Desperate People do Desperate Things

 May 21, 2008

Fearful that a federal Judge was going to act on Friday to declare 2258 to be in violation of existing moratorium,  which would then require the Administration to give a 60 day comment period before the regulation could be effective, the Administration issued the following statement.  This announcement is to make it look like Administration is in control and at same time is give Republican Senators an excuse to vote against the domestic amendment (which includes the moratoria) on the Senate floor tomorrow. After all, "we have 60 days to negotiate.”

----------------------------------

May 21, 2008

To:  Republican Health Policy Staff

Fr: Andy Chasin

Re:  Voluntary Extension of Moratorium on IGT and GME Rules

The Administration today announced that they would voluntarily extend for 60 days the moratorium on Medicaid rules related to intergovernmental transfers (IGT) and graduate medical education (GME).  The Administration has previously indicated that it would consider staying its rules on intergovernmental transfers and graduate medical education funding while negotiating changes to these rules with lawmakers.  Those rules represent $885 million of the $1.65 billion at issue for the seven Medicaid rules.  Without further action the IGT and GME rules will now go into effect August 1st instead of May 25th.

Secretary Michael Leavitt released the following statement today:

"I reiterate the Administration's willingness to work with Congress and Governors to discuss their concerns before the rules go into effect", Secretary Leavitt said.  "We will voluntarily refrain from making these rules effective until August 1, 2008, more than 60 days after the moratorium expires.  I invite interested parties to sit down with me and my staff in the coming weeks to ensure that we meet our mutual commitments to protect health care for low-income individuals."

The two rules at issue are:

·         Graduate Medical Education - CMS 2279 - proposed rule published on May 23, 2007.  Cost:  $115 million for the moratorium. For permanent repeal, $800 million over 5 years, and $1.9 billion over 10 years.

·         Cost limit for Providers Operated by Units of Government and Provisions to Ensure the Integrity of Federal-State Financial Partnership - CMS 2259-FC- final rule with comment period, published on May 29, 2007.  Cost:  $770 million for the moratorium.  For a permanent repeal, $9.0 billion over five years and $22.0 billion over 10 years.

FINANCE BRINGS UNEMPLOYMENT INSURANCE, MEDICAID SAFEGUARDS
TO 2008 SENATE SUPPLEMENTAL FUNDING BILL

For Immediate Release Contact: Dan Virkstis
May 21, 2008 (202) 224-4515

Baucus urges passage of bipartisan provisions for America

as funding bill moves to Senate floor

Washington, DC – Senate Finance Committee Chairman Max Baucus (D-Mont.) today urged passage of key Finance provisions in the domestic spending portion of the 2008 supplemental funding bill, including measures that would extend unemployment insurance (UI) for America’s workers and that would safeguard Medicaid services for millions of low-income Americans. The Senate Finance Committee put forward similar UI provisions in late January as part of the economic stimulus package, and Baucus has been vocal in his opposition to stringent Medicaid regulations issued by the Department of Health and Human Services (HHS) to reduce federal funding to the Medicaid program.

“These provisions in the supplemental spending bill target some of today’s most urgent domestic issues by providing additional assistance to those Americans who have lost their jobs during this tough economic time, and by protecting Medicaid coverage for millions who face being shut out of our health care system,” said Baucus. “I urge my colleagues in the Senate to do what’s right for America’s working families, and move these provisions in our supplemental funding bill.”

The UI provision would make 13 weeks of additional UI benefits available to jobless Americans through the end of March 2009. Americans in high unemployment states – with total unemployment rates of six percent or higher – would have 13 additional weeks of eligibility for a total of 26 additional weeks. Individuals who have begun to receive either 13-week extension of benefits by the end of March would be eligible to receive benefits for the remainder of that 13 weeks.

One provision related to Medicaid would suspend until April 1, 2009, seven regulations issued by HHS to reduce federal funding to the Medicaid program by nearly $20 billion, cutting millions of vulnerable Americans out of the health care system. Specifically, the proposed rules would force cuts in school-based, rehabilitation, and case management services, and limit the ability of states to impose taxes on health care providers. They would also change the definition of public provider, the definition of outpatient services, the policy on intergovernmental transfers, and eliminate payment for graduate medical education. These rules would shift millions of dollars in health care costs to state and local governments at a time when they are already under tremendous financial pressure. The National Governors’ Association has asked Congress to block these proposed regulations.
 

Cost Estimate for Protecting the Medicaid Safety Net Act of 2008,

Congressional Budget Office:

April 25, 2008

The CBO cost estimate examines legislation (HR 5613) that would place a one-year moratorium on seven new Medicaid regulations for services supplied by public providers; graduate medical education, school-based administration and transportation services; and rehabilitation services. CBO estimates that the increases in spending under the bill would cost $1.8 billion between 2008 and 2013, and the decreases in spending under the bill would save $1.9 billion between 2008 and 2018, largely due to the required delays in implementing the regulations. According to CBO, the legislation would not affect federal revenues or discretionary spending (CBO cost estimate, 4/22).

The Governors Weigh In

April 24, 2008

Floor Statement of U.S. Senator Chuck Grassley of Iowa
Ranking Member of the Committee on Finance
Medicaid Moratoriums Bill Moving in the House
Wednesday, April 16, 2008
 

Today the House Energy & Commerce Committee is taking up consideration of HR5613. This bill seeks to place a moratorium on seven Medicaid regulations until the next Administration. I know some people have concerns with the CMS Medicaid regulations.

Let me be clear: I’m not here to argue the regulations are perfect. I have issues with some of them I’d like to see addressed. However, the regulations do address areas where there are real problems in Medicaid.

Mr. President, Medicaid is a federal-state partnership that provides a crucial health care safety net for some very vulnerable populations – low-income seniors, the disabled, pregnant women, and children. They depend on Medicaid, and it does generally serve them well.

Medicaid is also a program with a checkered history of financial challenges. That’s the gentle way of putting it. A more severe way of putting it would be that Medicaid has a history of states abusively pushing the limits of what should be allowed to maximize federal dollars sent to them.

I’m not going to devote time in my remarks today to issues of fraud and abuse in Medicaid. I’ll probably be back to do more on that later. Instead, I want to focus on a very simple concept: Medicaid program integrity depends on CMS and the states and providers and ultimately, beneficiaries having a clear understanding of the rules of the road. When states don’t have clear guidance, they could be inappropriately spending taxpayer dollars. Improper payments and wasteful spending only increase the financial pressure on the safety net.

Mr. President, the Medicaid regulations HR5613 attempts to halt are efforts by CMS to provide clearer rules of the road in critical areas where there have been well documented problems. During the recent debate on the budget resolution, I entered into the record a CRS memo that showed some of the issues that exist under current law. I’m not going to go into them in detail today, but when CMS doesn’t know how a state is billing for a service and states don’t have clear guidance for how they should bill, neither Medicaid beneficiaries nor the taxpayers are well served.

We should be talking about fixing the regulations so they better address real problems in Medicaid, but instead the House is trying to kick the can to next year.

