NDY is grateful to disability rights attorney Kathryn Carroll for her assistance in filing a public comment on the [CMS-9912-IFC] Center for Medicare and Medicaid Services Interim Final Rule: Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency. Excerpts are below and, to read the whole comment, go here.
January 4, 2021
Seema Verma, Administrator
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-9912-IFC
P.O. Box 8016
Baltimore, MD 21244-8016
RE: Comments on CMS-9912-IFC
Center for Medicare and Medicaid Services Interim Final Rule: Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency
Dear Administrator Verma:
Not Dead Yet appreciates the opportunity to submit comments on the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule “Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency”. Not Dead Yet is a national grassroots disability rights organization led by disabled people, advocating for nondiscrimination in health care. We support people with disabilities’ equal rights to life-sustaining treatment. We oppose assisted suicide laws as a deadly form of discrimination. We support people with disabilities’ right to live in the community and not be forced into nursing homes and other institutions.
Medicaid provides necessary healthcare coverage to poor and disabled people, and is the primary funder of long-term services and supports (LTSS) required by older, disabled, and chronically ill people to live our daily lives. Home- and community-based services (HCBS) provided by Medicaid are the difference between disabled individuals being able to enjoy life in and as part of the community and segregation in institutional settings without choice and freedom.
Not Dead Yet advocates for nondiscrimination in healthcare; disabled people, especially those with multiple marginalized identities, face discrimination and bias by medical professionals and the healthcare industry at large. During a public health emergency, we are at even greater risk of being denied life-preserving or life-sustaining treatment through triage and crisis standards of care policies. Crisis standards of care based on discriminatory evaluations of disabled lives are pervasive.
Furthermore, disabled people who would be denied treatment under triage or crisis standards of care are being left out of vaccine distribution plans.[1]
Based on the overwhelming reliance on Medicaid for essential healthcare services including LTSS, the importance of HCBS to fulfilling the civil right of disabled people to not be institutionalized, the need for sufficient healthcare access to prevent disabled people from needing to seek care where we would be triaged, and the need for equitable access to the COVID-19 vaccine, Not Dead Yet strongly opposes the Interim Final Rule (IFR) allowing significant cuts to Medicaid funding and coverage.
The FFCRA correctly protected Medicaid beneficiaries.
The Families First Coronavirus Response Act (FFCRA), signed into law on March 18, includes an option for states to receive enhanced federal Medicaid funding. In exchange for the additional funds, states must agree to comply with maintenance of effort (MOE) protections. These protections help ensure individuals are able to get and stay covered during the crisis and receive needed services. The FFCRA includes an explicit requirement to preserve enrollee’s existing benefits – both their enrollment in Medicaid overall, and the services for which they have been eligible. At a time of such turmoil, Congress chose to protect enrollees and ensure access to services by maintaining the “status quo.”
In a reversal of CMS’s stated policy from March to October 2020, this IFR would now allow states to impose numerous types of coverage restrictions for individuals who are enrolled in Medicaid, including reduced benefits; reduced amount, duration, and scope of services; increased cost-sharing; and reduced post-eligibility income. The IFR will also result in terminations for some individuals who should not be terminated. We oppose these revisions to the MOE, which are inconsistent with the FFCRA and will result in harm for Medicaid enrollees. We also oppose allowing states to circumvent required transparency procedures for 1332 waivers and receive enhanced funding despite refusing to cover COVID-19 vaccination for some Medicaid enrollees. We recommend that CMS withdraw these provisions.
Reduction of Optional Benefits
This rule gives states sweeping authority to reduce optional Medicaid benefits; cut the amount, duration and scope of benefits; increase utilization management; increase cost-sharing; and reduce post-eligibility income – all with no consequences for their enhanced matching funds under the FFCRA. These changes contravene the letter and intent of the statute, and will result in significant harm for enrollees.
Optional Medicaid benefits include essential services like physical and occupational therapy, dental and vision services, and home and community-based services. After the previous economic downturn in 2008, many states made significant cuts to each of these services. Additional cuts at the state level are threatened as states grapple with the economic consequences of the pandemic.[2] Cuts to these services will cause significant harm.
While Not Dead Yet is generally opposed to the reduction of optional Medicaid benefits, we focus in particular on HCBS. HCBS benefits under Medicaid are optional and yet are essential for older, disabled and chronically ill people to exercise our preference and our civil right to not be institutionalized under the U.S. Supreme Court’s 1999 Olmsteddecision, which found that the unjustified institutionalization of people with disabilities is discrimination under the Americans with Disabilities Act.[3] Forcing older, ill and disabled people into nursing facilities is always a civil rights violation, always a threat to an individual’s health and well-being, exposing them to well-documented risks of abuse and neglect. Not only are individuals in congregate settings of all types at greater risk of contracting illnesses like COVID-19, but reports and investigations of abuse and neglect are less likely to take place as access to facilities is limited under coronavirus-related restrictions. Because of COVID-19, now more than ever institutionalization becomes a death sentence.[4] . . .
To read the whole comment, go here.
References:
[1] See our comments on the Discussion Draft of the Preliminary Framework for Equitable Allocation of COVID-19 Vaccine from the Committee on Equitable Allocation of Vaccine for the Novel Coronavirus, National Academies of Sciences, Engineering, and Medicine. New York’s vaccination plan, for example, contemplate providing vaccines to residents of nursing ”homes” and other congregate facilities, and home care workers. However, it does not contemplate individuals who might qualify for a nursing facility level of care but are living in the community with HCBS supports. See https://covid19vaccine.health.ny.gov/phased-distribution-vaccine#phase-1a.
[2] For example, New York made significant cuts to Medicaid in the State budget on April 2, 2020. Those cuts are described here: http://www.wnylc.com/health/news/85/#summary.
[3] See generally Kaiser Commission on Medicaid and the Uninsured, Olmstead’s Role in Community Integration for People with Disabilities Under Medicaid: 15 Years After the Supreme Court’s Olmstead Decision (June 2014), available at https://www.kff.org/medicaid/issue-brief/olmsteads-role-in-community-integration-for-people-with-disabilities-under-medicaid-15-years-after-the-supreme-courts-olmstead-decision/.
[4] As of December 4, 2020, the New York Times reported that 38% of coronavirus-related deaths in the U.S. are linked to nursing facilities. https://www.nytimes.com/interactive/2020/us/coronavirus-nursing-homes.html.