Highlight on Kentucky: Bevin’s proposed Medicaid waiver hits snags

Kentucky Governor Matt Bevin’s (R) administration will be making some changes to its Section 1115 waiver, known as the Kentucky Helping to Engage and Achieve Long Term Health (HEALTH) demonstration project. The proposal, which was published in June, saw pushback from the federal government and health advocacy organizations for Bevin’s plan to undo Medicaid expansion under the Affordable Care Act and for some of the HEALTH project’s provisions that would add work or volunteer requirements for some Medicaid recipients.

Kentucky HEALTH proposal

If CMS approves the Section 1115 waiver for Kentucky HEALTH, the state’s Medicaid program would include a work requirement and the payment of premiums. The state sees Kentucky HEALTH as temporary coverage for able-bodied adults without health coverage through an employer. It would require such beneficiaries participate in “community engagement” activities, which include employment or job training, job searching, and volunteer work, for five hours per week after three months of program participation. This requirement ramps up to 20 hours per week after 12 months. All beneficiaries, excluding pregnant women and children, would be subject to a flat monthly premium, established on a sliding scale based on the individual’s income level. For more on the proposal, see Kentucky Medicaid proposal includes community engagement, employer program, premium requirements, Health Reform WK-EDGE, June 29, 2016.

Criticism of plan

The Kentucky HEALTH plan has faced criticism from multiple sources. In June, HHS Secretary Sylvia Burwell responded to an open letter from Bevin’s predecessor, former governor Steve Beshear (D), saying that CMS evaluates Section 1115 waiver proposals based on access to coverage and affordability of care. Burwell wrote, “states may not impose premiums or cost sharing that prevent low-income individuals from accessing coverage and care, nor may they limit access to coverage or benefits based on work or other activities.” She explained that the waiver proposal had not yet been submitted, but that the agency was committed to working with Kentucky to reach a solution.

The Kentucky Equal Justice Center submitted extensive comments on the HEALTH plan, calling the proposals in the plan “at least a step removed” from the state’s goals with the plan, and wrote, “We suggest that the framers of the waiver consider a different premise: health coverage and care are work supports rather than work substitutes.” The Center also pointed out the logistical challenges of the community service requirements in the proposal, by doing some quick mathematical calculations. In its hypothetical, the Center laid out a scenario where 100,000 Kentuckians statewide are covered for a year and have a 20-hour work requirement–creating 2,000,000 hours of work activity in a single week to arrange, track, and enforce. Even on a much smaller scale, such as 10,000 individuals with the 20-hour requirement, the state would need to find 10,000 nonprofits to take one volunteer each, or 1,000 nonprofits to take 10 volunteers.

The Kentucky Nonprofit Network raised similar concerns in its comments, writing that “supervising, training and managing volunteers requires nonprofit resources of staff, time, funding and expertise.” The Network shared a sampling of comments received from its member organizations regarding the costs and burdens that would be put on nonprofits as a result of the proposed requirement.

State response

Originally, Kentucky planned to accept comments through July 22, 2016. It later extended the comment period through August 14, giving the public an additional three weeks to submit its views on the proposal. Soon after the extended comment period ended, state Cabinet for Health and Family Services Secretary Vickie Yates Brown Glisson told the Kentucky legislature’s Medicaid Oversight and Advisory Committee that, based on the comments received, the Bevin Administration would be making changes to the HEALTH proposal, but that it was too early to detail what those changes would be.

Based on Burwell’s statement in her letter to Beshear that most Section 1115 waivers take six to 12 months to implement after submission to CMS, it is unlikely that Kentucky’s Medicaid expansion coverage will be changing in January 2017.

Update on Controversies in Medicaid Managed Care

Since October 2012, Kentucky’s Medicaid officials have been on notice that Kentucky Spirit, the Medicaid managed care organization  (MCO) owned by Centene, was terminating its contract at the beginning of July. As we reported in June, the Circuit Court in Franklin County ruled that neither party had breached the contract yet. That meant that when Kentucky Spirit terminated, it would breach the contract, and, therefore,  would be liable to the state for liquidated, or predetermined, damages. Kentucky Spirit appealed.