So what does that mean for the taxpayer? HR5613 spends $1.7 billion to place moratoriums on the regulations. This is only to delay the regulations until the end of March of next year. I know supporters hope that the next administration will completely cancel the regulations. What would it cost if we tried to completely prevent these regulations from ever taking effect? Not $1.7 billion that’s for sure. It would actually cost the taxpayers almost $20 billion over the next five years and almost $50 billion over the next ten years.

It is an absolute farce for anyone to argue that all of those dollars are being appropriately spent and that Congress ought to just walk away from these issues. But that’s what HR5613 does. Now I know supporters of that bill will say they just need more time. They say they haven’t had enough time to study the regulations and respond.

That argument is starting to strain credibility. The public provider rule was proposed well over a year ago. The rehabilitation services rule was proposed nine months ago. Supporters of the bill have had plenty of time, if they wanted to make new policy. But it is obvious by their actions, their only real interest is making the regulations go away. This is unfortunate Mr. President, because finding solutions is what we should be doing. When we start talking about the integrity of the Medicaid program, clarity is what is most needed between CMS and the states. If you don’t like the rules, fine. But there are ten of billions of taxpayer dollars involved. Roll up your sleeves and get to work solving the problems the regulations try to solve.

Mr. President, that’s what we should be doing for the taxpayers. Putting moratoriums on all of the Medicaid regulations issues by CMS is not the right answer.

"Apres moi, le deluge”

Let us Hope Not

Dennis Smith will be leaving CMS tomorrow. Herb Kuhn will be appointed as the Acting Center Director.  Mr. Kuhn is currently the Deputy Administrator under Kerry Weems.  More on Mr. Kuhn.

An Editorial

April 10, 2008

“He who lives by the sword dies by the sword.”

Dennis Smith was a good soldier.  Time and time again he carried the Administration’s water on the spate of regulations affecting reductions in health care coverage for pregnant women, low-income children, nursing home residents and other groups.  

From time to time, good soldiers are asked to fall on their swords.  Smith, described by the Wall Street Journal as the “architect of the rules,” did so.

Over the course of the past two years or so, Mr. Smith increasingly lost credibility with both parties in Congress.  It was almost painful to watch him testify before the various committees, where he was often asked valid questions to which there were no reasonable answers.  Reports demanded by Congress and promised by Smith were almost always tardy or ignored, with excuses no better than a child’s “The dog ate my homework.”

Smith’s sword was sharpened by the Administration’s abject miscalculation of the furor the seven regulations (and the evisceration of the DAB) would have.  The battle is not over, by any means, but Smith has already had to pay the price.  We will see him again, perhaps on the staff of a Member of Congress already troubled by the moratoria.  Unfortunately for Dennis, his reputation as the Administration’s voice will travel with him.

This is neither the time nor the place for an ad hominem attack on Mr. Smith, but those who have worked with him in the past, including during his tenure as Director of the Department of Medical Assistance Services for the Commonwealth of Virginia, seem to believe that his personality and his mission too often merged. 

Dennis Smith was a good soldier.  Let us hope for his sake - and for our own - that he is not asked again to fall on his sword.

Interested in the Energy and Commerce Health Subcommittee

Hearing This Morning?

April 9, 2008

H.R. 5613, the “Protecting the Medicaid Safety Net Act of 2008”
Read the Committee Action Sheet
View the Archived Webcast or Download

Did You Miss the Energy and Commerce Health Subcommittee Hearing Last Week?

Connect to the Archived Video Webcast of this Hearing or Download

Be sure to listen to Mr. Dingell's opening remarks

The House Energy and Commerce Subcommittee on Health

Hearing on H.R. 5613

April 3, 2008

Full details will be posted here soon, including a link to the recorded video.  Here is the link to the written testimony of the witnesses.  Markup of the bill is next week, with a floor vote the next week. Stay tuned.

H.R. 5613 Cosponsor List as of April 3, 2008

Congressional Research Service Report on 2258

March 26, 2008

The Congressional Research Service March 25 released a report that outlines how a controversial Centers for Medicare & Medicaid Services final rule would affect states' use of intergovernmental transfers to fund their Medicaid costs.

The report, Medicaid Regulation of Governmental Providers, explains that intergovernmental transfers (IGTs) allow states to help fund their share of Medicaid costs through contributions from local governments or other governments entities. Some states have interpreted the term "public agency," which is included in the lists of entities eligible to contribute to state costs, to include providers that are not governmental but have a "public-oriented mission," such as not-for-profit hospitals, according to the report.

However, the rule would tighten the definition of a government entity, eliminating the term public agency and making some hospitals ineligible to contribute to state Medicaid costs.

CMS contends that the rule is necessary because arrangements in which hospitals participate in IGTs are "often repaid through Medicaid disproportionate share hospital payments or through inflated Medicaid payment rates for which federal matching amounts are claimed," according to the report.

In addition, states can make Medicaid payments to hospitals or another provider which are then transferred back to the state through an IGT. The net effect, according to the report is to "effectively raise the federal matching rate in the state to levels beyond those specified in law."

The rule also would limit payments to governmentally operated providers to amounts that do not exceed costs, although the limit would not apply to Indian Health Services facilities, tribal facilities, or disproportionate share hospital payments, according to the report. Another provision of the rule would require government entities to document that they are making a certified public expenditure when they contribute to state Medicaid costs.

The May 2007 rule (72 Fed. Reg. 29748) has drawn criticism from Congress, states, provider groups and advocacy organizations who say its reduction in payments to the states would be detrimental to Medicaid beneficiaries.

Congress enacted a moratorium prohibiting implementation of the rule until May 25, 2008, and pending legislation would extend it further. In addition, a coalition of provider groups, which together represent most of the nation's hospitals, have filed a lawsuit seeking a preliminary injunction prohibiting implementation of the rule ((No. 48 HCDR 3/12/08) ..

See link to new CRS report on IGTs and the Medicaid Public Provider Cost Limit Rule.

BNA
Volume 13 Number 59
Thursday, March 27, 2008
ISSN 1091-4021
 

Good News from The Hill

March 25, 2008

Senator Jay Rockefeller (D-WV), Chair of the Senate Finance Health Subcommittee, is about to introduce legislation that would delay implementation of the seven offensive CMS Regulations until April 2009. His bill will look like Representative Dingell’s H.R. 5613, the Protecting the Medicaid Safety Net Act , but may also address an August 17 directive from CMS that attempts to limit eligibility and expansion of SCHIP.  That directive requires states to confirm that the state children’s health insurance program (SCHIP) is serving 95 percent of eligible Medicaid beneficiaries in families earning less than 200 percent of the federal poverty level (FPL) before allowing coverage expansions to families earning more than that. 

Legislation imposing moratoria on CMS regulations has faced problems with cost (CMS claims significant cost savings in the first year for most of its proposed regs) but both the House and Senate budget resolutions include budget-neutral reserve funds for moratorium legislation.

