The Affordable Care Act's Impact on Medicaid Eligibility, Enrollment, and Benefits for People with Disabilities
Issue Brief
77 Fed. Reg. 17144-17217 (March 23, 2012) (some provisions relating to safeguarding information, timeliness and performance standards, and coordination with other insurance affordability programs were issued in interim final form); 78 Fed. Reg. 42160-42322 (July 15, 2013) (notice of proposed rule-making which also covers Medicaid premiums and cost-sharing, notices, fair hearings, and the Medicaid and Marketplace eligibility appeals process, some provisions of which have not yet been finalized), available at http://www.gpo.gov/fdsys/pkg/FR-2013-07-15/pdf/2013-16271.pdf; 78 Fed. Reg. 4594-4724 (Jan. 22, 2013), available at http://www.gpo.gov/fdsys/pkg/FR-2013-01-22/pdf/2013-00659.pdf; see also 77 Fed. Reg. 18310-18475 (March 27, 2012) (HHS’s final regulations regarding eligibility for cost-sharing reductions, APTC, and Marketplace QHP enrollment), available at http://www.gpo.gov/fdsys/pkg/FR-2012-03-23/pdf/2012-6560.pdf; 77 Fed. Reg. 30377-30400 (May 23, 2012) (Treasury Department’s final regulations regarding premium tax credits), available at http://www.gpo.gov/fdsys/pkg/FR-2012-05-23/pdf/2012-12421.pdf.
Available at http://www.cms.gov/CCIIO/Resources/Forms-Reports-and-Other-Resources/index.html. For more information, see Kaiser Commission on Medicaid and the Uninsured, The Single Streamlined Application under the Affordable Care Act: Key Elements of the Proposed Application and Current Medicaid and CHIP Applications (Feb. 2013), available at http://www.kff.org/medicaid/report/the-single-streamlined-application-under-the-affordable-care-act-key-elements-of-the-proposed-application-and-current-medicaid-and-chip-applications/.
For additional background, see Kaiser Commission on Medicaid and the Uninsured, Medicaid Eligibility, Enrollment Simplification, and Coordination under the Affordable Care Act: A Summary of CMS’s March 23, 2012 Final Rule (Dec. 2012), available at http://www.kff.org/medicaid/issue-brief/medicaid-eligibility-enrollment-simplification-and-coordination-under-the-affordable-care-act-a-summary-of-cmss-march-23-2012-final-rule/.
Kaiser Commission on Medicaid and the Uninsured and Urban Institute estimates based on data from FY 2010 MSIS (2013) (because 2010 data were unavailable, 2009 MSIS data were used for Colorado, Idaho, Missouri, and West Virginia), available at http://www.kff.org/medicaid/state-indicator/distribution-by-enrollment-group/.
The ACA expands Medicaid eligibility to 133%FPL and includes an income disregard of 5 FPL percentage points, effectively making the income limit 138% FPL. ACA § 2002(a), adding 42 U.S.C. § 1396a(e)(14)(I). CMS’s July 2013 regulations change how the income disregard is applied when determining financial eligibility under the MAGI methodology, which could affect the coverage group and benefits package that beneficiaries receive. Specifically, the July 2013 regulations apply the 5% FPL disregard to the eligibility group with the highest income standard under which a person may be determined eligible for Medicaid using MAGI methods. 42 C.F.R. § 435.603(d)(4). CMS explains that applying the 5% disregard only when an applicant would otherwise be ineligible for Medicaid based on MAGI will account for situations in which a person in a Medicaid expansion state should be considered newly eligible and therefore qualifies for enhanced federal matching funds as a member of the new adult coverage group. 78 Fed. Reg. 4594, 4625-4626 (Jan. 22, 2013). This policy also can impact the benefits package available to beneficiaries, because as explained in the text, newly eligible adults will receive an alternative benefit plan which may differ from Medicaid state plan benefits. The ACA also provides that the federal government will cover all of the states’ costs of the coverage expansion to 138% FPL from 2014 through 2016, gradually decreasing to 90% in 2020 and thereafter. The federal matching rate for the ACA’s Medicaid expansion exceeds the states’ regular federal matching rates, which range from 50% to over 73% in 2013, depending upon a state’s per capita personal income relative to the national average. Kaiser Commission on Medicaid and the Uninsured, Medicaid: A Primer: Key Information on the Nation’s Health Coverage Program for Low-Income People (March 2013), available at http://www.kff.org/medicaid/issue-brief/medicaid-a-primer/; see generally Kaiser Commission on Medicaid and the Uninsured, Medicaid Financing: An Overview of the Federal Medicaid Matching Rate (FMAP) (Sept. 2012), available at http://www.kff.org/health-reform/issue-brief/medicaid-financing-an-overview-of-the-federal/. The ACA also provides states with a state plan option to cover non-elderly individuals who are not otherwise eligible for Medicaid with incomes above 138% FPL, up to a maximum income limit set by the state, beginning in January 2014. 42 C.F.R. § 435.218.
