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Spring 2011 Implementing Health Reform at the State Level: Access and Care for Vulnerable Populations John V. Jacobi Seton Hall Law School
Sidney D. Watson Saint Louis University School of Law Center for Health Law Studies
Robert Restuccia Boston University School of Public Health
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Recommended Citation John V. Jacobi, Sidney D. Watson, & Robert Restuccia (2011). Implementing Health Reform at the State Level: Access and Care for Vulnerable Populations. Journal of Law, Medicine & Ethics, pp. 69-72.
This Article is brought to you for free and open access by Scholarship Commons. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of Scholarship Commons. For more information, please contact [email protected], [email protected]. Implementing Health Reform at the State Level: Access and Care for Vulnerable Populations John V. Jacobi, Sidney D. Watson, and Robert Restuccia
Introduction article is focused on five key implementation issues The Affordable Care Act1 (ACA) promises to improve states face as they turn to new tasks in the governance access to coverage and care for two vulnerable groups: of Medicaid and private non-group and small group low-income persons who are excluded by a lack of coverage. The Medicaid reforms and the extension resources and chronically ill and disabled people who of private coverage through Exchanges raise separate are excluded by the dysfunction of our existing insur- challenges. However, as described here, many key ance and care delivery systems. ACA’s sprawling provi- implementation issues apply to both systems. sions raise a wealth of implementation challenges that are exacerbated by the compromises required to move Five Key Issues Facing the States: reform through Congress. In particular, the compro- Coordinating Public and Private Expansion mise between regulatory/public program advocates Enrollment and Retention and advocates for private, market-driven programs ACA Section 2001 clears away barriers to Medicaid requires thoughtful regulatory coordination between enrollment for non-elderly Americans. It extends eli- public and private health systems. gibility to most people with incomes up to 133 per- The anticipated increase in coverage is roughly split cent of the federal poverty level. It also eliminates the between expansions in Medicaid and private enroll- asset test for most enrollees, a rule that disqualified ment, each of which is projected to cover approxi- those with savings of as little as $1,000 to $3,000.3 It mately 16 million Americans.2 How ACA will be imple- largely does away with confounding “categorical eli- mented has been the subject of constant attention gibility” requirements, simplifying the enrollment of since its enactment, and federal regulators have been low-income people. Sections 1401 and 1402 describe generating program and regulatory information with a system of refundable tax credits and out-of-pocket commendable assiduity. However, state-level reform cost limitations to enable those up to 400 percent of will be crucial to the effectiveness of the ACA imple- the poverty level to afford private coverage offered mentation for low-income and chronically ill people. through the Exchanges. This two-part structure mar- Federal structural regulations will be implemented ries private and public coverage systems in a way that and interpreted at the state level. As learned from the should allow health insurance access for most people varied implementation of Medicaid and other state/ with existing financial barriers to coverage. federal programs, state efforts can either effectuate or Eligibility does not assure enrollment, however, frustrate the intent of health coverage measures. This as we have learned from experience with Medicaid and the State Children’s Health Insurance Program John V. Jacobi, J.D., is the Dorothea Dix Professor of Health (SCHIP) programs. Many of today’s uninsured chil- Law & Policy at Seton Hall Law School. Sidney D. Watson, dren are eligible for either Medicaid and SCHIP cov- J.D., is a Professor of Law in the Center for Health Studies at Saint Louis University School of Law. Robert Restuccia, erage, but either have never enrolled or lost cover- M.P.A., is the Executive Director of Community Catalyst and age. This failure to enroll and retain eligible children an Adjunct Professor at Boston University School of Public has been attributed in part to needless bureaucratic Health. barriers.4 The lesson is that just creating a system of using law, policy, and research to improve the public’s health • spring 2011 69 JLME SUPPLEMENT coverage is not enough. Good state practices and con- interest of qualified individuals and qualified employ- scientious follow-up on a case-by-case basis are neces- ers.” The Exchanges will base their determinations in sary to get historically disadvantaged people into the part on yearly reports on claims and denial informa- health care system. tion supplied to them by health plans seeking certi- ACA anticipates these problems. Sections 1413 fication.9 The Exchanges will then be empowered to and 2201 require the creation of a “no wrong door” consider the quality of plans’ provider networks, their enrollment system, seamlessly evaluating applicants utilization control