Both House and Senate bills would put off for one year the recent CMS regulations affecting intergovernmental transfers; coverage of rehabilitation services for people with disabilities; outreach and enrollment in schools; specialized medical transportation to schools for children covered by Medicaid; graduate medical education payments; outpatient hospital services; targeted case management services; state provider tax limits, and appeals filed through the HHS Departmental Appeals Board.

As Mr. Dingell pointed out in a press statement accompanying introduction of his bill, “If the Administration’s proposed cuts move forward, those most in need will pay the highest price. The restrictions the Administration is imposing on Medicaid are harmful and will undoubtedly put the health of thousands of our most vulnerable children at unnecessary, indefensible risk.”

Two recent reports indicate that, if implemented, the rules would have a disastrous effect on states’ economies and their ability to provide services to the most vulnerable beneficiaries.

House Oversight Committee Chairman Henry Waxman conducted a survey of State Medicaid officials who estimated state losses could top $50 billion over five years in reduced federal payments due to the regulations.  This is nearly three times CMS’ original estimate.   

A recent report commissioned by First Focus, a children’s advocacy group, and produced by Professor and attorney Sara Rosenbaum of George Washington University’s School of Public Health, found that the rules would especially harm low-income children with special needs and may violate a Medicaid provision requiring access to the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program.

Bruce Lesley, President of First Focus, points out that as states battle to counteract the current economic downturn, the CMS regulations shift of Medicaid costs to the states could saddle children most in need of health care with the burden of paying for it themselves or going without treatment.  The regs would also cut billions of dollars from the budgets of public schools, which would then be faced with the decisions to reduce funding for education and health services or raise state and local taxes to pay for the reduction in federal support.

Senator Charles Grassley (R-IA), meanwhile, warns that while the Medicaid regs may be imperfect, ignoring the problems they are intended to solve would be bad public policy.   Senator Grassley would like Senate Finance to review all the rules and replace them with “sound policy.”

Opposition to the CMS regs has come from a variety of sources, including some that may not have been foreseen by the Administration.  For example, former Republican National Committee Chairman and current Mississippi Governor Haley Barbour testified at the February 26th Waxman hearings that the regulations banning intergovernmental transfers and graduate medical education payments under Medicaid would devastate a number of providers in Mississippi and cost the state upwards of one hundred million dollars.

Stay tuned.  It’s just beginning to get interesting.

Hospitals File Lawsuit Over Medicaid

Groups representing most of the nation's hospitals announced Tuesday they were suing federal health officials to block the enactment of regulations that some hospitals claim threaten their survival.  The regulations would restrict federal Medicaid payments so they don't exceed the cost of providing care. But hospital officials said the rules would make it harder to offset the expense of treating the uninsured.  Find the full story here.

Participants in the lawsuit include the American Medical Association, the National Association of Public Hospitals and Health Systems, and the Association of American Medical Colleges.

Federal action "sneaky, mean, shortsighted"

[yes, I know I originally posted this back in February, but it is fun to read again, isn't it?]

February 13, 2008

Hey, I didn't say that.  The Bakersfield Californian did.  Read the whole column here.

You Had Your Chance, CMS

March 5, 2008

In response to a series of reports presented Monday by Representative Henry A. Waxman, Chairman of the Oversight and Government Reform Committee, showing the terrible fiscal impact of the CMS regulatory cuts, CMS spokesman Jeff Nelligan said that the committee's report is "not credible."  According to Mr. Nelligan, "The committee paper fails to provide any reliable information such as the assumptions, expenditure reports, the knowledge of how states will respond, and budget forecasts necessary to substantiate any of the numbers contained in the paper."

Mr. Waxman asked for this information weeks ago and CMS would not or could not make it available to him.  He then went directly to the states and got responses from more than forty of them.  Is CMS suggesting that the states were all lying or inept?

(The complete reports from Mr. Waxman's Committee can be found below)

It Had To Happen - TCM Rule Goes To Court

NEWS RELEASE

February 29, 2008


Today, Maine Attorney General Steve Rowe announced the filing of a lawsuit against the United States Department of Health and Human Services (US DHHS) and Michael Leavitt in his capacity as Secretary of US DHHS. The Complaint, filed in the United States District Court for the District of Columbia, challenges a certain agency rule that would adversely impact many of Maine's Medicaid recipients and cost the State's general fund more than 16 million dollars in fiscal years 2008 and 2009.  Maine joins with Maryland, New Jersey, and Oklahoma in this litigation. The states allege that portions of the revised rules violate the 2005 Deficit Reduction Act and parts of the Social Security Act.

The US DHHS promulgated an Interim Medicaid Program Final Rule on December 4, 2007 relating to Medicaid case management and targeted case management.

In the complaint, Maine and three other states allege that portions of the Interim Final Rule promulgated by the US DHHS are arbitrary, capricious, an abuse of discretion and not in accordance with the 2005 Deficit Reduction Act or any of the provisions of Title XIX of the Social Security Act. The complaint also alleges that the US DHHS violated the rule making requirements of the federal Administrative Procedure Act (APA) and that the Interim Final Rule does not provide a reasonable transition period for Maine to modify its case management programs.

Rowe said that many of the provisions in the Interim Final Rule will jeopardize the health and safety of Medicaid beneficiaries, limit the state's flexibility to provide case management in the most effective and efficient manner and result in a substantial reduction in federal funds for Medicaid case management services.

"This federal rule will abruptly cut off funding that helps protect the health and safety of our state's most vulnerable citizens. The rule is not only unfair to States and Medicaid beneficiaries, it is also illegal. We are confident that the federal court will find that the Secretary of Health and Human Services exceeded the authority given to him by Congress." Rowe said. "States derive no pleasure from suing the federal government. However, in this case, we must do so to protect the health and safety of our citizens."

Joining Maine in this lawsuit are Maryland, New Jersey and Oklahoma.

This suit seeks injunctive relief, which is a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction. Such an act is the use of judicial (court) authority to handle a problem, and is not a judgment for money. Whether the relief will be granted is usually argued by both sides in a hearing rather than in a full-scale trial, and the overall process is much quicker that a trial.  There are normally three stages in this form of injunctive relief; first, a temporary restraining order, which is intended to prevent immediate harm; second, a preliminary injunction, which could be granted after arguments are heard by the Court; and finally, a permanent injunction, which is just what it sounds like.

If You Were Waiting for Mr. Waxman's Next Step . . .

March 3, 2008

Today Representative Henry A. Waxman, Chairman of the Oversight and Government Reform Committee of the House released a new report: The Administration’s Medicaid Regulations: State-by-State Impacts.

Click here for an interactive map showing how the proposed regulations would impact each state.

The report details the state-by-state impacts of seven regulations issued by the Centers for Medicare & Medicaid Service (CMS) that would make major, wide-ranging changes in Medicaid, the nation’s largest low-income health care program.

“As the economy tips into recession, the last thing we should be doing is taking federal funds from states, especially funds that are supposed to help people with their health and medical expenses,” said Chairman Waxman. “The Bush Administration has proposed drastic changes in the Medicaid program, without even attempting to understand the financial impact on states, localities, and the people they serve. The Governors have opposed these proposals on a bipartisan basis. With this report, we can really see why. I hope that the Administration will reconsider these misguided regulations.”

