Filed under: Health Law, Health Reform, Medicaid
Professor Jacobi writes:
GOVERNOR CHRISTIE’S decision to expand Medicaid coverage to more residents will improve the health of many low-income New Jerseyans, and save the lives of some. In addition, the expansion dovetails with other reform efforts in the state, furthering implementation of innovative programs for the poor and vulnerable.
The governor’s announcement is great news for low-income individuals. The Rutgers Center for State Health Policy estimates that the expansion will lead to an enrollment increase of about 234,000 in NJ FamilyCare, which combines New Jersey’s Medicaid and Children’s Health Insurance Program.
The expansion addresses gaps in the current Medicaid system, under which many poor people were ineligible even if they had absolutely no income or assets.
The expansion will plug those gaps, allowing people to enroll so long as they are lawful residents with an income of no more than about $15,414 per year, which is about the gross income of a full-time minimum wage worker.
Health insurance coverage is important to personal health, and it is simply not true that all Americans have meaningful access to health care. As the Institute of Medicine of the National Academy of Sciences has found, people who have health insurance — including Medicaid — have better access to a regular source of health care. Those with no coverage, in contrast, are more likely to do without medically necessary care, particularly for chronic conditions, and to not fill prescriptions due to cost.
As a consequence, the uninsured are more likely to be in “fair” or “poor” health — and to die before their time. Medicaid expansion will keep people healthy and even save lives.
Read the full feature, “How Medicaid expansion will help New Jerseyans”
Seton Hall Law & NYLPI Release Report Documenting Hundreds of Cases of Coerced Medical Repatriation by U.S. Hospitals
Medical repatriations of undocumented immigrants likely to rise as result of federal funding reductions to safety net hospitals under Affordable Care Act
New York, NY, and Newark, New Jersey, December 17, 2012 –Today, the Center for Social Justice (CSJ) at Seton Hall University School of Law and New York Lawyers for the Public Interest (NYLPI) released a report documenting an alarming number of cases in which U.S. hospitals have forcibly repatriated vulnerable undocumented patients, who are ineligible for public insurance as a result of their immigration status, in an effort to cut costs. This practice is inherently risky and often results in significant deterioration of a patient’s health, or even death. The report asserts that such actions are in violation of basic human rights, in particular the right to due process and the right to life.
According to the report, the U.S. is responsible for this situation by failing to appropriately reform immigration and health care laws and protect those within its borders from human rights abuses. The report argues that medical deportations will likely increase as safety net hospitals, which provide the majority of care to undocumented and un- or underinsured patients, encounter tremendous financial pressure resulting from dramatic funding cutbacks under the Affordable Care Act.
The report cites more than 800 cases of attempted or actual medical deportations across the country in recent years, including: a nineteen-year-old girl who died shortly after being wheeled out of a hospital back entrance typically used for garbage disposal and transferred to Mexico; a car accident victim who died shortly after being left on the tarmac at an airport in Guatemala; and a young man with catastrophic brain injury who remains bed-ridden and suffering from constant seizures after being forcibly deported to his elderly mother’s hilltop home in Guatemala.
According to Lori A. Nessel, a Professor at Seton Hall University School of Law and Director of the School’s Center for Social Justice, “When immigrants are in need of ongoing medical care, they find themselves at the crossroads of two systems that are in dire need of reform—health care and immigration law. Aside from emergency care, hospitals are not reimbursed by the government for providing ongoing treatment for uninsured immigrant patients. Therefore, many hospitals are engaging in de facto deportations of immigrant patients without any governmental oversight or accountability. This type of situation is ripe for abuse.”
“Any efforts at comprehensive immigration reform must take into account the reality that there are millions of immigrants with long-standing ties to this country who are not eligible for health insurance. Because health reform has excluded these immigrants from its reach, they remain uninsured and at a heightened risk of medical deportation,” added Shena Elrington, Director of the Health Justice Program at NYLPI. “Absent legislative or regulatory change, the number of forced or coerced medical repatriations is likely to grow as hospitals face mounting financial pressures and reduced Charity Care and federal contributions.”
Rachel Lopez, an Assistant Clinical Professor with CSJ stated, “The U.S. is bound to protect immigrants’ rights to due process under both international law and the U.S. Constitution. Hospitals are becoming immigration agents and taking matters into their own hands. It is incumbent on the government to stop the disturbing practice of medical deportation and to ensure that all persons within the country are treated with basic dignity.”
More information about this issue can be found at medicalrepatriation.wordpress.com, a NYLPI- and CSJ-run website that monitors news and advocacy developments on the topic of medical deportation.
