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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IF YOU DON'T LIKE A STATUTE: 1. GET VOTES, 2. CHANGE.
I have left the following Comments this morning on regulations.gov. These Comments address the proposed neutering of asylum law in the United States through proposed rules and regulations. The deadline for Comments is tomorrow.
Leave your own Comments. Feel free to use any part of these Comments. Leaving Comments is easy. All you have to do to leave a Comment is to write one.
Stay safe. And help other people who depend on you to stay safe.
COMMENTS no 2 ON PROPOSED CHANGES TO RULES "PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL; CREDIBLE FEAR AND REASONABLE FEAR REVIEW."
Re: Joint Proposed Rulemaking.
Department of Justice & Department of Homeland Security.
RIN 1125-AA94;
EOIR Docket No. 18-0002.
These Comments address in particular your proposed additions and other changes of "streamlined proceedings" for processing applicants for admission to the United States.
To begin with, Congress has already established a procedure for processing applicants for admission to the United States. You do not have the power or authority to change statutes by rules or regulations or by changes to rules and regulations.
Immigration officers are required by statute to screen applicants for admission to the United States. See 8 USCA § 1225(b)(1)(A).
If the immigration officer determines that an applicant is inadmissible, she must refer the applicant to an asylum officer, by statute. Congress specified two times in the statute when applicants deemed inadmissible are required to be referred to an asylum officer:
8 USCA § 1225(b)(1)(A).
Congress set out the statutory obligations of asylum officers in 8 USCA § 1225(b)(1)(B). Subparagraph (B) of subsection 1225(b)(1) is titled, "Asylum Interviews[.]"
Congress expressly defined a "credible fear of persecution":
(v)“Credible fear of persecution” defined
For purposes of this subparagraph, the term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title.
8 USCA § 1225(b)(1)(B)(iv).
The process that Congress established for determining a "credible fear of persecution" means a significant possibility, that the alien could establish eligibility for asylum under U.S. law. The initial determination must, Congress wrote, include the taking of statements under oath from the alien and it must also include the asylum officer's determination of the alien's credibility in making those statements under oath. Such other facts --not opinions, not speculation, not conjecture -- as are known to the asylum officer must also be taken into account in making the initial determination.
This procedure has been established by Congress. This procedure is so important that Congress established the procedure for processing applicants for admission to the U.S. in the legislation itself. Your proposed rules changes do not reflect these safeguards established by Congress in the statute. No rule you propose, and no rules change you advocate, can usurp the Constitutional prerogative of Congress in this area, nor in any other.
Further, Congress knew about streamlined procedures when Congress wrote this statute. Congress provided for streamlined procedures concerning Removal of Aliens Inadmissible on Security and Related Grounds. See 8 USCA § 1225(c). Congress chose not to enact a streamlined procedure in all cases whenever a person applies for admission to the United States. Your proposed rules changes would do that. You are attempting to rewrite a statute with rules and regulations. This you may not lawfully do.
It is a basic rule of statutory construction, an axiom of statutory construction if you will, that when any legislative body writes a statute, the fact that they clearly knew how to write different provisions but chose not to do so in the statute at hand, strengthens the interpretation that the legislative body did not intend for different provisions to apply. In writing this statute, Congress did not intend to write the different provisions you propose in your changed rules and regulations. It is worth noting here that you have not introduced your proposal in Congress to change the law, because you do not have the votes.
For all these reasons, whether taken separately or together, your proposed rules changes are invalid, without authority, and contrary to the Congressional mandate specified in 8 USCA § 1225. Your proposed rules changes should be withdrawn accordingly.
Thank you for your consideration of these Comments.
Sincerely,
Dennis J. Wall
Posted by Dennis Wall on July 14, 2020 at 07:41 AM in Comments to Proposed Rules Changes, Rules and regulations | Permalink | Comments (0)
Tags: #18USCA1225, #Asylum, #AsylumOfficers, #Congress, #CredibleFearPersecution, #ImmigrationOfficers, #RulesAndRegulations, #Statute, #StreamlinedProceedings