Highlight on the District of Columbia: Congress fails to stop D.C. Death with Dignity law

Although the House Committee on Oversight and Government Reform voted to advance a resolution (H.J. Res. 27) that would nullify the District of Columbia’s Death with Dignity Act (D.C. ACT 21-577), the House failed to act on the resolution in time to block the law from becoming effective. Under the Constitution, D.C. is a federal district under the exclusive jurisdiction of Congress; since the 1973 District of Columbia Home Rule Act (P.L. 93-198), however, certain powers were granted to the city council and mayor, while Congress retained the authority to review all legislation passed by the council and imposed other restrictions. Bills passed by the council and signed by the mayor must be sent to Congress; they become law if Congress fails to block the law within 30 legislative working days.

Death with Dignity Act

 D.C.’s Death with Dignity Act–like similar laws passed in the states of California, Colorado, Montana, Oregon, Vermont, and Washington–legalizes physician-assisted suicide for terminally ill residents of the District who retain the ability to make and communicate health care decisions to health care providers and who complete certain required steps. Under the Act, individuals who are terminally ill may request life-ending medication from a physician, though no health care provider is required to prescribe or dispense life-ending medication even if the individual qualifies. To qualify, individuals must:

  • in the opinion of a court or the patient’s attending physician, consulting physician, psychiatrist, or
    psychologist, have the ability to make and communicate health care decisions to health care
    providers;
  • be a resident of the District of Columbia;
  • have an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, result in death within six months; and
  • voluntarily make two oral requests and one written request in the presence of witnesses.

The Act also imposes requirements upon physicians, including providing the individual with certain information to ensure informed consent, and making referrals, recommendations, and counseling.

The bill was first introduced in January 2015, and a public hearing was held in July of that year. In November 2016, the City Council passed the bill by a vote of 11 to 2, and Mayor Muriel Bowser (D) signed it in December. It provided for an effective date immediately following the 30-day Congressional review period.

Congressional action

The term “Legislative Days” is a term of art. According to the Congressional Research Service:

In context of the daily activities of Congress, any calendar day on which a chamber is in session may be called a (calendar) “day of session.” A legislative day, by contrast, continues until the chamber adjourns. A session that continues into a second calendar day without adjourning still constitutes only one legislative day, but if a chamber adjourns, then reconvenes later on the same day, the single day of session includes two legislative days. Conversely, if a chamber recesses and then reconvenes on the same day, the same day of session and the same legislative day both continue. Finally, when a chamber recesses overnight, instead of adjourning, although a new calendar day of session begins when it reconvenes, the same legislative day continues.

The bill was transmitted to Congress on January 6, 2017, three days after the 115th Congress was sworn in. H.J. Res. 27 was introduced on January 12 by sponsor Rep. Brad Wenstrup (R-Ohio), and referred to the Oversight Committee. On February 13, 2017, the Committee voted to advance the resolution to consideration before the full House.

By the D.C. City Council’s determination, the Congressional review period for the Death with Dignity Act ended on February 18, 2017; despite the Committee’s advancement, the House failed to bring the resolution to a floor vote before the review period ended. To succeed in disapproval of a D.C. law, such resolutions must pass both Houses of Congress–though only by a simple majority and therefore not subject to Senate filibuster–and be signed by the President.

Highlight on Maine: Able-bodied MaineCare recipients could be subject to more stringent requirements

“Able-bodied adults” would be subject to work/education requirements and a lifetime limit of five years under changes Mary Mayhew, director of the Maine Department of Health and Human Services, proposed to Maine’s Medicaid program, MaineCare. In a letter to HHS Secretary Tom Price, Mayhew said she would be seeking the changes in a forthcoming formal 1115 demonstration waiver request.

Mayhew’s letter comes at the heels of a referendum campaign to expand Medicaid in Maine at, according to Mayhew, a cost of $400 million over the next five years. A second motivation is the apparently sympathetic Trump Administration, which has proposed replacing Medicaid with block grants.

Mayhew said that the state has expanded its Medicaid program over decades, resulting in the use of hundreds of millions of state dollars “to turn Medicaid into an entitlement program for working-age, able-bodied adults.” MaineCare serves 270,000 individuals, just over 20 percent of Maine’s population, which, Mayhew said, represents a 22 percent reduction in enrollment since 2011.

Mayhew’s Medicaid proposals include the following:

  • work or education requirements for able-bodied adults in the Medicaid program, similar to the work requirements for Temporary Assistance for Needy Families (TANF) or Able-Bodied Adults Without Dependents (ABAWDs) in the Supplemental Nutrition Assistance Program (SNAP);
  • a five-year lifetime limitation on able-bodied adults’ eligibility for Medicaid;
  • limiting non-emergency transportation (NET) to situations where the underlying service to or from which individuals are being transported is a required Medicaid service and requiring them to access existing transportation resources before accessing NET;
  • requiring monthly premiums for adults who are able to earn income;
  • requiring monthly coinsurance of a set amount (approximately $20) for all members, cost-sharing of $20 for using the emergency department, and fees for missed appointments;
  • applying a reasonable asset test to Medicaid; and
  • waiver of the retroactive coverage of services incurred during the 90 days before Medicaid eligibility.

 

Highlight on Puerto Rico: Just how bad will Puerto Rico’s Medicaid funding crisis be?