Although Medicaid is the largest health care program operated by the states, the Administration has failed to provide any estimates of the state-specific impacts of its regulations. After several unsuccessful attempts by the Committee to obtain these important state estimates from CMS, the Committee requested an analysis from Medicaid State Directors on the impact of the CMS regulations on their state.

The report finds that the state estimates of the fiscal impact of the CMS regulations are significantly higher than the $15 billion impact projected by the Administration for next five years. States estimated that the regulations would reduce federal payments to them by nearly $50 billion over the next five years, more than three times the Administration’s estimate.

The large discrepancy between the state estimates and the CMS estimates is evidence that the regulations are likely to have a much larger fiscal and programmatic impact on state Medicaid programs and state budgets than people realize.

The report also finds:

• The combined effect of the reductions in federal funds from all seven regulations represents a major fiscal blow for many states;
• The regulations will reduce federal spending by shifting costs, not through greater efficiencies;
• The regulations will disrupt existing systems of care for fragile populations; and
• The regulations threaten the financial stability of the hospitals, emergency rooms, and clinics that treat Americans without health insurance.

Documents and Links

•  Press Release (102 KB)
•  Feature: The Administration's Medicaid Regulations: State-By-State Impacts
•  Report: The Administration's Medicaid Regulations: State-By-State Impacts (305 KB)
•  Summaries of State Responses (179 KB)

Progress in Saving School Services Reimbursement:

Medicaid Moratorium Could Be Extended

March 3, 2008

The Senate Budget Committee has set aside enough money to keep the school-based Medicaid reimbursement program in operation well into 2009.  For the funds to become available, however, the authorizing committees which oversee the Health & Human Services Department must approve a change in the law.

Members of Congress with control over HHS are well aware of and sympathetic to concerns on the Medicaid reimbursement program’s proposed termination by the Centers for Medicare & Medicaid Services in HHS.  As a result, expect a bill to be introduced in each chamber next week to extend -- into March of 2009 -- the current moratorium, which expires June 30.  There has been pressure from Members of the Senate and a number of Governors to continue this moratorium, as well as others affecting a variety of Medicaid programs.

In preparation for the bills, the House Oversight and Government Reform Committee will be releasing a report on  Monday, March 3, on the impact that reimbursement termination would have on each of 41 states surveyed.

Who Do They Think They are Kidding?

February 25, 2008

In its attempts to explain the effective date for 2287 (administrative and transportation services reimbursement), something it has yet to accomplish with any clarity, CMS has repeatedly claimed that it is trying to “avoid disruption to the 08/09 school year.”  At best, the agency is being disingenuous.  The disruption has already occurred, as LEAs attempt to cope with the budget cuts 2287 will cause.  As one example, most states require school districts to notify teachers no later than March 15th if they will not be reemployed in the fall.  Pink slips will be falling like autumn leaves.  No, wait.  A better metaphor would be that they will descend like a late and especially bitter snowstorm. 

Current Status of the CMS Regulations

February 25, 2008

With sincere thanks to Judy Chesser, New York City Health and Hospitals Corporation.  This document says it won't print within the margins, but it does.

Critics Say New Medicaid Rules Will Hurt States During Economic Downturn

Feb 20, 2008

Critics of Medicaid regulations [TCM] that will begin to take effect on March 3 contend that implementing the rules during an economic downturn "will only worsen the fiscal situation for already strapped state budgets," CQ HealthBeat reports. Speaking at a forum sponsored by the Alliance for Health Reform and the Kaiser Family Foundation's Commission on Medicaid and the Uninsured, Barbara Edwards of the National Association of State Medicaid Directors said that as the economy weakens, more workers are becoming unemployed and some are enrolling in Medicaid because they have no alternatives for coverage. At the same time, state revenues are declining, and states are faced with more demands for Medicaid services and fewer resources, Edwards said, adding that the timing "almost couldn't be worse for states for many reasons."

However, Dennis Smith, director of CMS' Center for Medicaid and State Operations, at the forum said that timing is not the only consideration. "In good times people say, 'Don't rock the boat.' In tougher times they say, 'Oh no, not now,'" adding, "We think that these are good regulations that help preserve the integrity of the program" (Johnson, CQ HealthBeat, 2/19).

[Excerpted from the Kaiser Family Foundation Report of this date]

American Public Human Services Association Analysis of TCM Regulation

February 21, 2008

The American Public Human Services Association and its affiliates, the National Association of State Medicaid Directors and the National Association of Public Child Welfare Administrators has assembled an excellent side-by-side comparison of the Deficit Reduction Act provisions covering TCM and the CMS proposed CMS regulation on the same issue.  You can find it here, along with their cover letter.

Federal action sneaky, mean, shortsighted

February 13, 2008

Hey, I didn't say that.  The Bakersfield Californian did.  Read the whole column here.

It isn't June 30th, it's September 1

(Or Maybe it isn't.  Standby.  More CMS Memos are Flying)

February 8, 2008

From an email from CMS regarding CMS-2287:

"The publication of the final school-based rule (CMS-2287-F) on December 28, 2007 does not affect the ability of States to submit claims for costs incurred prior to the effective date of the rule; the rule will be applied prospectively. However, as you know, there's a six-month moratorium on CMS' ability to enforce the rule, due to legislation recently signed into law. This moratorium is scheduled to end June 30, 2008.

Final regulations are typically effective 60 days after publication; however, due to the moratorium, that 60 day period starts once the moratorium ends. As a result, the implementation date for the rule will technically be September 1, 2008. CMS never intended States and Schools to be in compliance with the final rule prior to the start of the 2008-2009 school year, so the moratorium really has no effect on that timeline.

With respect to claims for prior periods, all such claims must meet the timeliness requirements specified at 45 Code of Federal Regulations (CFR) 95.7. In addition, Section 1132(a) of the Social Security Act requires that a claim for federal financial participation (FFP) must Be filed within a two-year period that begins on the first day of the calendar quarter immediately following the quarter in which the expenditure was made. The implementing regulations for timely filing
Are at 45 CFR Subpart A and provide specific guidelines for determining when an expenditure is said to have been made, so as to initiate the two-year filing period.

Finally, although I indicated that CMS was considering developing some sort of additional guidance to address questions surrounding implementation of CMS-2287-F, there are no official plans to do so at the current time and no format specified for any guidance that may ultimately be issued.

Hope this helps. Let me know if you have additional questions.
Thank you.

Sharon Brown|
Administrative Claiming Team,
Division of Reimbursement and State Financing | Financial Management Group |
Centers for Medicare& Medicaid Services | (: 410-786-0673 | *: sharon.brown@cms.hhs.gov"

OK, so here is what I think this all means - the rule (CMS2287) goes into effect the last day of the current (07/08) school year.  CMS is trying to make the case that this is October 1, 2008.  That might be true if your state uses the federal fiscal year.  Most don't, but rather end their fiscal year on June 30.  That would then become the operative date for 2287.  Confused?  Stand by for more, including some serious attempts to extend the moratorium.  Don't stop keeping your time sheets.  This is FAR from over. Hell, she hasn't even come onstage yet.

