This article will publish my Comments to the second of two Oklahoma applications for a "demonstration" or waiver of compliance with Medicaid law. I just published my Comments to the first Oklahoma application, along with a description of how to leave your own Comments.
The deadline for leaving Comments is the close of business tomorrow, Saturday, June 27, 2020. Bizarrely, Comments are not being accepted on regulations.gov like you might expect. The only place I could leave my Comments was on the website for Medicaid.gov. I am certain that you will have the same experience including the journey I was forced to travel. Making a long story short, as they say, I had to Google the name of the particular Oklahoma application that I wanted to Comment on. That gave me a link to the Medicaid.gov page where I could "Submit" Comments. But the good folks at Medicaid.gov were not finished with me, because even when I reached the correct page to leave Comments, I had to prove not less than 6 times that "I am not a robot." Then the site allowed me to "Validate" my Submission. It takes a lot of determination to be heard sometimes and in some places depending on who is in charge, it seems. Persevere. I did.
Here is my Comment on Oklahoma's application "2.0" for authority not to comply with Medicaid as it is presently written. Feel free to use my Comments or any part of them, paraphrase in any way you want, but please leave your Comments.
As I said in the earlier article, I will say again:
If you do not help in this effort, who will?
COMMENTS TO 2.0 OKLAHOMA SOONER CARE DEMONSTRATION (MEDICAID WAIVER APPLICATION).06.26.20.
Re: Oklahoma SoonerCare 2.0 Demonstration.
Submitted on Medicaid.gov portal on website Friday, 06.26.20
The law places a limitation on demonstration projects that this demonstration project does not meet. "Indeed, the limitation remains that demonstration projects can only be approved if they 'promote the objectives' of the Act." Stewart v. Azar, 366 F. Supp. 3d 125, 140 (D.D.C. 2019), app. dismissed & motion to vacate district court judgment denied, No. 19-5095 (D.C. Cir. January 8, 2020).
The Comments I previously left are expressly incorporated herein by reference. I left those Comments earlier this date regarding what you have identified as Oklahoma Sooner Care - PCMH and ITU Amendments Demonstration. In brief summary of the objectives of the Act which 2.0 also does not promote and is therefore just as arbitrary and capricious if authorized, there is insufficient consideration in the application and in your responses to it to date, of how if at all 2.0 "promotes the objectives of the Act," including but not limited to how this demonstration project once approved would help provide health coverage for Medicaid beneficiaries; the loss of coverage that would result under it; its failure to promote the objectives of the Act; no evaluation of the application's representations as to how many people would lose coverage; insufficient attention to how the Oklahoma 2.0 demonstration project would help furnish medical assistance; and failure to adequately consider Medicaid's central concern after the enactment of the Patient Protection and Affordable Care Act of covering health costs for an expansion population as well, including low-income adults under 65 who would not otherwise qualify.
No head of an administrative agency is empowered "to generalize or otherwise extrapolate the ultimate value of the program Congress designed. Rather, [she] must employ the means Congress prescribed to tackle the program it identified." Stewart v. Azar, 366 F. Supp. 3d at 146. The SoonerCare 2.0 demonstration project would if authorized substitute Oklahoma's perception of the ultimate value of the program Congress designed, namely, by substituting federal block grants of money to Oklahoma, for the value Congress itself placed on the program. That way lies unserved Medicaid beneficiaries in Oklahoma, which is the opposite of what Congress intended when it enacted the Act. Oklahoma -- and the federal government -- have no other valid choice than to employ the means Congress prescribed to tackle the program Congress identified: funding the medical needs of Medicaid beneficiaries by providing funding to support the States including Oklahoma in furnishing those services whenever those services are required by a Medicaid beneficiary qualified by the Medicaid law to receive them.
There are other people who make money from the Medicaid program which include but are not limited to providers who apply to participate in the program. See, e.g., § 18D:6, Medicaid Providers: "The providers are people, too, my friend," by Dennis J. Wall in Catastrophe Claims (Thomson Reuters West 2020).
Over 75% of Medicaid beneficiaries receive their Medicaid-covered services through care managed by private insurance companies. The private insurance companies are compensated for their management services. Centers for Medicare & Medicaid Services (CMS), “Medicaid and CHIP” January 2017 report at 3.