Puerto Rico is in danger of a serious Medicaid funding crisis beginning late 2017, according to a data point report by the Office of the Assistant Secretary for Planning and Evaluation (ASPE) under the HHS Secretary from January 12, 2017. Under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), territories like Puerto Rico receive not only an increased funding rate, but a temporary additional Medicaid funding amount for spending above their statutory caps for use between July 2, 2011 and September 30, 2019 (ACA sec. 2005), and another sum provided in lieu of funding for individuals enrolling in health insurance exchanges to be used by December 31, 2019 (ACA sec. 1323). (States only would only receive the sec. 1323 funding when the sec. 2005 funding is exhausted.) Amounting to $6.4 billion, these funds will not reach 2019 but instead will be depleted as early as the first quarter of fiscal year 2018 (or the fall of 2017). The route that Puerto Rico takes in responding to this funding crisis could take this situation from bad to worse.

Background and ACA

Both states and the federal government pitch in to jointly fund the Medicaid program. The amount that comes from the federal government is called the federal medical assistance percentage (FMAP). How much FMAP a state receives is based on its per capita income, with the average being 57 percent (50 percent for wealthier states, 75 percent for the poorest), adjusted on a three-year cycle. U.S territories, like Puerto Rico, however, receive an FMAP amount that varies greatly from that of states because their rates are capped by statute.

Puerto Rico faces immense poverty, with individuals being eligible for Medicaid with an annual income of only $6,600 (compared to $15,800 for the continental U.S.) and families with an income of $10,200 ($32,319). Over one million people are enrolled in Medicaid in Puerto Rico. Under the per capita income formula used to calculate the FMAP of states, and still considering the statutory maximum that is in place, Puerto Rico would receive 83 percent (93 percent absent the statutory maximum). Instead, Puerto Rico’s Medicaid expenditures are matched at 55 percent. This is an increase from the 50 percent that was in effect prior to passage of the ACA.

 Possible scenarios

Two scenarios are provided in the report as options for Puerto Rico to approach the exhaustion of funds. First, Puerto Rico could continue to spend the same amount of its own funds in fiscal year (FY) 2018 as in 2017, adjusting for inflation on a per-enrollee basis, which would result in a decrease in spending to 44 percent less than that required to maintain current enrollment of over one million today. Around 500,000 people would lose coverage. Although this scenario is similar to the funding that was in place prior to the ACA, considering that officials may choose to prioritize infrastructure and debt payments over Medicaid, they may decide on scenario two.

The second option is that Puerto Rico spends none of its own unmatched funds over those necessary to get the maximum federal funding, but that would result in spending being 80 percent less than that required to maintain the current enrollment, and nearly 900,000 individuals would lose Medicaid coverage.

In either case, it is assumed the Puerto Rico will reduce coverage (lowering income eligibility levels or capping enrollment) rather than reduce benefits for those covered by Medicaid.

Highlight on California: The Golden State failed to verify aliens’ Medicaid eligibility

California obtained $9.9 million in improper Medicaid reimbursement over a five-year period by failing to correctly identify all nonreimbursable claims for nonemergency services provided to qualified aliens, the OIG determined as part of an audit. The OIG discovered that the overpayments resulted from errors in the system used by the state to verify alien qualification for Medicaid. The OIG recommended that the state refund the overpayments and take steps to correct the verification system.

Medicaid Restrictions

Federal health care benefits are typically only allowable when they are provided to certain classes of persons: U.S. citizens, U.S. nationals, or qualified aliens. A further limitation exists for qualified aliens. Generally, qualified aliens are not permitted to receive federal benefits until five years after entering the U.S. with qualified alien status. However, before the five-year period runs, qualified aliens may receive services necessary to treat an emergency medical condition and, if a state elects to allow them, services provided to certain lawfully residing children and pregnant women.

Verification

States are obligated to maintain systems to determine whether qualified aliens have met the required five-year waiting period. The HHS Office of Inspector General (OIG) conducted a review of California’s verification system, to determine whether the California Department of Health Care Services correctly identified all nonreimbursable claims for nonemergency services provided to qualified aliens.

California System

To meet its federal requirements, California created the quarterly alien claiming adjustment report adjustment report in its Medicaid Management Information System (MMIS). The adjustment report was designed to identify services provided to qualified aliens who had not satisfied the waiting period requirement.

Audit

The OIG audit included quarters ending June 2010, September 2010, June 2011, June 2012, June 2013, and June 2014. During that time, the California agency identified $215.9 million as nonemergency services provided to qualified aliens for which the state did not claim Federal Medicaid reimbursement. However, the OIG determined that the state agency did not identify all the necessary claims for its adjustment reports. Specifically, the OIG identified errors when claims were approved for payment in one quarter and paid in a later quarter. As a result of those errors, the state agency claimed $9,872,618 in unallowable federal Medicaid reimbursement.

Recommendations

The OIG recommended that the state agency: (1) refund the $9,872,618 to the federal government; (2) identify and refund any subsequent overpayments; and (3) ensure, in the future, that the MMIS correctly identifies all nonreimbursable claims for nonemergency services provided to qualified aliens. The state agency partially agreed with the first recommendation, noting its belief that the refund amount was overstated. The state agency agreed with the second and third recommendations.