Help on the CMS Regs from the Kaiser Family Foundation

February 7, 2008

If you are confused by the multiple CMS regulations of the past nine months, you will appreciate this analysis done by the Kaiser Family Foundation.

The Evisceration of the Departmental Appeals Board

January 28, 2008

It Couldn't Happen to a Nicer Fellow

WASHINGTON, MAY 12, 2008—Dennis G. Smith, the former director of the federal Center for Medicaid and State Operations, has been named a senior fellow in health care reform at The Heritage Foundation's Center for Health Policy Studies.

Smith begins work in a visiting position at the prominent conservative think tank this week, where he will research ways to improve the Medicaid program, the future of long-term care and state health care reform initiatives.

Congress Jumps on its Horse and Rides Off in All Directions

May 8, 2008 - 11:00 AM PST

Anti-war Democrats threaten leaders' supplemental plans

As House leaders pulled the emergency supplemental spending bill from Thursday's calendar, they face new problems from the party's left wing in even getting the bill to the floor.

A leader of the Out-of-Iraq Caucus, upset that the spending bill continues the war well into 2009, said this morning that liberal members may join conservative Democrats in voting against the procedural motion needed to bring the bill to the floor.

Leaders of the conservative Blue Dog Democrats[1] have said they may have enough votes to block the bill from coming up. They are angered that the bill would create a new educational benefit for veterans, called the GI Bill of Rights, without offsetting the cost with tax hikes or spending cuts.

 If Republicans hold together, 15 Democratic "no" votes would block consideration. Out-of-Iraq Caucus leader Rep. Maxine Waters (D-Calif.) said her caucus could add to the total.

"We know there are some people who are considering voting against it," Waters told reporters. "If they do, we may join them."

Waters also said the Out-of-Iraq Caucus has not committed to supporting the "war policy" portion of the supplemental that makes withdrawal of combat troops from Iraq by December 2009 a goal, and orders that Iraq repay half the reconstruction funds included in the bill.

In meetings among liberal Democrats there have been complaints this week that the "goal language" is too weak, and that the U.S. should not make Iraq pay for its reconstruction after bombing the country.

House Speaker Nancy Pelosi (D-Calif.) indicated Wednesday night that the bill could be held until next week because of what she says are Republican delaying tactics. Aides indicated that negotiations with Blue Dogs on the GI Bill were also a consideration. When Thursday's schedule was made public, the supplemental spending bill was not on the calendar.

----------------------

Kaiser Daily Health Policy Report

 [May 08, 2008]

      The Senate Appropriations Committee has moved to next week plans to mark up[2] a supplemental war appropriations bill that will include language to block for one year seven new Medicaid regulations proposed by the Bush administration, as well as additional funds for FDA, CQ Today reports (Higa, CQ Today, 5/7). The House version of the legislation, which would cost more than $183 billion, includes the Medicaid language but not the FDA funds.

According to Sen. Herb Kohl (D-Wis.), chair of the Senate Appropriations Subcommittee on Agriculture, Rural Development, FDA and Related Agencies, the Senate version of the bill will include $275 million for FDA. The legislation would provide $125 million for food safety; $100 million for medication and medical device safety; $40 million to modernize FDA science and the agency work force; and $10 million to upgrade FDA facilities and laboratories. Kohl said, "With serious concerns about the FDA lacking the resources to do its job, this much needed increase in funding means the agency can hire more food inspectors, open offices overseas, expand data collection and take other necessary steps to prevent our food and drug safety being severely compromised" .

However, the mark up of the bill might "prove to be nothing more than an exercise in regular appropriations procedure," as Senate Majority Leader Harry Reid (D-Nev.) "has made it clear that he intends to bring the House bill to the floor" and Republicans likely will oppose the legislation, which "appeared certain to have much more domestic spending than the House bill," CQ Today reports.

Delay Likely for House Version

Democratic leaders had hoped to move the House version of the bill to the floor on Thursday, but on Wednesday they "expressed pessimism that they would be able to move the bill" this week because of opposition from the Blue Dog Coalition and "Republican procedural delays" on a separate bill.

The Blue Dog Coalition opposes the legislation because of a lack of offsets for some of the funds that the bill would provide. The House Rules Committee late Wednesday "sent out a notice that it did not plan to consider a rule for debate of the supplemental measure until next week -- a clear indication that the House leadership's appeals to the Blue Dogs had failed," according to CQ Today.

On Wednesday Bush reiterated his promise to veto the legislation in the event that the cost would exceed $108 billion.

[1]

Blue Dog Democrats are a group of 47 moderate and conservative Democratic Party members of the House.  The Blue Dogs promote, among other things, fiscal conservatism and accountability. Many members come from conservative districts.  In 2006, Blue Dog a number of Democratic candidates  were elected in conservative-leaning districts, ending years of Republican dominance in these districts.

The term, Blue Dog Democrat, is playfully derived from the original term Yellow Dog Democrat. It was former Democrat Rep. Pete Geren, of Texas, who said that the members have been "choked blue" by those extreme Democrats, from the left who are usually referred to as Yellow Dog Democrats.  When the South as a region was a political stronghold for Democrats in the first half of the 20th century, it was said that a Southern voter would vote for a mangy yellow dog before he/she would vote for a Republican. So a “Yellow Dog Democrat” implies one fiercely loyal to the Democratic party.

[2]

A Mark-Up refers to the meeting of a Committee held to review the text of a bill before reporting it out.

Committee members offer and vote on proposed changes to the bill's language, known as amendments. Most mark-ups end with a vote to send the new version of the bill to the floor for final approval.

Live National Conference on Medicaid in the Schools!

May 5, 2008

LEAnet, a national coalition of local education agencies, will host a live national conference on May 21st from one to three pm, EST.  You can participate in the conference on the Web.  Participation requires only a broadband connection to the Internet and a piece of free software called Quicktime.  Speakers will include Sara Rosenbaum from the Center on Public Health Law at George Washington University; Bruce Hunter, Legislative Affairs Director from the American Association of School Administrators; Dr. Luann Purcell, Executive Director of the International Council of Administrators of Special Education; John DiCecco, who manages a number of federal reimbursement programs for the Los Angeles Unified School District; and Greg Morris, Executive Director of LEAnet.  Attendance is limited to the first one thousand applicants.  This is your chance to get the latest news on Congressional action to protect reimbursement for Medicaid in the schools, potential impact on school programs, an overview of the Medicaid program as it applies to school programs, and efforts by LEAnet to build and maintain a national coalition to oppose CMS program funding cuts.  It will also be possible to submit questions by phone or email during the conference.