Beyond and in addition to paying fees for management services, the Centers for Medicare & Medicaid Services describe the additional costs to federal taxpayers of outsourcing in the course of “MODERNIZING MANAGED CARE”:
There has been a fundamental shift in how Medicaid services are delivered and paid for. When Medicaid was first established in 1965, it, like Medicare, was primarily a claims-paying fee-for-service program. Today, more than 75 percent of all Medicaid beneficiaries are enrolled in managed care, and most are served by private insurers that are financially responsible for improving access, quality and the health of their enrollees all while containing costs and ensuring value.
Centers for Medicare & Medicaid Services (CMS), “Medicaid & CHIP” January 2017 report at 16 (emphasis added).
The effects of the SoonerCare 2.0 demonstration on Medicaid providers, insurance carriers, and managed care servers are required to be taken into account, as well as the effects on Medicaid beneficiaries. The failure to take any of these effects into account renders the demonstration project arbitrary and capricious.
Thank you for your consideration.
Dennis Wall
www.dennisjwall.com
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Please read the disclaimer. This blog article ©2020 Dennis J. Wall. All rights reserved.
"If you do not help in this effort, who will?"
The Consumer Financial Protection Bureau has proposed a new rule that would contradict what Congress wrote in the Dodd-Frank Act. They don't have the votes in Congress. So, they are trying to make law in proposed rules like this one. Comments are due by September 28, 2020.
Injustices like this must be opposed. The success is in the opposition, not always in the result. Feel free to use, paraphrase, or rephrase my own Comments below. I was inspired by a National Consumer Law Statement on this proposed new rule, myself. The important point is that proposed new rules like this one must be opposed. If using my language is inspiration, too, for you to leave your own Comments in opposition, that is all to the good.
To rephrase the writer and philosopher Albert Camus who wrote about actions during a Plague among other things, this may be a country now in which people suffer. We may not be able to do anything about that at the moment. But we can lessen the number of suffering people. If you do not help in this effort, who will?
The CFPB's Notice of Proposed Rulemaking is on www.regulations.gov where you can leave your Comments. The docket number is CFPB-2020-0028. The RIN is 3170-AA98. To say again, Comments are due by September 28, 2020.
Thank you.
This rule proposed by the CFPB would immunize lenders from legal liability for making mortgage loans without regard to borrowers’ ability to repay if the borrower remains current for the first three years of the loan and the loan meets other requirements. This proposed new rule and new immunity for lenders is contrary to the Dodd-Frank Act.
In the Dodd-Frank Act, Congress required that before booking a loan so to speak, that lenders must make a good faith determination of a borrower’s ability to repay it. Further, Congress expressly allowed borrowers to defend foreclosure by asserting a defense that the lender ignored the borrower’s lack of ability to repay in making the loan.
There are many reasons a homeowner can make payments even for years and even when their mortgage is unaffordable. Examples drawn from real-world experience have been reported including "payments from roommates who are not on the mortgage, borrowing money, or even going without essentials such utilities or medical care." The Congressional choice to enact protections to homeowners to save their homes in the Ability-to-Repay rule already contemplated this situation and allowed for it. That is a policy choice. It is the policy choice made by Congress in the statutes that make up Dodd-Frank. No mere administrative agency including the CFPB has authority to repeal statutes, and no mere agency including the CFPB has the power to enact this proposed rule.
Congress wrote the Ability-to-Repay rule to prevent market excesses that contributed to the Great Recession. Many communities, especially low-income neighborhoods and communities of color, still have not recovered from the Great Recession. It is never a good idea to induce a Second Great Recession, but it is particularly not a good idea during a Pandemic.
Thank you.
Please read the disclaimer. ©2020 Dennis J. Wall. All rights reserved.
Posted by Dennis Wall on September 03, 2020 at 05:50 AM in Comments to Proposed Rules Changes, Rules and regulations | Permalink | Comments (0)
Tags: #Ability-to-RepayRule, #CFPB, #ConsumerFinancialProtectionBureau, #immunity, #mortgages