Massachusetts Law Reform Institute
99 Chauncy Street, Suite 500, Boston, MA 02111-1703
phone 617-357-0700 # fax 617-357-0777 # www.mlri.org
February 1, 2008
Commonwealth Health Insurance Connector Authority
Attn: Jamie Katz: Public Comments
100 City Hall Plaza, 6th Floor
Boston, MA 02108
Comments on 956 CMR 3.00
Amendments to Eligibility and Hearing Process for Commonwealth Care
Dear Mr. Katz,
These comments are submitted by the Massachusetts Law Reform Institute, a non-profit legal services organizations representing the interests of low-income residents of the Commonwealth. We appreciate the work of the Connector staff and board in struggling to reach the right decisions on the many complex policy issues reflected in these regulations and the opportunity to make these comments. We endorse the testimony and comments submitted by the Affordable Care Today Coalition (ACT!!). In addition, we submit these comments addressing more specifically the interests of our low income clients and raising more technical points for your consideration.
Section 3.01 Definitions
Incorporate the MassHealth regulations defining PRUCOL
Resident. Amend the definition to add the phrase “as defined by the office of Medicaid by regulation” after the phrase “otherwise permanently residing in the United States under color of law.” Currently, the definition of resident incorporates the Office of Medicaid definition only for determining who is living in the Commonwealth. The Office of Medicaid has separate regulations for determining who lives in the state and who has an eligible immigration status. The 3.00 regulations should incorporate the relevant Office of Medicaid regulations at 504.002(D) (aliens with special status/PRUCOL) as well as 503.002 (residence requirements).
Section 3.05 Eligibility for Commonwealth Care.
Clarify which MassHealth standards apply to CommCare
Section 3.05(2). The revised regulations provide that the Office of Medicaid will use “substantially the same methods used for MassHealth” to determine individual or family household income level. However, the Office of Medicaid eligibility determination for Commonwealth Care includes more than financial eligibility, it also includes a determination of residence and immigration status. In order for the applicable rules to be clear, particularly when an eligibility determination is appealed, the 3.05 regulations must make a more specific reference to which Office of Medicaid rules apply to CommCare eligibility determinations. We suggest the following language:
The Office of Medicaid shall use the same standards and methodology used for MassHealth programs in determining and verifying countable income, residence, and status as a qualified alien or alien otherwise permanently residing in the United States under color of law.
Allow flexibility to adjust FPL earlier than April 1
Section 3.05(4). The regulation states that the Connector adjusts the FPL standards on April 1. In recent years the federal government has reliably published the new FPL standards in January and we have been urging the Office of Medicaid to adjust its FPL standards earlier than April 1. Therefore, we suggest that you leave open the possibility of an earlier adjustment date by adding to the phrase “in April of each calendar year” the following phrase: “or such earlier date as determined by the Office of Medicaid for MassHealth programs.
Do not lengthen the time allowed for eligibility determinations & do provide a remedy for untimely decisions
Section 3.07 Time Standards for an Eligibility Determination
In their December 7, 2007 Memo to the Board, Connector staff identify this change in time standards as related to the “enhancement” of the eligibility determination process needed to determine whether an applicant is uninsured. As we understand this “enhancement,” individuals will not be asked to supply all information needed to determine eligibility in the application form itself but only through later requests for information made after a completed application is returned by an applicant. Thus the amended time standard allows 45 days from the date all post-completed application requests for information are returned.
This delay in the eligibility determination process means individuals applying for CommCare will be uninsured for a longer period of time before CommCare coverage begins. For applicants this means a double whammy of being without a means to pay for necessary care and potential tax penalties for violating the individual mandate. These harms are in turn compounded by the Connector’s policy of not enrolling applicants back to the date of application or even the date of an initial erroneous eligibility denial, and the Health Safety Net policy of requiring a determination on CommCare eligibility before time-limited HSN eligibility is determined.
Rather than amending time standards to allow for slower decisions, the Connector should make the identification of other sources of subsidized insurance a back-end process. In other words, initial eligibility for CommCare should not be delayed because of potential eligibility for the Fishing Partnership, for example. However, CommCare members may be subject to loss of benefits after eligibility for the Fishing Partnership or another source of coverage is identified and verified.