About New York Lawyers for the Public Interest
New York Lawyers for the Public Interest (NYLPI) advances equality and civil rights, with a focus on health justice, disability rights and environmental justice, through the power of community lawyering and partnerships with the private bar. Through community lawyering, NYLPI puts its legal, policy and community organizing expertise at the service of New York City communities and individuals.
About the Center for Social Justice at Seton Hall University School of Law
The Center for Social Justice (CSJ) is one of the nation’s strongest pro bono and clinical programs, empowering students to gain critical, hands-on experience by providing pro bono legal services for economically disadvantaged residents in the region. The cases on which students work span the range from the local to global. Providing educational equity for urban students, litigating on behalf of the victims of real estate fraud, protecting the human rights of immigrants, and obtaining asylum for those fleeing persecution are just some of the issues that CSJ faculty and students team up to address.
John Roberts’ jurisprudential wizardry in NFIB has been compared with the artistic genius of pro wrestlers and rappers. Poor Americans in states newly empowered to resist the ACA’s Medicaid expansion may need even more ingenuity to get themselves insured. Both Kevin Outterson and my colleague John Jacobi have observed the perplexing predicament imposed on the poor in states that keep Medicaid 1.0, and resist Medicaid 2.0. From Jacobi’s post:
The reform provides insurance subsidies through tax credits. The credits are calculated on a sliding scale, according to household level, for people with income up to 400% of FPL [the federal poverty line] — subsidizing more generously someone earning 200% of FPL, for example, than someone earning 350% of FPL. But, under 26 USC 36B(c)(1), credits will not be distributed to those with incomes below 100% of the FPL. Why? Because Congress assumed states would take up the Medicaid expansion, obviating the need for exchange-based subsidies for the very poor. . . .Bottom line: states rejecting Medicaid 2.0 will not only forego about 93% federal funding for the program between 2014 and 2022, but they could also be depriving the poorest of the uninsured from any shot at coverage — potentially affecting millions nation-wide.
Georgia hospitals are already worried about the “unexpected prospect of lower reimbursements without the expanded pool of patients” to be covered by the Medicaid expansion:
Last year, Georgia hospitals lost an estimated $1.5 billion caring for people without insurance. The promise of fewer uninsured is what led the national hospital industry to agree to the health law’s $155 billion in Medicare and Medicaid cuts over a 10 year period. The Medicaid curveball comes at a time when Georgia hospitals are already in the throes of a massive industry transformation to improve quality and efficiency driven by market forces as well as the new law. Hospitals face lower payments from insurers and pressures to consolidate. One in three Georgia hospitals lose money. All are busy preparing for new standards under the law that, if not met, could mean millions of dollars in penalties.
It’s hard to imagine how hospitals like Grady can continue to act as a safety net in that environment. The article notes that “Georgians already pay for the cost of care provided to people without insurance through higher hospital bills and inflated insurance premiums.” If that trend continues, all the states refusing Medicaid 2.0 may end up doing is shifting the cost of the Medicaid expansion population from national taxpayers to Georgians with insurance. The superwealthy Americans of Marin County and Manhattan ought to send Georgia Governor Nathan Deal a thank you note for keeping Georgians’ problems for Georgians themselves to solve.
I recently wrote about the plight of poor adults in states that reject “Medicaid 2.0″ — that is, the expansions of Medicaid contained in the ACA. Just to recap, the Supreme Court upheld the constitutionality of the expansions, but held that Medicaid’s historical power to enforce state uniformity — sanctioning states up to and including the withdrawal of some or all of their federal funding — could not be used to require states to adopt the ACA expansions. Thus, Medicaid was conceptually split between Medicaid 1.0 (existing Medicaid) and Medicaid 2.0 (ACA expansion Medicaid), and a state could not lose Medicaid 1.0 funding if it declined to participate in Medicaid 2.0 funding. Several governors have expressed the intent to refuse to participate in Medicaid 2.0.
My previous post highlighted Kevin Outterson’s observation of an under-appreciated effect of a state’s refusal to participate in Medicaid 2.0. Of course, people living below the poverty level who were ineligible for Medicaid 1.0 will be shut out of Medicaid in refusing states. But they’re also ineligible for any subsidies to purchase coverage under the exchanges. Why? Because Congress assumed that states would participate in Medicaid 2.0, and didn’t provide seemingly redundant subsidies. These poor residents of refusing states will fall into a Medicaid donut hole — ineligible for Medicaid, but shut out of exchange-based subsidies.