experience, and other factors essen- for all public and private options. As Medicaid his- tial to members’ access to care, when making certifi- tory makes clear, this coordination can either be done cation decisions. Determining what entity shall act well or poorly at the state level. Anticipating the need as the Exchange and the operating philosophy of that for community assistance, ACA Section 1311 provides entity will therefore, be an important implementation funding for, and obliges the state creation of, a com- decision for each state. Deciding to treat the Exchange munity “patient navigator” in order to facilitate enroll- as a passive pass-through will frustrate ACA’s reforms. ment and provide community education. Conversely, empowering the Exchanges to enforce market protections will go a long way toward securing Coverage ACA reforms. Research on health systems and bankruptcy has shown that underinsurance can be as significant a problem Workforce Issues for individuals as uninsurance.5 ACA addresses the Even the most progressive state Medicaid offices, content of coverage for classes of new enrollees in pri- Exchanges, and participating plans will be hard- vate insurance and Medicaid. Section 1302 requires pressed to connect enrollees to needed care, unless that private insurance offered through the Exchanges qualified health care providers are available to provide provide listed categories of “essential health benefits.” care. For example, workforce issues have arisen as a Under Section 2001, most newly eligible Medicaid barrier to Massachusetts’s prior health care reform enrollees must receive “benchmark or benchmark- efforts.10 The concern arises from two directions. equivalent” coverage including, at a minimum: (1) the First, physicians and dentists have long been reluctant same essential health benefits that must be offered by to participate in Medicaid, in part due to low reim- private insurers; (2) transportation to and from neces- bursement rates. Second, physicians are increasingly sary medical services; (3) Early and Periodic, Screen- reluctant to forego the benefits of specialty practice to ing, Diagnosis, and Treatment Services for children; pursue primary care practice. ACA Title V addresses and (4) coverage of services provided by federally this concern by including a number of programmatic qualified health centers and rural clinics.6 States may and funding opportunities calculated to increase the opt to provide new Medicaid enrollees with bench- supply of physicians (particularly in primary care), mark coverage that includes additional Medicaid cov- dentists, nurses, and allied health professionals. ered services not typically offered by private insurance, Physicians in training should be encouraged to opt including full Medicaid coverage.7 Forthcoming fed- for primary care careers. However, there is increasing eral regulatory guidance on the scope of the “essential evidence that the barriers to expanding the number of health benefits” will be binding on all private insur- primary care physicians are more complex than pure ance sold through the Exchanges. However, states will monetary concerns; physicians are also concerned play the critical role in determining the benefit pack- with status, lifestyle, and other related issues.11 In addi- age for those newly eligible for Medicaid. tion, there is increasing evidence that non-physicians, including advanced practice nurse practitioners, are Exchanges just as capable in many settings of providing many Exchanges, to be created by the states by 2014, will primary care services as are physicians.12 receive some funding and regulatory oversight from Although ACA’s measures may help, important the federal Department of Health and Human Ser- work ahead involves state laws governing profes- vices (HHS) pursuant to Section 1311. The Exchanges sionals’ scope of practice. These laws may inhibit will, in turn, be important regulators. Although the non-physicians’ and non-dentists’ ability to practice criteria for qualified health plans will be set by HHS, independently to provide essential health services they will be applied by the Exchanges, which may cer- typically provided by physicians and dentists in pri- tify a health plan for participation if it meets federal mary care, particularly for low-income insureds.13 As criteria. The Exchanges must consider each plan’s new insureds seek primary care services, states may justification for its premium history,7 and they must confront a shortage of primary care providers quali- determine whether a plan’s participation is “in the fied to practice under current licensure laws. Recent