The 45-day time standard is required by law. Federal Medicaid regulations allow for 45 days from the date of application to the date the agency mails its notice of decision except in unusual circumstances. 42 CFR 435.911. MassHealth regulations allow 45 days from the receipt of a completed application. 130 CMR 502.005 45. The terms and conditions governing the § 1115 Demonstration project governing CommCare provide that “The provision of Title XIX [the Medicaid Act] shall apply to populations or benefits authorized under the Expenditure Authority in the same manner as to populations under the State plan, except as specified below.” Nothing in the terms and conditions purports to exempt the state from processing applications in accordance with Medicaid timeliness standards.
Section 3.07 should return to its original form before amendment. Further, additional standards are required to assure timely determinations of eligibility. Applicants for CommCare should be assured not just a timely determination of potential coverage after they enroll, but of all information needed to enable them to enroll. This includes time standards for receiving information about enrollment options, and for coverage to begin after selection of a plan and payment of any premium charge due. When the Connector is unable to adhere to these time standards, the applicant should be able to obtain enrollment retroactive to the date of a timely determination.
Section 3.09 Eligibility Requirements
It is a good idea to place all eligibility criteria in one section of the regulations.
Clarify that the employer-subsidized insurance exclusion applies only to current employers
G.L. c. 118H § 3 (a)(4) makes it a criterion for eligibility that “the individual or family member’s employer has not provided health insurance coverage in the last 6 months for which the individual is eligible.” It is clear from the use of the present tense that the statute refers to the applicant’s or family member’s current employer. It will be helpful to clarify this in the §3.09(1)(c) by inserting the word “current” before the word “employer.”
Include the criteria and process for obtaining a waiver of the employer-subsidized insurance exclusion.
The eligibility criteria in §3.09(1)(c) refer to the waiver provision in G.L. c. 118 H § 3(b) (amended by c. 324, § 27 of the Acts of 2006), but include neither criteria for the waiver nor any process for requesting a waiver. While the statutory authorization to the Connector to waive the employer-subsidized insurance exclusion uses permissive language, this does not allow the Connector the discretion to have no waiver process at all. Rather the courts have said such language requires an agency to act upon each application, but gives the agency considerable discretion in deciding whether a particular application should be granted. See, e.g., Turnpike Amusement Park, Inc. v. Licensing Commission of Cambridge,343 Mass. 435, 179 N.E.2d 322 (Mass., 1962); Attleboro Trust Co. v. Commissioner of Corps. & Taxation of City of Boston, 257 Mass. 43, 153 N.E. 333 (Mass. 1926). Thus, the statute requires the Connector to create some process whereby rejected applicants may request a waiver and have their request given fair consideration.
In determining what criteria are appropriate, the Connector must strike a balance between offering insurance to those low-income workers who cannot afford employer-sponsored insurance and not encouraging employees or employers to drop existing coverage. Initially the Connector may want to be cautious in adopting waiver criteria. We suggest the following factors for an initial standard be added to § 3.09 :
o A waiver may be granted pursuant to G.L. c. 118H §3(b) if -
o The employee’s gross family income does not exceed 200 percent of poverty (thus making the employee eligible for “full” free care from the uncompensated care pool);
o The employee’s premium contribution exceeds the Connector’s affordability standard; or
o The employee’s premium contribution combined with out of pocket costs for uncovered services and cost-sharing in the employer-subsidized plan would exceed 7.5 percent of the employee’s gross income; and
o The employer agrees to contribute its share of the employer-offered premium cost to the Connector.
Clarify references to other types of insurance
Subsection 3.09(2) We suggest the confusing term “state-authorized” insurance programs be either defined or omitted, and that following the reference to “certain government-funded or state authorized insurance programs” be added the phrase “that cover hospitalization and physician services.” The purpose of adding this phrase is to exclude specialized insurance programs that only cover a single service such as the Prescription Advantage pharmacy insurance program. Also, in § 3.09(2) (b) add at the end of the last sentence: “other than employer sponsored insurance for which the employer contributes less than 20 percent of the premium cost for family coverage.” Addition of this phrase is necessary to comply with the statutory definition of “eligible individual.”
