An advocacy group is worried that a small number of Vermonters on Medicaid could lose access to nursing care and rehabilitation services under a proposed update in eligibility requirements.
Lawmakers on the Legislative Committee on Administrative Rules on Thursday reviewed and heard testimony on the final version of the health care eligibility and enrollment rules.
Vermont Legal Aid (VLA), a nonprofit that provides free legal service to Vermonters, objected to a section of the 391-page document, noting that for a few Vermonters the effects may be serious.
The section, said VLA’s Christine Speidel, “represents a change in the substance of the eligibility criteria of Choices for Care,” a program that covers long-term care, such as a nursing home stays or rehabilitation services, for patients who meet clinical and income eligibility. It is paid for through a state Medicaid waiver.
But what came out at the meeting appeared, at times, to be a squabble based on a series of misunderstandings.
Vermont Legal Aid claimed that a small, but significant, portion of those who currently qualify for long term-care under Choices for Care will no longer be eligible under the new rules. State officials said the rules remain consistent with what they were previously.
Under the constraints of federal regulations, the state claims it has no ability to provide coverage to a subset of patients that Vermont Legal Aid says have had coverage previously.
For an hour and a half, LCAR heard testimony from nine witnesses, representing the Department of Vermont Health Access, health insurance companies, the Department of Children and Families and VLA.
In the end, the committee postponed action on approving the eligibility and enrollment rules for Vermont Health Connect. The committee cited the need to get a deeper understanding of the issues, and fully read the briefs referred to during testimony. The issue will be taken up at the next LCAR meeting July 10.
The health care rules have been in process since last summer, and three sets of emergency rules have been enacted in the interim. Most of the changes enacted, said Devon Green, a health care policy analyst from the Agency of Administration, were non-controversial and required by federal law.
Sen. Mark McDonald, D-Orange, congratulated the roomful of witnesses on their progress.
“It’s been about a year … to bring us patiently to where we are today. That should be acknowledged,” he said.
Mark Larson, commissioner of the Department of Vermont Health Access, said a concern that the two-week delay might present challenges in filing the rules on time. They must be submitted by July 14, he said, or the state would be forced to pass a fourth round of emergency rules.
Under the proposed rules — and, the state says, under the current rules as well — individuals who want to apply for long-term care must be clinically and categorically eligible. The state says those processes are, and have always been, separate. VLA claims otherwise.
The effect that the state’s proposed policy would have, Speidel said, is that certain individuals who need between a month and a year of intensive rehabilitative or nursing home care, but who don’t fit the categorical criteria — those under age 65, without minor children, who do not qualify for disability, and who make more than the federally designated 138 percent of the poverty level — will be unable to receive assistance.
“It could really hurt some people,” VLA Chief Health Care Advocate Trinka Kerr said.
Kerr posed a hypothetical example of a young adult involved in a serious car accident with the medical determination that he needs to be in a rehab facility for several months. Even if he was financially eligible, but didn’t have minor children or have a registered disability or fit into another Medicaid eligibility category, he would have to pay for his medical expenses out of pocket.
Furthermore, Kerr said, if the accident victim spent all of his money paying for the costs, he still wouldn’t qualify for long-term care assistance, as financial eligibility is based on income and doesn’t take into account money spent on medical expenses.
VLA representatives, however, were unable to point to a concrete example of who might lose this funding or estimate the number of people who would be affected.
The program is administered through the Department of Aging and Independent Living, though it was unclear if the Department of Children and Families handles eligibility determinations. DAIL did not respond to calls for comment and clarification about how the program works.
Either VLA is incorrect in its understanding of who has received Choices for Care coverage in the past nine years or the state made a few errors and some Vermonters slipped through the cracks and received coverage they should not have received, Green said.
“It’s not a perfect process,” Green said, adding that even if the committee approved the rules, the discussion was far from over. “This is not the last bite of the apple by any means.”
“It’s really surprising that we’re having this fundamental dispute about what’s been happening in the last nine years,” Speidel said during her testimony before the committee. “The state says we’ve always done it this way, but that’s not our experience.”
Gini Milkey, director of the Community of Vermont Elders, said she worries that this provision will likely affect the elderly under age 65, who may otherwise be eligible for Choices for Care. Wait times, she said, may also increase under the rules.
Until the next LCAR meeting in two weeks, the VLA will work with the state to reconcile the disparate understandings of the law. Ideally, Seidel said, they would get the national Center for Medicare and Medicaid Services (CMS) as an arbiter.
She shrugged, adding, “If CMS says ‘the way you interpret this is right,’ then we would back down.”