To register, click HERE

Even Less Help in Hard TImes

New York Times Editorial

May 1, 2008

The troubled economy could soon create a major fiscal crisis for the state-run Medicaid and children’s health programs that would only be exacerbated by the Bush administration’s efforts to cut these programs back. Congress must provide temporary aid to the most beleaguered states and find a permanent way to protect Medicaid and children’s health programs from wrenching cuts every time a recession hits.

The problem was laid bare in a report this week from the Urban Institute, funded by the Kaiser Family Foundation. Researchers estimated that each percentage-point rise in the unemployment rate would increase Medicaid and children’s health enrollments by one million people as more families fall into poverty. And it was estimated that it would drive another 1.1 million people into the ranks of the uninsured as they lose their employer-sponsored coverage.

This will happen at a time when state governments are ill prepared to cope because their tax revenues are plunging during the economic downturn. By one count, 27 states and the District of Columbia are forecasting some $40 billion in budget deficits for the coming year.  . . . This is a terrible time to reduce funding for safety-net programs. Congress needs to place a moratorium on the Medicaid regulations by a veto-proof margin and find a way to overturn the children’s health rules. As a permanent remedy, Congress should restructure Medicaid and children’s health programs so that federal financing increases during bad economic times — when people most need their government’s help.

The full editorial can be found here.

Panic in the West Wing

April 30, 2008

As part of the Administration’s ongoing efforts to eliminate health care coverage for 28 million of our nation’s most vulnerable children, the White House continues to press for a package of seven ill-advised cuts to Medicaid programs.  The cuts jeopardize the ability of states to provide critical health services to millions of children, including low-income children, disabled children, children with special health needs, and foster youth.

In the aftermath of its embarrassing defeat in the House, which passed a moratorium on the seven regulations on a vote of 349 to 62, with nearly two-thirds of the House Republicans voting with their Democratic colleagues, the administration has turned to desperate measures.  One of these is an attempt to divide a coalition of groups opposing the cuts by offering to accept a short-term moratorium on two of seven proposed Medicaid regulations, leaving victims of the other five to twist slowly in the wind.  This arrangement would temporarily stall two of the new regulations that would prevent states from using Federal Medicaid funds to help pay for physician training, reduce reimbursement to hospitals and nursing homes operated by state and local governments, and limit coverage of rehabilitation services for individuals with disabilities and mental illnesses. The other five regulations would be implemented.

Attempting to reduce the political power of the coalition by separating out these two regulations is a disingenuous and transparent move on the part of an anxious White House and is political suicide for many Republican Senators.  Thirty-five Senators are up for reelection in the Fall.  Twenty-three of those Senate seats are currently held by Republicans and of those, five are open due to retirement of the Republican incumbents.  Is the White House really prepared to have 18 of its Senators run for reelection carrying not only the burden of the President’s war and a badly wounded economy but also a concerted effort to remove health care coverage for fragile children?  If I were a Republican Senator I would be getting as far away from 1600 Pennsylvania Avenue as possible. 

Opposing a temporary moratorium on the seven regulations is bad public policy and bad politics. 

Flawed public policy cannot be remedied by desperate political chicanery. 

Electing more of your own party is not possible when you force your candidates to defend ill-advised regulatory action. 

Our thanks to Sharon Hunt for her input

Just a Random Thought

April 29, 2008

Whether the moratorium on the CMS cuts will make it through the Senate and with enough votes to override a presidential veto remains to be seen. The primary opponent, Senator Charles Grassley (R-IA) said, in a recent speech, ‘‘It is an absolute farce for anyone to argue that all of those [Medicaid] dollars are being appropriately spent and that Congress ought to just walk away from these issues.’’  The same thing could be said about any governmental program or agency, including the U.S. Senate. 

It is possible that the Senate finally seems ready to check the thinly veiled animosity the Bush administration has been showing toward Medicaid and other federal health programs for the poor and uninsured.

We all want any problems with Medicaid fixed. But forcing the states to pick up more of the tab at a time when a likely recession could make it difficult for them to balance their budgets isn’t doing the taxpayers any favors.  H.R. 5613 won’t prevent the rule changes, just delay them a year to give the states more time to prepare and for the nation’s economy to turn around. It’s a reasonable precaution that Senators should back.

Do You Think the Folks Back Home Know About Senator McConnell's

Attempts to Protect the Medicaid Cuts?

April 27, 2008

Based on information submitted to Representative Henry Waxman by the Commonwealth of Kentucky, here is the impact of the cuts Senator McConnell (R-KY) is attempting to protect.  Comments are from the State report.

Loss of federal funds in 2008: $21-$26 million          

Over 5 years: $118 million

Impact: "The primary loss would be in payments that could be made to Public Hospitals who are an essential part of the Health Care safety network in this state."

Loss of federal funds in 2008: $24-$27 million          

Over 5 years: $127 million

Impact: "…the hardest hit provider groups are Kentucky’s publicly funded University Hospitals which provide the lion’s share of indigent hospital care for Kentucky’s poorest citizens. The two University Hospitals are also the largest teaching hospitals in the state and they can not afford to lose their Medical Education payments."

Loss of federal funds in 2008: $126-$135 million       

Over 5 years: $630 million

Impact: "Obviously, cuts in services provided to recipients or even the number of recipients served would have to be considered in order for Kentucky to absorb this large financial impact … this regulation could have dramatic and real impact on all of Kentucky’s 722,000 Medicaid recipients."

Loss of federal funds in 2008: $3 million                   

Over 5 years: $15 million

Impact: "It is intuitive that there will be some impact as CMS continues to carve away at the edges of what is an allowable Medicaid service … there will be considerable administrative impact as multiple Kentucky Medicaid programs are reviewed to see if our current covered services meet the new rehabilitation definition."

Loss of federal funds in 2008: $13-$15 million         

Over 5 years: $65 million

Impact: "The regulation … would have a definitive impact on care to Kentucky’s 200,000 Medicaid children who are served through this program.

Loss of federal funds in 2008: $37 million

Over 5 years: $200 million

Total amount lost in the first year would be just under a quarter of a billion dollars. 

The five year loss would be $1.155 billion dollars.

And, according to another study, done in 2003, every $10 million cut in Kentucky’s state share of Medicaid spending could lead to a loss of $45.9 million in state business activity, resulting in 491 jobs lost in the state.

Perhaps the good folks in Kentucky might want to contact the Senator and let him know what they think about all of this.

The Honorable Mitch McConnell

361-A Russell Senate Office Building

Washington, DC 20510

Office Phone 202-224-2541

Office Fax   202-224-2499

Email Web Form mcconnell.senate.gov/contact_form.cfm

A Reprieve?

The Medicare, Medicaid, and SCHIP Extension Act of 2007

[S 2499]

December 19, 2007

This bill has cleared both chambers and is ready for the President's signature, which is likely, before Christmas.  PDF of the bill is available here.  See sections 201 (SCHIP extension) and 206 (moratorium on CMS cuts).

MN Lawmakers Oppose CMS Regulations

December 12, 2007

Minnesota lawmakers say they will push legislation to head off new federal Medicaid rules that would cut reimbursement for programs serving abused and neglected kids and others, which could cost the state tens of millions of dollars in aid.  For the full story, click here

Finally, a Champion or Two !