As the termination date approached, state officials returned to court seeking an order to keep the MCO from leaving. On June 26, 2013, Judge Thomas Wingate denied the state’s request. For one thing, the appeal ended his jurisdiction over the matter. But, he added, the court had repeatedly cautioned the state to prepare for the termination, and its lack of preparation did not justify  the extraordinary remedy of an injunction.

State officials asked the Kentucky Court of Appeals for an emergency order to compel Kentucky Spirit to stay on the job through August. On Monday, July 1, 2013, Chief Appeals Court Judge Glenn Acree denied the request for the same reasons. The state had ample time to prepare, and it should not need another two months to transition the MCO’s 124,000 members to one of the two remaining plans. Kentucky Spirit  ceased offering services to beneficiaries at 12:01 a.m. Saturday, July 6, 2013, although about 100 employees remain to help patients and providers with the transition.

Developments in Other States

Mississippi also moved to Medicaid managed care in 2012. In June 2013, Dr. Tim Alford, president of the Mississippi Academy of Family Physicians, met with Governor Phil Bryant  and testified before a state House committee. Dr. Alford called the managed care program “wildly unpopular” and stated that it was disruptive to the physician-patient relationship.

KanCare has been operational about six months now. So far, there have been few complaints. However, owners of small pharmacies say that the MCOs’ maximum allowable cost formula for some prescription drugs doesn’t cover their costs.

Now Alabama is beginning the latest adventure in Medicaid managed care contracting.


Optometrists vs. Ophthalmologists in Pennsylvania: Who Can Do What?

A new piece of legislation in Pennsylvania is causing friction between optometrists and ophthalmologists by attempting to limit the scope of practice for optometrists. Their roles often confused, optometrists are referred to as “doctors of optometry,” despite the fact that they do not possess a doctor of medicine degree, but four-year degrees. Optometrists commonly perform vision examinations and write prescriptions for contacts and eyeglasses. On the other hand, ophthalmologists are eye surgeons who possess a medical degree and have completed a one year internship and a three year residency. The current law on the Pennsylvania books was enacted over 30 years ago and states that the practice of optometry shall not include surgery, use of a laser, or injections to treat ocular disease.

However, as medicine has evolved, some other states have begun to include more treatments within the definition of optometry. Most recently, Kentucky has amended laws to permit optometrists to perform laser eye procedures and cosmetic work around the eyes. Supporters of the legislation argued that such expansion was essential to ensuring the availability of treatment for patients in the state where there are four optometrists for every single ophthalmologist. Other states, such as Nebraska, Texas, and South Carolina, are evaluating similar legislation.

The Pennsylvania legislation, House Bill 838, is the opposite of the Kentucky bill as it seeks to limit “palliative, therapeutic, rehabilitative [or] cosmetic [procedures] for conditions or disease processes involving the eye…utilizing lasers, cautery, ionizing or nonionizing radiation, scalpels, probes, needles or other instruments in which the human eye…is cut, drained, penetrated” to the practice of ophthalmologists only.

 Advocates of the bill contend that a medical school education and subsequent internship is essential to delivering safe eye surgery to patients and handling any systemic complications that may arise. One supporting ophthalmologist, Kenneth Cheng, stated that while “there are eye procedures that are easier and faster than they were years ago, citizens of Pennsylvania expect that anyone performing surgery on the eye, including laser surgery, has gone to medical school.”

Opponents of the bill, which include the American Optometric Society (AOS) and the Pennsylvania Optometric Association (POA), see the legislation as a “direct frontal attack” on the practice of optometry. The POA has declared the bill “unnecessary and redundant” and claims that the current law in place already bars optometrists from performing surgery. What some see as a defense against the expansion of the practice of optometry others see as a restriction that may technically bar more than just surgery. According to the AOS, the bill specifically lists the  technologies that may be used in the practice of optometry and requires legislative approval for the use of any future technologies or changes in care standards. The Pennsylvania Academy of Ophthalmology counters that the bill simply removes ambiguity from the original statute and does not narrow the current scope of the practice of optometry.

The bill was widely approved by the Pennsylvania House last summer and is awaiting action by the state Senate’s Professional Licensure Committee.