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OFFICE OF KENTUCKY LEGAL SERVICES PROGRAMS

1139 EAST BROADWAY

LOUISVILLE, KY 40204

 

                ANNE MARIE REGAN, ATTORNEY                                                                                          PHONE     502-584-0349

                AMREGAN@BELLSOUTH.NET                                                                                                FAX         502-584-0349

 

 

 

December 8, 2005

 

Shannon Turner, Commissioner

Department for Medicaid Services

275 East Main Street  6W-A

Frankfort, KY  40621

 

Re:  Analysis of service limit issues in KyHealth Choices waiver proposal

 

Dear Commissioner Turner:

 

With this letter, we are pleased to share with you our second set of comments on the KyHealth Choices waiver proposal.  The enclosed chart focuses on the service limits proposed in all four of the benefit plans that would be created under the waiver.  We will also send you comments on the long term care provisions of the proposal.

 

As we have stated before, we appreciate the fact that the KyHealth Choices waiver proposal remains a work in progress.  It is our understanding that you met with CMS officials in Washington last week to review the waiver proposal in detail and that further changes to the proposal will result from these discussions.  We hope that the enclosed comments will be useful to you as you continue to refine Kentucky’s proposal.  

 

Our comments are informed by our role as the state support and advocacy office for the four civil legal services program in Kentucky.  Attorneys and paralegals in these programs represent individuals every day who are Medicaid beneficiaries, who are seeking Medicaid benefits or who have been terminated or denied these services.  We feel that we are in a unique position to understand many of the everyday details and the problems that may result from changes proposed in the waiver.

 

We have focused our comments on areas in which we believe service limits pose the greatest risks to health or well being, the least added benefit when compared with current practice, or the greatest new procedural burden, as follows:

 

  • service limits for children under 21
  • ancillary services such as physical, occupational and speech therapy
  • prescription drugs 

 

We also discuss the need to spell out more clearly the process by which an individual can get authorization for services beyond the “soft limits” - or appeal denials. 

Our concerns and recommendations regarding service limits can be summarized as follows:

 

  • Service limits on children are inconsistent with the goals of EPSDT and KCHIP to provide all necessary and beneficial services to children.  Service limits should not be imposed on children.

 

  • EPSDT services must not be waived.  If a separate, stand-alone KCHIP program is created that includes children from the KCHIP-funded Medicaid expansion program, or if the Cabinet bids out the entire Family Choices plan, including categorically eligible Medicaid children as well as KCHIP children, it is critical that  Medicaid and EPSDT services continue to be provided to all children who are currently entitled to them.

 

  • Ancillary services such as physical, occupational and speech therapy are already adequately limited by the specific criteria necessary to obtain them and by the limits incorporated into individual plans of care and treatment.  No new limits are needed.

 

  • Kentucky recently changed its prescription drug coverage to allow unlimited generics but only three brand name drugs per month.  This approach is sufficiently restrictive.  The drug review program should be adequate to identify cases in which prescription drugs are overused or abused.

 

  • If a host of new service limits are to be implemented through the waiver, Kentucky must develop a quick, easy and fair method for obtaining an override of “soft limits” - and for appealing denials. 

 

As you know, 1115 waivers are intended to foster experimental, pilot or demonstration projects that further the objectives of the Medicaid statute.  42 U.S.C. 1315.  In its Policies and Procedures for 1115 Demonstration proposals, HHS stated its desire “to facilitate the testing of new policy approaches to social programs” and indicated that it sought “proposals which preserve and enhance beneficiary access to quality services.”  59 FR 49249 (September 27, 1994).  

 

Kentucky has stated two goals for the KyHealth Choices waiver:   to stretch resources to most appropriately meet the needs of members and to encourage Medicaid members to be personally responsible for their own health care. 

 

We recognize that Kentucky, like all other states, has budgetary concerns.  Nevertheless, we believe proposals to limit service through an 1115 waiver must include an articulation of their purpose beyond simply saving money, and sufficient procedural guarantees and operational detail to make clear that they will not adversely affect health status. 

 

That said, we are unconvinced that limiting services will help solve the Medicaid deficit, as all services today must be medically necessary and many already require prior authorization.  Budgetary goals may be better addressed by focusing on unusual utilization and by pursuing more secure funding from the legislature. 

 

If Kentucky pursues the waiver as proposed, we suggest that service limits — or even the plan as a whole — be implemented on a true pilot basis in a few counties of the state as an initial step, thereby creating control groups to help assess whether the goals of the plan have been met.  

 

As we requested in our previous letter to you regarding co-payments, we urge you to ensure that any service limits in the waiver are carefully designed as a demonstration and carefully implemented, managed and evaluated — including ongoing monitoring for adverse affects. 

 

We appreciate your attention to our comments and hope they are useful to you in your continuing discussions with CMS about the proposed service limits in KyHealth Choices. 

 

Thank you for your consideration!

 

Sincerely,

 

 

 

Anne Marie Regan

Attorney at Law

 

cc:        Mark Birdwhistell, Secretary

            Deborah Anderson

            Nici Gaines