December 11, 2007

 Representative Boozman Offers Bill to Protect Medicaid Reimbursements

Legislation places moratorium on proposed cuts

 Contact: Ryan James  (202) 225-4301

Washington, Dec 11 - U.S. Representative John Boozman (R-AR) today took steps to protect Medicaid reimbursements from cuts in financial support under rules proposed by the Administration.

Rep. Boozman joined with Rep. Mike Ross (D-AR) and Rep. John R. "Randy" Kuhl, Jr. (R-NY) to introduce H.R. 4355. The legislation, offered by Rep. Boozman, would place a moratorium on enforcement of a proposed rule from the Centers for Medicare and Medicaid Services that would eliminate hundreds of millions in federal funding for administrative, transportation and habilitative services for eligible children.

Reps. Ross and Kuhl are original co-sponsors of the legislation.

“This funding is important for the health of the children and families of Arkansas,” Boozman said. “This is common-sense legislation enjoying significant bipartisan support. It need not be held hostage by haggling over other legislation.”

“Many Arkansans rely heavily on the vital services of day habilitation programs,” Ross said. “As a member of the Health Subcommittee of the House Energy and Commerce Committee, I am proud to join with my colleagues to introduce legislation that will ensure that our patients will have continued access to these valuable services.”

“This bill will proactively eliminate a very large problem and expense that the proposed rule will create,” said Rep. Kuhl. “I applaud Congressman Boozman for his leadership on this issue.”

In Arkansas, state programs totaling $165 million are at risk, affecting nearly 21,000 Arkansans.

The language of the Boozman bill is the same language contained in the second State Children’s Health Insurance Program reauthorization plan put forward by House Democrats – a bill already vetoed by the administration and the subject of continued negotiations to find a bipartisan solution. Those negotiations have not proved fruitful.

“This is an important enough issue that it deserves to stand on its own. The battle over SCHIP continues in Congress, but it has yet to come to a point where enough people can put forward a bill which can become law. I offered this bill because I don’t want to see this important money cut due to being part of the SCHIP debate. I don’t know of any one in Congress who wants to see this money taken away, nor do I see any reason why this bill should not move quickly,” Boozman added.

Day habilitation services provide individualized training for people with disabilities in order to provide them with the life skills necessary to avoid institutional settings.

Here is the legislation, set forth in full:

SECTION 1. MORATORIUM ON CERTAIN PAYMENT RESTRICTIONS.

An Interesting Memo from the Congressional Budget Office Regarding SCHIP

December 11, 2007

Here is the CMS Fact Sheet for the Proposed TCM Reg

  The written transcript of the Waxman hearing is available here.

Video of the entire hearing

(Audio only plays when individuals are speaking into a microphone)

National Governor's Association

Letter of Opposition to CMS 2287

November 13, 2007

 Recent OIG Audits of Interest

November 5, 2007

Medicaid School-Based Services in Utah * Review of Payment Rates (A-07-06-04069)
http://www.oig.hhs.gov/oas/reports/region7/70604069.pdf

The State agency's claims for Medicaid reimbursement for school-based services generally were not in accordance with Federal requirements or the State plan.  We were unable to determine what portion of $36.8 million of the $37.9 million claimed was allowable as final payments.  The State agency did not perform a cost settlement reconciling interim payments to actual costs to determine final payments, as required by the State plan, because it considered payments made to school districts to be final payments.  The State agency's claims for the remaining $1.1 million, which were for nursing services that were paid based on the Medicaid fee-for-service schedule, were allowable.

We recommended that the State agency (1) work with the Centers for Medicare and Medicaid Services to determine what portion of the $36.8 million claimed based on interim payments is allowable and (2) perform cost settlements to ensure that future final payments for school-based services are based on actual costs.  The State agency concurred with the recommendations.
__________

Review of Minnesota Medicaid Reimbursement for Targeted Case Management Services for Fiscal Years 2003 and 2004 (A-05-05-00059)
http://www.oig.hhs.gov/oas/reports/region5/50500059.pdf

This audit was part of a nationwide review of targeted case management (TCM) Medicaid program payments.  Our objective was to determine whether the State agency's claim for Medicaid reimbursement of TCM services provided during fiscal years (FY) 2003 and 2004 complied with Federal and State requirements.

Based on our review of 118 claims in 100 sampled beneficiary-months, 7 claims included in 7 beneficiary-months were unallowable because the services were insufficiently documented or unsupported by the case records.  As a result, we estimate that during FYs 2003 and 2004, the State agency claimed $7,311,860 ($3,759,338 Federal share) in TCM costs that were unallowable.  We considered the remaining 111 claims included in 93 beneficiary-months to be acceptable.

We recommend that the State agency (1) refund to the Federal Government the $3,759,338 for undocumented and unsupported TCM services and (2) ensure that TCM services claimed under the Medicaid program are properly documented and meet Federal and State requirements.  In written comments on our draft report, the State agency did not address our recommendations.

The Administration’s Regulatory Actions on Medicaid:

The Effects on Patients, Doctors, Hospitals, and States

Chairman Waxman's Opening Statement, House Oversight Committee Hearing, 11/1/07

(Posted here in its entirety)

Throughout this year, our Committee has held a series of hearings on making government work again. We’ve focused on programs or agencies that once were effective but are now broken or dysfunctional.

Today’s hearing examines one of our government’s most important agencies — the Centers for Medicare and Medicaid Services at the Department of Health and Human Services. Called “CMS” for short, the agency is responsible for administering the country’s two largest health insurance programs, Medicare and Medicaid, which cover nearly 100 million Americans at a cost of over $600 billion. As the largest single purchaser of healthcare in the country, CMS has enormous power to do good or to do harm.

Over the past few months, public and congressional attention has largely been focused on the State Children’s Health Insurance Program, or S-CHIP. Legislation to strengthen S-CHIP and to expand it to cover 10 million children has cleared the House of Representatives on three separate occasions. Members of the House and Senate have already debated S-CHIP numerous times, and that debate is not yet over.

Medicaid is funded jointly by the federal government and the states. It covers more than 60 million low-income Americans. Medicaid is the largest insurer of infants and children in the United States, covering more than 28 million kids. It is also the largest insurer of people with disabilities, covering almost 10 million people. Medicaid is the single largest source of funding for our nation’s public teaching hospitals, children’s hospitals, community health centers, and public clinics — programs that benefit not only the poor, but everyone in their communities.

Unfortunately, little notice has been paid to a series of Medicaid regulations proposed by the Administration over the last ten months. But these proposals would have enormous impacts. They are a thinly disguised assault on the healthcare safety net. If implemented, they would cause major disruption to state Medicaid programs and the people and institutions that depend on them.

In total, the proposals would shift at least $11 billion in costs to state and local governments — the largest Medicaid regulatory cost shift in memory. Since these are federal matching funds, the real cuts in programs at the local level would be at least twice this amount. This would force states to make a difficult choice: either raise taxes or cut vital services. This scenario probably understates the potential for damage, as there are almost certainly more proposals to come.