The Supreme Court’s ruling on the constitutionality of the ACA maintains the Medicaid expansion but limits the Secretary’s authority to enforce it. If a state does not implement the expansion, the Secretary cannot withhold existing federal program funds. Kaiser Commission on Medicaid and the Uninsured, Implementing the ACA’s Medicaid-Related Health Reform Provisions After the Supreme Court’s Decision (Aug. 2012), available at http://www.kff.org/health-reform/issue-brief/implementing-the-acas-medicaid-related-health-reform/.
Kaiser Commission on Medicaid and the Uninsured, Status of State Action on the Medicaid Expansion Decision, 2014, available at http://www.kff.org/medicaid/state-indicator/state-activity-around-expanding-medicaid-under-the-affordable-care-act/.
Kaiser Commission on Medicaid & the Uninsured, Where are States Today? Medicaid and CHIP Eligibility Levels for Children and Non-Disabled Adults as of January 1, 2014 (Jan. 13, 2014), available at https://www.kff.org/medicaid/fact-sheet/where-are-states-today-medicaid-and-chip/.
42 C.F.R. §§ 435.110, 435.116, 435.118, 435.119, 435.603.
See generally Kaiser Commission on Medicaid and the Uninsured, Medicaid Financial Eligibility: Primary Pathways for the Elderly and People with Disabilities (Feb. 2010), available at http://www.kff.org/medicaid/issue-brief/medicaid-financial-eligibility-primary-pathways-for-the-elderly-and-people-with-disabilities/.
States that elect the § 209(b) option are permitted to use definitions of disability or financial eligibility standards that are more restrictive than the federal SSI rules, so long as the state’s rules are not more restrictive than those in effect in January 1972. Section 209(b) states must allow SSI beneficiaries to establish Medicaid eligibility through a spend-down by deducting unreimbursed out-of-pocket medical expenses from their countable income. Section 209(b) states also must provide Medicaid to children who receive SSI and who meet the state’s financial eligibility rules for the AFDC program as of July 16, 1996.
The SSI eligibility determination process is administered by the Social Security Administration (SSA). Medical documentation of a qualifying disability is required, which can be a barrier for applicants who do not have consistent relationships with treatment providers, such as people who are uninsured or people who are homeless, although SSA does have authority to order consultative examinations in cases that lack sufficient medical documentation. See generally Kaiser Commission on Medicaid and the Uninsured, Medicaid Coverage and Care for the Homeless Population: Key Lessons to Consider for the 2014 Medicaid Expansion (Sept. 2012), available at http://www.kff.org/health-reform/report/medicaid-coverage-and-care-for-the-homeless/. In addition, establishing eligibility for SSI can take a long time, therefore delaying receipt of Medicaid on this basis. Overall, 30.1% of SSI applications were approved in 2009. Social Security Administration, SSI Annual Statistical Report, 2010 (Aug. 2011), Table 69, available at https://www.socialsecurity.gov/policy/docs/statcomps/ssi_asr/2010/sect10.html. In cases involving medical determinations (as opposed to decisions based on financial or other non-medical eligibility criteria) in 2009, 32.9% of SSI claims were approved upon initial application, and 62.9% of SSI claims proceeding to appeals were ultimately approved after an administrative hearing or higher level of appeal. Id. at Tables 70, 72. As of April 2012, the number of months from the time a hearing is requested until the hearing is held ranged from 4 to 17, with 131 out of 170 hearing offices reporting wait times in the range of 9 to 13 months and an average of over 11 months across all hearing offices. Social Security Administration, NETSTAT Report (April 2012), available at http://www.ssa.gov/appeals/DataSets/01_NetStat_Report.html.
