COVID-19: The Impact on State Medicaid

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Original story posted on: April 22, 2020

Your governor is now in charge of when you go back to work.

Now would be a good time to comment on President Trump’s recent announcement of reliance on state’s rights, and how his recent stance may impact your state’s Medicaid program.

Have you ever wondered: seriously, what is the difference between Medicaid and Medicare, apart from the fact that they serve different demographics, and that one is federally managed and one is state-managed? State’s rights have not been much of a forefront issue since the era of slavery. We have slowly and unconsciously become more “federalized” over time. It is unprecedented for a sitting President to openly delegate immense decisions to governors instead of tackling an issue of this magnitude on a national level. At least, not since President Lincoln was in office.

If you have been following the news lately, then you know that President Trump has announced that he is going to have the workforce re-enter the “real world,” if you will, in stages. He is going to rely on the U.S. Constitution. Well, what this means is that governors will dictate when you are allowed to re-enter the workforce. Is that good or bad? I have no idea. We will see.

Is he really going to let the governors make such a huge decision? We all know how President Trump is a confident man – that’s what makes him so polarizing for so many people. People either love him or hate him.

Regardless of your political affiliation, your governor is now in charge of you going back to work – because of state’s rights. How do state’s rights affect Medicaid? It differs on a state-by-state basis. But as a nation, we can watch for changes. For example, home health is a voluntary Medicaid program, and a great example of how Medicaid can be affected by state’s rights and COVID-19.

As one of our most necessary medical services, home health is compensated by Medicaid and is a voluntary service. In other words, a state could legally decide whether to pull home health altogether. Public outcry aside, legally, your state could pull home health from the Medicaid program to save money if your particular state has budgetary problems. Home health is a voluntary program. This is why home health providers feel like they have no say in how low the Medicaid reimbursement rates are: because the state could say, well, we cannot afford it.

As we all know, home health is very reliant on Medicaid. (Just as Medicaid recipients are reliant on home health – and thank goodness for those home health workers who are still working, even with the elevated risk of COVID-19. These are some of our frontline defenders). Home health is reimbursed by Medicaid, and is covered in one form or another by all 50 states.

Regardless of the politics, Medicaid covers home health, even though it is considered a voluntary program.

Want to read your state’s rules on home health, while we are all quarantined?

You would start by reviewing your state’s Medicaid state plan. I know that is a redundant name, but that’s what it is called.

Google it: “(State) State Medicaid Plan,” or “(State) State Medicaid Waiver.”

It is a public document. Home health can also be offered through an Home and Community-Based Services (HCBS) waiver, if your state so chooses. These waivers are your state’s “electives.”

I cannot get into much more detail here. But do some research. You will be surprised what you find.

In addition to your state’s Medicaid plan and its electives, there are other state plan options that states can opt to implement. Other options include:

  • The Community First Choice (CFC) option – made available by the Patient Protection and Affordable Care Act.
  • Section 1915(i) HCBS State Plan Option.

CFC allows states to offer in-home, personal attendant services to assist with consumers’ activities of daily living (ADLs) and instrumental activities of daily living (IADLs). Examples include help with dressing, ambulation, using the restroom, eating, and light housecleaning for people who would otherwise require placement in nursing homes. At the time of this writing, 11 states have implemented, or are in the process of implementing, the CFC option. These states are Alaska, California, Connecticut, Maryland, Montana, Nevada, New York, North Carolina, Oregon, Washington, and Texas.

The section 1915(i) HCBS state plan option allows persons to receive in-home care assistance, including skilled nursing services, respite care, and home modifications. States have flexibility to target HCBS to certain populations. All states serve people with intellectual or developmental disabilities (I/DD), seniors, and adults with physical disabilities through HCBS waivers, while fewer states offer waivers for people with traumatic brain or spinal cord injuries (TBI/SCI), children who are medically fragile, people with mental illness, and those with HIV/AIDS. People with mental illness and those with I/DD are the populations most commonly served under Section 1915 (i) programs, which provide HCBS to people with functional needs below an institutional level of care.

With this option, persons are not required to demonstrate a need for a nursing home level of care. States can also choose to limit the services to certain populations who are at risk of institutionalization, such as persons with Alzheimer’s disease or frail, elderly adults.

For the above-listed programs that are part of a state’s regular Medicaid program, there is no waitlist. This is because original Medicaid is a government benefit, and all persons who meet the eligibility requirements will receive benefits.

The waiting list enrollment totals nearly 820,000 people nationally, with an average wait time of 39 months. All individuals on waiting lists ultimately may not be eligible for waiver services. Notably, the eight states that do not screen for waiver eligibility before placing an individual on a waiting list comprise 61 percent of the total waiting list population. With the onslaught of COVID-19, expect those wait periods to increase.

For more key state policy choices about Medicaid Home and Community-Based Services, please start your research how I described above. You may find yourself down a rabbit hole of exceptions and state intricacies that you never knew existed!

Programming Note: Listen to healthcare attorney Knicole Emanuel on Monitor Mondays, 10-10:30 a.m. EST.

Knicole C. Emanuel Esq.

For more than 20 years, Knicole has maintained a health care litigation practice, concentrating on Medicare and Medicaid litigation, health care regulatory compliance, administrative law and regulatory law. Knicole has tried over 2,000 administrative cases in over 30 states and has appeared before multiple states’ medical boards.  She has successfully obtained federal injunctions in numerous states, which allowed health care providers to remain in business despite the state or federal laws allegations of health care fraud, abhorrent billings, and data mining.  Across the country, Knicole frequently lectures on health care law, the impact of the Affordable Care Act and regulatory compliance for providers, including physicians, home health and hospice, dentists, chiropractors, hospitals and durable medical equipment providers. Knicole is partner at Practus, LLP and a member of the RACmonitor editorial board and a popular panelist on Monitor Monday.

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