Secretary Sebelius, in a letter dated July 10, implicitly acknowledged this problem. After reiterating previous offers to work with states flexibly in health reform matters, and expressing hope that states would take up the federal funds available for Medicaid expansion, she addressed a donut hole question: would poor residents in refusing states be subject to a triple whammy of (1) no access to Medicaid; (2) no access to subsidies for coverage through the exchanges; and (3) penalties for not having qualifying coverage? Sebelius couldn’t offer much on the first two — refusing states won’t offer Medicaid coverage to many of their poor residents who would be eligible for Medicaid 2.0, and subsidies are simply not available (for reasons I explained in my previous post) for persons living below poverty. But on the third, she promised that the very poor uninsured would at least escape sanction for noncompliance with the ACA’s individual responsibility provision: Sebelius assured the governors that she would use her authority to provide a “hardship exemption” from penalties for these uninsured folks where needed. That may be snow in January for these disenfranchised folks, but those seem to be the tools left to Sebelius.
It’s go time, New Jersey. Now that the Supreme Court has upheld the Affordable Care Act, New Jersey has to reignite efforts to implement health reform — or else the Federal government will step in to fill the gaps.
If New Jersey wishes to operate a state-based exchange (or to participate in a state partnership exchange) beginning in January 2014 (and avoid having HHS establish a federally-facilitated exchange in the State), it must submit a complete Exchange Blueprint no later than November 16, 2012. HHS then must approve or conditionally approve the State’s blueprint by January 1, 2013. See 45 C.F.R. § 155.105.
New Jersey’s Legislature passed Assembly Bill 2171 on March 15, 2012, which proposed creation of an exchange. But Governor Christie vetoed this bill in May, stating that it would be “imprudent . . . to create an exchange” until the Supreme Court rules on the constitutionality of the ACA. (He also identified substantive provisions of the bill that concerned him, such as the proposal to pay compensation of $50,000 to each exchange board member and to limit membership to those not directly involved in the healthcare industry.)
Although the Governor could bypass the legislature by issuing an executive order establishing an exchange, Professor John Jacobi recently pointed out that Christie is limited in what he can accomplish on his own:
“There are some things he could do to get [an exchange] up and running, but New Jersey cannot spend money by executive order,” Jacobi said. Nor can Christie change state law without the Legislature, and that is what would be required if the two struggling and highly expensive state-run insurance programs, for small employers and individuals, are folded into the exchange, he said.
Given that Christie long has vowed not to let the federal government run an exchange in New Jersey and recently committed to complying with any deadlines imposed on States with respect to health care implementation, New Jersey’s legislative and executive branches should be able to work together to craft an exchange bill that will pass both houses and gain Christie’s signature. Indeed, Sen. Joseph Vitale (D-Middlesex), chair of the Senate Health, Human Services and Senior Services Committee, reportedly has committed to working with Christie’s administration to draft a new bill that the Governor can support. Enacting legal authority for the exchange is also among the requirements for the State to apply for a Level 2 Exchange Establishment grant. (HHS announced last week that it was adding ten additional opportunities for States to apply for exchange establishment funding.)
New Jersey also needs to turn its attention to the requirement in the ACA that non-grandfathered individual and small group plans both inside and outside of the exchanges offer essential health benefits (EHB). Although Section 1302 of the ACA requires the Secretary of HHS to define EHB (as long as EHB includes at least ten general categories itemized in the statute), HHS issued a bulletin in December 2011 indicating its intention to grant each State the flexibility to select a benchmark from certain existing health plans identified by HHS. HHS plans to require States to identify the selected benchmark plan for 2014 and 2015 in the third quarter of 2012 (that is, by September 30, 2012). If New Jersey does not designate a benchmark plan, HHS has said that the largest plan by enrollment in the largest product in the State’s small group market will be the default benchmark plan.
As I’ve previously blogged, HHS’s bulletin on EHB and subsequent FAQ leave many questions unanswered. New Jersey needs to evaluate the potential benchmarks identified by HHS and choose which to designate, which will demand careful attention to whether the benchmark plans include all of the ten categories required by the ACA and, if not, how the State will supplement the benchmarks to comply with federal requirements. Critical to this process is balancing the desire for comprehensive benefits with the need to keep premiums affordable.
New Jersey also needs to compare the potential benchmark plans with New Jersey’s insurance mandates. Section 1311(d)(3)(B) of the ACA requires States to defray the costs of State-mandated benefits in excess of EHB. For 2014 and 2015, however, HHS intends to create a transition period during which “if a State chooses a benchmark subject to State mandates -; such as a small group market plan — that benchmark would include those mandates in the State EHB package.” But if a State chooses a benchmark that does not include all of the State’s mandates, such as the Federal Employees Health Benefits Program, the State will be responsible for the costs of those mandates. HHS has indicated that it may exclude some State benefit mandates from State EHB packages for 2016 and beyond. New Jersey thus needs to evaluate the degree to which its mandates come within the EHB benchmark it selects.
Clearly, there is work to be done, but there is time, if used wisely.