See generally Kaiser Commission on Medicaid and the Uninsured, Medicaid Financial Eligibility: Primary Pathways for the Elderly and People with Disabilities (Feb. 2010), available at http://www.kff.org/medicaid/issue-brief/medicaid-financial-eligibility-primary-pathways-for-the-elderly-and-people-with-disabilities/.
42 U.S.C. § 1396n(i); 77 Fed. Reg. 26361-26406 (May 3, 2012).
Kaiser Commission on Medicaid and the Uninsured, The Medicaid Medically Needy Program: Spending and Enrollment Update (Dec. 2012), available at http://www.kff.org/medicaid/issue-brief/the-medicaid-medically-needy-program-spending-and/.
42 C.F.R. § 435.603(j). CMS’s January 2013 rule proposed applying the MAGI financial eligibility methodology to the optional Medicaid coverage group for people with tuberculosis as of January 2014 and solicited public comment on whether this group should instead be exempt from MAGI methods and continue to have financial eligibility determined using existing Medicaid rules applicable to people with disabilities. Proposed 42 C.F.R. § 435.215. This proposal has not yet been finalized. In addition, CMS proposed to clarify that the exemption from the MAGI financial methodology for people who request coverage for LTSS applies to eligibility determinations for coverage groups for which meeting a level of care is required or for groups that offer long-term care services that are not available to beneficiaries eligible for Medicaid in a MAGI-related group; it does not apply when a beneficiary is eligible for Medicaid in a MAGI-related group that covers long-term care services, simply because the beneficiary requests such services. Proposed 42 C.F.R. § 435.603(j)(4). This provision has not yet been finalized.
42 C.F.R. § 435.911(c)(1).
Timeliness standards govern the maximum period within which an individual applicant is entitled to a decision about her eligibility, while performance standards are used to assess the overall efficiency, timeliness, and accuracy of eligibility determinations across a pool of applicants.
42 C.F.R. §§ 435.911(c)(3), (d); 435.1200(e)(2).
The preamble, but not the final Medicaid eligibility regulations themselves, provides that the written agreement between the state Medicaid agency and the Marketplace should include the parties’ respective responsibilities specifically for identifying and transferring applications for people who are potentially eligible for Medicaid in disability-related (non-MAGI) coverage groups. Compare 42 C.F.R. § 431.10(c) with 77 Fed. Reg. 17189.
45 C.F.R. § 155.345(g).
Noted in the preamble to HHS’s Marketplace eligibility regulations. 77 Fed. Reg. 18379 (based on HHS’s interpretation of proposed Treasury regulation 26 C.F.R. § 1.36B-2(c)(2)).
42 C.F.R. § 440.347(c); 78 Fed. Reg. 42200-42201.
State Medicaid agencies will define “habilitative services” for their Medicaid ABPs if those services are missing from the base benchmark plan. 42 C.F.R § § 440.345(d); 440.347. Habilitative services are one of these ten categories of essential health benefits but typically are not included in the private health insurance plans on which states can base their ABPs.