70 journal of law, medicine & ethics Jacobi, Watson, and Restuccia work reviewing the performance of advanced practice ration of the terms, but also on state-level oversight of nurse practitioners and dental hygienists suggests that health plans operating through the Exchanges. states should revisit laws limiting the scope of practice of non-physicians and non-dentists. Advocacy in State Implementation States are actively engaged in implementation of early Chronic and Long Term Care aspects of health reform and are collaborating to share ACA’s chronic care reforms recognize the confluence insights and establish best practices.17 Advocates, cli- of many strains of research urging a shift from proce- nicians, citizens’ groups, and engaged individuals have dure-based fragmented care to patient-centered coor- a role to play as states make key decisions described dinated care for people with chronic illnesses and dis- above. Critical functions that states may consider abilities.14 Many of the ACA’s Medicaid provisions are within this process include:18 optional, allowing states to draw down federal funding to improve chronic care capacity — but also allowing • Help to educate the public on the unfolding ben- them to decline to do so. For example, Section 2401 efits of health reform. As provisions of the ACA allows states to establish a program modeled on the take effect, advocates can assist in implementa- Community First Choice program, which has success- tion by ensuring that constituent groups are fully provided community support services for benefi- aware of new opportunities to gain health care ciaries with disabilities (including those with cogni- and coverage. tive disabilities) to permit community living and to • Provide expert analysis. States will be covering avoid institutionalization. Section 2403 continues the new ground as they implement modified forms Money Follows the Person Rebalancing Demonstra- of Medicaid and private coverage. For example, tion, a program that facilitates the deinstitutionaliza- the injection of robust chronic care management tion of people with chronic illness and disabilities by and habilitative care into private insurance could permitting them to use Medicaid resources to obtain be resisted in some cases. Clinical and public needed community support services. Under Section health experts and disability advocates can assist 2703, states can also create “health homes” for peo- in implementation by helping to explain the ple with chronic conditions, allowing for innovative importance of enhanced understanding of health coordinated care delivery for vulnerable populations. insurance coverage. Similarly, as Medicaid pro- In addition, Section 2402 expands the usefulness of grams consider the adoption of new tools to sup- states’ Home and Community Based Services (HCBS) port community care for people at risk of institu- programs significantly. Among other changes, it per- tionalization, community and expert input on the mits states to expand income levels for eligibility for benefits of such a transition, from legal, clinical, HCBS participation, and greatly expands the “wrap and public policy perspectives, are needed. around” services that can be made available to HCBS • Assist in the coverage of newly eligible persons. participants.15 These services include “case manage- Opportunities for coverage are often not taken, ment, homemaker/home health aide, personal care, due to such factors as language/cultural barriers, adult day health, habilitation, and respite care services. bureaucratic complexity, or lack of knowledge of To the extent states accept these options, they will gain the new programs. Community groups and clini- federal funding support for improved Medicaid ser- cians can help to provide a bridge between the vices for people with chronic illness and disabilities. state’s efforts and the needs of vulnerable popula- For people newly insured through the Exchanges, tions by, for example, facilitating enrollment at ACA offers the potential for improved coordination the point of care and providing linguistically and of chronic care. Section 1302, for example, defines culturally fluent assistance at churches and com- “essential health benefits” to include both chronic munity centers. disease management and habilitative care — i.e., care • Coordinate efforts among NGOs. Complex health that maintains functioning but does not cure a dis- reforms must draw on multiple areas of expertise ease or restore a patient following an injury. Including of diverse organizations within states and nation- habilitative care within essential health benefits may ally. Effective advocacy requires open commu- improve care dramatically for people with chronic nication and collaboration among groups with illness and disabilities because such care is covered different competencies to assist the states in their poorly or not at all by most private insurance plans.16 implementation efforts, and to protect the inter- How robustly these provisions will extend needed ser- ests of the vulnerable populations who are the vices depends in part on the federal regulatory elabo- intended beneficiaries of national health reforms.
using law, policy, and research to improve the public’s health • spring 2011 71 JLME SUPPLEMENT
11. R. Steinbrook, “Easing the Shortage in Adult Primary Care – Is References It All about Money?” New England Journal of Medicine 360 1. The Patient Protection and Affordable Care Act of 2010, Pub. (2009): 2696-2699, at 2698. L. No. 111-148, amended by Health Care and Education Rec- 12. M. O. Mundinger et al., “Primary Care Outcomes in Patients onciliation Act, Pub. L. No. 111-152, is commonly referred to as Treated by Nurse Practitioners or Physicians,” JAMA 283 the Affordable Care Act. (2000): 59-68, at 66-68. 2. See Congressional Budget Office, Letter from Peter Elmendorf 13. M. J. Dueker et al., “The Practice Boundaries of Advanced to Nancy Pelosi, March 18, 2010, available at
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