This morning, our Committee will examine six rules the Bush Administration has proposed. These rules seek to:

Three of these proposed rules target some of our nation’s most vulnerable citizens by cutting funding and services to disabled children, disabled adults, and elementary school kids.

The other three would cut billions of dollars in federal funding from some of our nation’s most vital healthcare institutions — teaching hospitals that are training America’s future healthcare workforce, safety net providers that not only care for Medicaid patients, but millions of uninsured Americans, and public hospitals that support trauma centers, burn units, and other vital but unprofitable programs that benefit everyone in the community — insured and uninsured alike.

Indeed, many of the institutions that will be hardest hit by these CMS rules serve as the cornerstones of their community’s disaster response capability, and are therefore essential for homeland security.

What is almost as troubling as the impact of these rules is the manner in which they are being pursued. One of the proposed rules, the one that affects how states may raise funds for Medicaid and use this money to provide extra support for public hospitals, is a case in point.

Over the past few years, the Bush Administration has repeatedly sought to restrict states’ flexibility to finance the state share of Medicaid. But when bipartisan majorities of the last Congress rejected these efforts, the President sought to bypass the Congress through rulemaking. In response, 300 members of the House and 55 members of the Senate signed letters to Secretary Leavitt opposing the effort. Following the mid-term elections, the Administration renewed its effort in January, once again proposing to change the way Medicaid pays for public hospital costs. Again, bipartisan majorities of the House and Senate wrote to Secretary Leavitt to express “grave concern” or outright opposition to the Administration’s proposal.

Undeterred, CMS pressed ahead.

During the 90-day comment period on the proposed rule, CMS received more than 400 negative comments. The bipartisan National Governor’s Association, the bipartisan National Council of State Legislatures, the bipartisan National Association of Counties, numerous state and county governments, and a large number of hospital organizations, professional associations, and consumer groups all raised concerns. Not one person wrote in support of the rule.

In response, Congress imposed a one-year moratorium on CMS’s authority to implement the rule. Despite all this, CMS still moved ahead.

The very same day that President Bush signed into law the appropriations bill that contained the moratorium, CMS published its final rule, apparently to make sure that the new policy goes into effect immediately upon the expiration of the moratorium.

This is just one example. All of the proposed regulations are made up out of whole cloth by CMS. The most recent change in the underlying statutes that CMS is seeking to “redefine” was passed in 1991 during the first Bush Administration. One statutory provision they are “reinterpreting” hasn’t been changed in forty years. This is clearly lawless regulation, not anchored in statute. It does not have the support of the Congress and it deserves no deference from the courts.

Of course, CMS had other options. It could have gone back to the drawing board to put together regulations that do not threaten the emergency care capacity of many of our nation’s largest cities — cities that are the most likely sites for healthcare disaster needs, such as hurricanes, earthquakes, pandemic flu, and even bioterrorism. It could have developed regulations that do not suddenly shift billions in costs to the states and localities.

Instead, it launched an assault on Medicaid.

These actions, and the subsequent issuance of five more proposals that shift an additional $7 billion in costs to the states, bring us to today’s hearing.

The first panel will describe the effects of these rules on individual Americans, their community providers, and the states.

Dennis Smith, the official at CMS who wrote these regulations, will join us on the second panel.

If past comments are any indication, Mr. Smith will likely assert that CMS is pursuing these rules to preserve the “fiscal integrity” of Medicaid. As I understand this argument, CMS has to destroy Medicaid in order to save it. Let’s be clear: there is no committee in Congress more interested in the fiscal integrity of federal programs than this one.

But let’s also be clear: these regulations are not about program integrity. If they were, CMS would be refining guidance and improving accountability. Instead they seek to prohibit services that have been successful for decades and cut funding that the Congress has specifically preserved. This is not careful surgery on Medicaid; this is reckless amputation.

I very much hope that CMS will listen carefully to what our witnesses and the members of this Committee have to say about its proposals, and then go back to the drawing board. If there truly are fiscal integrity concerns that need to be addressed through new rules, this Committee will consider them. But we will not support an unauthorized regulatory offensive against the states, community providers, and Medicaid beneficiaries. 

Written Statement by Dreadful Dennis can be found here.  Written Testimony of the Other Witnesses Can be Found Below

Witnesses, Oversight Committee Hearing, 11/1/07

Links to written statements from witnesses.  

Transcripts of actual testimony to follow. 

•  Testimony of David Parrella
•  Testimony of Barbara Miller
•  Testimony of Twila Costigan
•  Testimony of Denise Herrmann
•  Testimony of Alan Aviles
•  Testimony of Sheldon Retchin
•  Testimony of Angela Gardner
•  Testimony of Marjorie Kanof

The Legacy

An Editorial

Ever wonder why CMS picks on children's health programs?  This might be one answer.

Every President wants to leave a legacy –  Roosevelt launching his New Deal, Eisenhower ending the Korean war, Kennedy with the promise of Camelot, Johnson with the Great Society, Reagan and the Berlin Wall.

This President's legacy is highly targeted and its audience is the Neocons.  The mission is simple – destruction of the Great Society programs.   In the first term, the focus was on Social Security.  That campaign failed, so the administration turned its attention to Medicaid, an easier target because of its reputation for waste and abuse and the relative political impotence of its beneficiaries.  

With Social Security, Bush took on the AARP and millions of Boomers who were looking forward to receiving the promises of the program in their Golden Years.  

With Medicaid - other than some service providers who would probably not take Title XIX patients if they had a choice, as Medicaid is not a profitable part of their business -   the President's opponents are the Medically Needy. 

Most Social Security recipients vote.  Many Medically Needy do not.

Because Medicaid is an entitlement program, limiting enrollment is not an option.  To reduce the cost of the Medicaid program, therefore, it is necessary to eliminate Fraud, Waste, and Abuse.   In a program with a budget of over three hundred billion dollars and climbing, there is bound to be a great deal of FWA. In some parts of Title XIX and its sibling, Title XXI, however, the Administration's search for FWA is as misguided as was its search for WMDs in Iraq. 

Make no mistake about it; the Bush administration is out to destroy children's health programs, from SCHIP to school-based health services.   CMS-2258/2213/2261/2287 are just the beginning.  To this administration, Bowen means nothing, nor does EPSDT, nor the 1989 OBRA, 1903 (c) of the SSA, the Medicare Catastrophic Coverage Act of 1988, or even IDEA.   Apparently, Mr. Leavitt and Mr. Smith were absent the day their high school civics instructors pointed out that you can't use a regulation to trump a statute or a Supreme Court decision.   That has not stopped them from trying.

In the area of foreign policy, George Bush's legacy will be an unnecessary and unwinnable war.  In domestic policy it will be the destruction of children's health programs.  The crippling of SCHIP and Medicaid in the schools may be a theoretical victory for Neoconservatives. For the rest of us, it means a generation of children without primary health care and the increased cost of delivering health services as intervention instead of prevention.  Our country will suffer from the Bush legacy in both areas.