The chair of the health policy department at George Washington University has warned of the potential “spill-over” effect into other state programs run with federal funds if the Supreme Court interprets too widely the Administration-backed policy paper on Medicaid submitted May 26.
So who would be hurt if this happens, and everybody in state “safety net” programs loses their federal rights?
* Around 25 million children will be affected. While non-disabled children account for 49% of Medicaid enrollment, spending accounts for only about 20% of the total Medicaid budget.
* Disabled children and adults, blind adults and senior citizens total about 9 million recipients, or 18% of the total. Budget-wise, however, they account for two-thirds of all Medicaid spending.
How will we ever be able to keep our loved ones at home with us if state bureaucrats and Medicaid insurance companies can cut their services with impunity? These are our children, our siblings and our parents that we are trying so hard to keep home with us and not locked up in institutions.
Who will protect, let alone enforce, the federal rights of this population of 35 million Americans?
It can’t be CMS – the Centers for Medicare & Medicaid Services – and they are the arm of HHS responsible for oversight of state adherence to federal Medicaid regulations. A parent in Hawaii, whose daughter’s life has been endangered by cuts in her home nursing services, was told the following:
While filing a complaint directly with CMS, the Federal agency responsible for programmatic and fiscal oversight of the Hawaii Medicaid program, provides CMS information regarding the Hawaii program, it does not protect your rights. The only process that federal law recognizes as protecting your rights is filing the an appeal with the managed care organization, in this case Evercare [Unitedhealth].
A corporation that makes its profit by denying medical services has as much interest in protecting our rights as Big Business has in paying higher taxes.
CMS themselves are projecting out to 2019 almost an 11% per year growth in state and federal Medicaid dollars paid to private insurers. Big insurance companies like Unitedhealth and Aetna are getting into Medicaid and Medicare “managed care”, and new corporations focusing just on Medicaid/Medicare are experiencing twenty percent annual growth rates. Between September 30, 2010 and March 31, 2011, Unitedhealth increased its Medicaid membership by only five percent, while quarterly Medicaid revenue (i.e., how much they were paid in capitated payments for managed care services) went up 23%.
This projected trend reflects the assumption that many of the newly eligible Medicaid enrollees in 2014 will be enrolled in Medicaid managed care plans, as has been true of currently enrolled children and adults. Capitation payments are projected to remain as the fastest-growing category of services in Medicaid over the next 10 years.
The companies winning all these new contracts are responsible to shareholders, not policyholders, even if the premium is paid by the federal government. Profit is measured by how much out of each premium is not spent, and it’s called the Medical Loss Ratio (MLR – percentage of the capitation payment actually spent on medical expenses for the individual).
Companies strive to keep these MLRs as low as possible, and they have trended below 80%. However, the reliability of these reported MLRs has been called into question. Recent criminal Medicaid fraud investigations that resulted in refunds demanded from Wellcare, Unitedhealth, Humana and Amerigroup suggest these figures could be severely inflated. Actual MLRs on a children’s Medicaid program were discovered as low as 49%.
Even with the protections we have under federal Supremacy (federal law is the law of the land) now, companies that have been caught stealing money from newborn babies and children with disabilities are being handed additional contracts, for Medicare as well as Medicaid.
According to the National Senior Citizen Law Center, the brief, which was submitted against the wishes of HHS Secretary Kathleen Sebelius and with President Obama’s support, “contradicts the law as applied for decades, in scores of cases, by the Supreme Court and the lower federal courts.” Simon Lazarus, Public Policy Counsel to NSCLC, concludes in his legal analysis of the brief:
The brief charts a path for the Supreme Court to permit federal courts to continue routinely to apply federal supremacy to strike down state laws protecting consumers, workers, retirees, bank depositors and others, alleged by business litigants to conflict with federal laws, while arbitrarily withholding identical protection from the vulnerable populations served by Medicaid and other safety net laws.
If we allow this brief to become policy, we could lose any effective means to challenge the medical decisions these for-profit Medicaid companies will be making about our loved ones.
Please sign our petition here to have the Administration withdraw this dangerous brief from the Supreme Court.