Subsection 3.09(3) The non-group and small group markets have been merged, therefore the reference in (a) should be to non-group coverage.
Section 3.10 Responsibilities of Applicants and Enrollees
Clarify that MassHealth estate recovery rules do not apply to Commonwealth Care
MassHealth regulations authorize estate recovery for medical services for individuals age 55 or older, and the medical benefit request form discloses this potential future liability. Obviously, estate recovery is not appropriate in an insurance-based program like Commonwealth Care with significant premiums and copayments and limited coverage of long term care. However, confusion persists, particularly in the Western part of the state, about estate recovery and Commonwealth Care. This section of the regulations would be a good place to state that there is no estate recovery in Commonwealth Care.
Include regulations defining the rights of applicants/enrollees in addition to their responsibilities
Applicants and enrollees have responsibilities but they also have rights. The regulations should include a section identifying the rights of enrollees. In the MassHealth regulations, the rights of applicants and enrollees are set out in 130 CMR § 501.009. All of the rights set out in the MassHealth regulations are equally applicable to Commonwealth Care, including the right to timely determinations. Because Commonwealth Care separates eligibility determination from enrollment, there should also be a right to timely receipt of enrollment information and timely enrollment after an applicant has supplied all information and any payment necessary to enroll. The time standards should be included in Section 3.07 as discussed above.
3.11 Premium Contributions
Provide more convenient payment methods including § 125 payroll deductions
Subsection (1) If there is to be only one convenient payment method, no need to state the number in regulations. But whatever happened to additional convenient payment methods? Particularly the option to pay CommCare premiums through payroll deductions under an employer’s § 125 plan?
Comply with federal requirements that aid continue pending appeal
Subsection (2) Delinquent Premium Payments.
The regulations should add a fourth instance of when eligibility should not be terminated and that is if the enrollee files an appeal before the effective date of the termination (the date of action). This is required by federal Medicaid law applicable to the § 1115 Demonstration. “If …the recipient requests a hearing before the date of action, the agency may not terminate or reduce services until a decision is rendered after a hearing....” 42 CFR § 431.220 (Maintaining services). See also, 42 CFR § 431.221 (Reinstating services). In MassHealth regulations comparable provisions are at 130 CMR § 610.036.
When a recipient appeals a termination for nonpayment of premiums, he or she is entitled to the benefit of the doubt until a hearing decision is made. There are any number of factual disputes that may underlie such an appeal. For example, the individual may be asserting that he made the payments that the Connector claims not to have received, or that he or she is being charged the premium rate for an MCO other than the one in which he or she is enrolled, or that the Office of Medicaid failed to lower his premium after being notified of a decrease in his income.
Clarify that past due premiums may be waived
Subsection (3) Reactivating coverage following disenrollment
The Administrative Bulletin provides that a hardship waiver can waive past due premiums. This makes sense since many people will be requesting a waiver only after they have already fallen into arrears. The reference to the ways a disenrolled individual can re-establish eligibility should add “or be granted a hardship waiver for past due premium payments.”
Improve the criteria for extreme financial hardship
Subsection (5) Waiver or Reduction of Enrollee premium contribution for Extreme Financial Hardship
Last summer the ACT!! Coalition wrote to the Connector with suggested improvements in the standards for determining a hardship waiver. We endorse those recommendations and urge you to amend the standards accordingly in this rule-making proceeding. The hardship standards in (5)(a)should be amended in the following ways:
· The financial hardship premium waiver should be a prospective waiver for avoiding financial hardship. A waiver request should be approved if the addition of premiums to current expenses would cause a financial hardship to an individual or a family.
· Financial hardship should be found where the enrollee has shown that the enrollee needs substantially all of his/her current income to meet ordinary and necessary living expenses including food, housing, clothing, medical debt, and essential transportation.