42 C.F.R. § 440.345(c).
See Kaiser Family Foundation, Explaining Health Reform: Benefits and Cost-Sharing for Adult Medicaid Beneficiaries (Aug. 2010), available at http://www.kff.org/health-reform/issue-brief/explaining-health-reform-benefits-and-cost-sharing-for-adult-medicaid-beneficiaries/; see also 42 C.F.R. §440.330(d); CMS, Frequently Asked Questions on Essential Health Benefits Bulletin, available at http://cciio.cms.gov/resources/files/Files2/02172012/ehb-faq-508.pdf.
42 C.F.R. § 440.347(e).
42 U.S.C. § 1396a(k)(1). Technically, beneficiaries in the new adult expansion group who meet an ABP exemption “must be given the option of an Alternative Benefit Plan that includes all benefits available under the approved State plan” instead of being required to receive the ABP that the state has selected for the expansion group. 42 C.F.R. § 440.315.
42 C.F.R. § 440.315(f). Prior to the July 2013 regulations, a state’s definition of people with special medical needs must include at minimum the following groups: children under 19 who are eligible for SSI, eligible under the Katie Becket option, in foster care or another out-of-home placement, receiving foster care or adoption assistance, or receiving services through a family-centered, community-based, coordinated care system receiving maternal and child health funds; children with serious emotional disturbances; individuals with disabling mental disorders; individuals with serious and complex medical conditions; and individuals with physical and/or mental disabilities that significantly impair their ability to perform one or more activities of daily living.
For more information, see Kaiser Commission on Medicaid and the Uninsured, Medicaid Enrollment and Expenditures By Federal Core Requirements and State Options (Jan. 2012 update), available at http://www.kff.org/medicaid/issue-brief/medicaid-enrollment-and-expenditures-by-federal-core/.
States provide these services to comply with the U.S. Supreme Court’s Olmstead decision, which held that unjustified institutionalization of people with disabilities violates the Americans with Disabilities Act. Olmstead v. L.C., 527 U.S. 581 (1999), available at http://www.law.cornell.edu/supct/html/98-536.ZS.html. In addition, HCBS often are less expensive than equivalent institutional care. However, states can set enrollment caps on the number of people eligible for home and community-based waiver services, resulting in waiting lists for waiver services that vary widely among states and disability groups. Kaiser Commission on Medicaid and the Uninsured, Medicaid Home and Community-Based Services Programs: 2009 Data Update (Dec. 2012), available at http://www.kff.org/medicaid/report/medicaid-home-and-community-based-service-programs/.
The process for doing so is summarized at 78 Fed. Reg. 42238.
42 C.F.R. § 440.330(d).
42 C.F.R. § 435.911(c)(2).
42 C.F.R. § 435.911(c)(2).
Although not explicit in the regulation text, this policy is indicated in CMS’s response to public comments. 77 Fed. Reg. 17167.
42 C.F.R. § 435.907(c). While CMS’s response to public comments indicates that supplemental application forms must meet Secretarial guidelines and will be available for public review, the text of the final regulations requires that supplemental forms and MAGI-exempt applications only be submitted to the Secretary. Compare 77 Fed. Reg. 17163-17164 with 42 C.F.R. § 435.907(c). Under the ACA, people may apply for Medicaid online, by phone, by mail, by other commonly available electronic means, or in person. If a state Medicaid agency chooses to use supplemental forms to determine non-MAGI eligibility, CMS’s response to the public comments received on the proposed regulations indicates that these forms also should be accepted by all of the above means “to the extent practical.”
CMS, Attachment A: List of Items in the Online Application to Support Eligibility Determinations for Enrollment through the Health Insurance Marketplace and for Medicaid and the Children’s Health Insurance Program at 29 (revised April 23, 2013). The paper application asks whether applicants have a physical, mental or emotional health condition that causes limitations in activities (like bathing, dressing, daily chores, etc.) or live in a medical facility or nursing home. Health Insurance Marketplace, Application for Health Coverage & Help Paying Costs (Short Form) at 1.
CMS, Attachment A: List of Items in the Online Application to Support Eligibility Determinations for Enrollment through the Health Insurance Marketplace and for Medicaid and the Children’s Health Insurance Program at 55 (revised April 23, 2013).
