed attempt to institute similar changes. We can’t and won’t stay silent about how these changes might affect Oklahomans. We’re also concerned about the long-term effects that approval of Oklahoma’s proposal could have on other states.

We’re glad that Oklahoma wants to expand coverage to low-income adults, but we’re concerned about the parts of Oklahoma’s Section 1115 proposal that condition expanded coverage on work requirements and premium payments. The Secretary can only approve Section 1115 projects that promote the objectives of the Medicaid Act,[1] and the Medicaid Act expressly states that its primary objective is to enable states to furnish medical assistance to individuals who are unable to meet the costs of necessary medical care and to furnish rehabilitation and other services to help these individuals attain or retain capability for independence or self-care.[2] The focus is on furnishing services, not eliminating them.

We know from similar Section 1115 proposals in our own state and in other states (take Arkansas for example) that work requirements and premiums inhibit access to coverage which in turn inhibit people who can’t afford medical assistance from accessing the services that they need and that Medicaid is designed to provide.

Oklahoma’s Section 1115 project contains a long list of proposals that will obviously impede, not promote, access to medical assistance, including:

· requiring payments for non-emergency use of the Emergency Department,

· denying retroactive coverage,

· eliminating non-emergency medical transportation,

· instituting a per-capita cap,

· terminating hospitals’ ability to enroll individuals in Medicaid, and

· discontinuing important screening, diagnostic, and treatment services (EPSDT) for 19- and 20-year olds.

These proposed changes are clearly aimed at saving the state of Oklahoma money, not providing medical care and services for more Oklahomans. Congress did not create the Section 1115 waiver option for states to cut corners and save money in their implementation of Medicaid. And Kentucky can also attest to the costs of defending Medicaid experiments that favor state savings over Medicaid beneficiaries.

Finally, the per-capita cap that Oklahoma has proposed would represent a drastic departure from traditional Medicaid financing. Again, the proposal is bent on shaping Medicaid to suit the state’s financial objectives instead of implementing Medicaid to fit the medical needs of Oklahomans. Further, the lack of detail on the per capita cap makes it impossible to provide thorough comments.

The Medicaid program is not (and should not be) a blank check for states with no accountability. Imagine going to a hospital where the hospital’s highest objective was saving the hospital money. (Maybe you have been to such a hospital.) No one wants to go to that hospital or take a relative or friend to that hospital (at least not any relative or friend you liked). Congress plainly did not intend for Medicaid to operate in a similar fashion.

As we successfully argued in our challenge to Kentucky’s recent 1115 waiver proposal, the purpose of Medicaid is not saving money; it’s spending money to make sure people get the medical care they need.[3] The D.C. Circuit Court recently affirmed that principal in Gresham v. Azar, finding that the Secretary disregarded the statutory purpose of Medicaid (i.e. providing medical assistance) when he approved Arkansas’ 1115 waiver proposal that was similarly fixated on cost savings over coverage.[4]

We at KEJC strongly and unequivocally oppose approval of Oklahoma’s Section 1115 Waiver Demonstration proposal. The Medicaid Act’s purpose is to pay for medical services for the neediest among us, and we want to ensure that the program stays that way for Oklahoma and every other state.

Thank you for this opportunity to comment,

Betsy Davis Stone

Health Law Fellow

[1] 42 U.S.C. § 1315(a). [2] 42 U.S.C. § 1396-1. [3] See e.g. Stewart v. Azar, 366 F. Supp. 3d 125 (D.C. D.C. 2019). [4] See Gresham v. Azar, 950 F.3d (D.C. Cir. 2020).


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