However, Medicaid applications must be reinstated if an applicant, who withdrew her Medicaid application in order to access Marketplace coverage (in a Marketplace that assesses potential Medicaid eligibility), subsequently appeals a decision related to her Marketplace coverage and the Marketplace appeals entity determines that she is potentially eligible for Medicaid. 42 C.F.R. § 435.907(h); 45 C.F.R. § 155.302(b)(4)(i)(A).
CMS, Attachment A: List of Items in the Online Application to Support Eligibility Determinations for Enrollment through the Health Insurance Marketplace and for Medicaid and the Children’s Health Insurance Program at 55 (revised April 23, 2013). Marketplaces also must notify applicants of the opportunity to request a full Medicaid eligibility determination, including eligibility for disability-related coverage groups 45 C.F.R. § 155.345(c).
42 C.F.R. § 435.916(b).
42 C.F.R. § 435.916(a)(3).
42 C.F.R. §435.916(a)(2), (b).
42 C.F.R. § 435.916(a)(1), (b). When renewing eligibility, CMS’s final regulations confirm the long-standing policy that the state Medicaid agency must consider a person’s eligibility in all coverage groups before deciding that she is no longer eligible for Medicaid. 42 C.F.R. § 435.916(f). In addition, if a person is determined ineligible for Medicaid upon renewal, the state Medicaid agency must promptly and without undue delay determine potential eligibility for other insurance affordability programs and electronically transfer the person’s account to the Marketplace. 42 C.F.R. § 435.1200(e).
42 C.F.R. § 435.908. Specifically, assistance includes “providing information on insurance affordability programs and coverage options, helping individuals complete an application or renewal, working with the individual to provide required documentation, submitting applications and renewals to the agency, interacting with the agency on the status of such applications and renewals, assisting individuals with responding to any requests from the agency, and managing their case between the eligibility determination and regularly scheduled renewals.” 42 C.F.R. § 435.908(c)(2). Application assisters may be certified to provide one, some or all of the permitted activities. Id. For more information about the importance of application assistance, see Kaiser Commission on Medicaid and the Uninsured, Webinar: Translating the Medicaid Expansion into Increased Coverage: The Role of Application Assistance (March 20, 2013), available at http://www.kff.org/medicaid/webinar_medicaid_expansion.cfm.
78 Fed. Reg. 4594, 4605-4606 (Jan. 22, 2013). The January 2013 proposed regulations also provide that Marketplace application counselors must provide reasonable accommodations for people with disabilities if they are providing in-person assistance. Proposed 45 C.F.R. § 155.255(b)(7).
42 C.F.R. § 435.923; see also 45 C.F.R. § 155.227.
42 C.F.R. § 435.905.
Proposed 42 C.F.R. § 435.905(b)(3).
See, e.g., 28 C.F.R. § 35.104 (defining auxiliary aids and services under ADA Title II, which applies to state and local governmental entities).
42 C.F.R. § § 435.905, 435.1200(f)(2). While CMS has not yet finalized its proposed provisions regarding the accessibility of the appeals process, CMS notes that notices and fair hearings must comply with the ADA. 78 Fed. Reg. 42164. See also proposed 42 C.F.R. § 431.206(e) (notices); proposed 42 C.F.R. § 431.205(e) (fair hearings). In addition to the accessibility requirement for notices generally, CMS also specifically proposed that certain types of notices be accessible, including notices of eligibility determinations (proposed 42 C.F.R. § 435.917(a)(2)), notices of the reasonable opportunity period when the agency is unable to promptly verify citizenship or immigration status (proposed 42 C.F.R. § 435.956(g)), and notices of premium and cost sharing requirements (proposed 42 C.F.R. § 447.57(b)).
42 C.F.R. § 435.908.
42 C.F.R. § § 435.907(g), 435.916(g).
45 C.F.R. § 155.120(c).
45 C.F.R. § 155.205.
45 C.F.R. § § 155.205, 155.210(e)(5), 155.230(b).
45 C.F.R. § 155.130(c).
