Comment on Trump's Attack on Medicaid
note: this is a work in progress. I'd be grateful if you'd comment here with any questions or suggestions you may have.

Donald Trump is breaking the promise of Medicaid by letting states impose draconian new bureaucratic requirements on Medicaid beneficiaries. These roadblocks have the explicit goal of ripping health care away from hundreds of thousands of people. 

  • Shifts at work get cut to 18 hours a week? Kentucky wants to take away your health care.
  • Single parent who can't afford new Medicaid premiums on an income of $16,500 per year? Kentucky wants to take away your health care.
  • Work a couple of hours overtime last week? Unless state bureaucrats let you file the correct paperwork within just 10 days, Kentucky wants to lock you out of Medicaid for 6 months.

This fight is incredibly important to the 95,000 Kentuckians who will lose access to health care if we let Trump win. But it has even broader implications – the same attack on Medicaid is happening in GOP–controlled states across the country (e.g. Alabama, Arizona, Arkansas, Indiana, Kansas, Maine, Mississippi, New Hampshire, North Carolina, Ohio, Oklahoma, Utah, and Wisconsin).

You can help stop Trump's craven attempt to kill people covered by Medicaid – people like me. How? By submitting a comment through Medicaid.gov before August 18th, 2018 at 11:00PM EDT.

Yes, you can comment if you don't live in Kentucky. 

Yes, you can comment if you're not covered by Medicaid. 

Yes, your comments absolutely matter. We're commenting because it will make a difference in court. 

This guide will take you through the process of writing and submitting a comment. If you have any questions, you can leave them as a comment on this post, or ping me on twitter. And if you send me the text of your comment, I will be glad to read it over before you submit it. 

Why am I not just giving you a completed comment to copy and paste? The court won't be persuaded by even thousands of comments that all say the same thing. Quite simply, the legal power of these comments comes from your own circumstances, lived experiences, and expertise. 

I. What's this all about?

Obamacare Expanded Medicaid:
Medicaid is a health insurance program provided by each state in partnership with the federal government. The Patient Protection and Affordable Care Act (ACA), also known as Obamacare, expanded Medicaid to let states provide coverage to citizens whose income is from 100% to 138% of the Federal Poverty Level. These adults are known as the "expansion population."

This is how little money we're talking about:

Republicans desperately want to undo this expansion of health care. That's why we spent last spring and summer fighting like hell in Congress to protect Medicaid – and we succeeded. So Trump signed an Executive Order directing the Department of Health and Human Services (HHS) and the agency within HHS responsible for Medicaid, the Centers for Medicare and Medicaid Services (CMS), to undermine the ACA.


Trump is Trying to Dismantle Obamacare:
Trump's CMS told states it would approve Medicaid waivers that permit states to take Medicaid away from hundreds of thousands, if not millions, of people. Medicaid waivers are a tool included in federal law to allow experimentation to improve Medicaid. But the Trump administration is trying to use them to destroy Medicaid. (DJT and his cronies aren't great at following the law.)

Kentucky took Trump up on his offer and submitted a Medicaid waiver plan called "Kentucky HEALTH." The Trump administration approved it. Among other cruel provisions, the waiver lets Kentucky take health care away from people who aren't able to:

  • work 80 hours per month;
  • pay premiums as they struggle to stay out of severe poverty; or
  • file paperwork within 10 days of any change in their job (hours, pay, etc.)

It's a terrible plan that Kentucky itself estimated would cause 95,000 Kentuckians to lose Medicaid coverage. 

II. Why Comment on These Changes?

Commenting Can Help Stop Trump's Attack on Medicaid:
We're submitting official comments to CMS to help stop this travesty.

Let's be real: no matter how brilliant your comment, no matter how persuasive your story, no matter how compelling your reasoning, Donald Trump isn't going to stop attacking Medicaid. But we're not trying to change his mind, or the mind of anyone who works for him.

The National Health Law Program, the Kentucky Equal Justice Center, and the Southern Poverty Law Center sued on behalf of Kentuckians to stop Kentucky HEALTH from going into effect. And a federal court – relying heavily on the comments that were submitted to CMS – ruled that the Trump administration's approval of Kentucky HEALTH was defective.

CMS has decided to try again. As part of this 'do-over' CMS must accept a new round of comments. We're going to make sure that when CMS approves this damn waiver for a second time, and they get sued over it for a second time, the record shows comments overwhelmingly opposed to this disastrous plan. 

We're commenting because it will make a difference in court. 

Why should you listen to me?
Lawyers are trained to work with regulatory materials - read, understand, comment on. (Although I am not your lawyer.) And this particular lawyer focuses on health care and health care adjacent issues. In other words, I'm an expert. 

But you don't have to rely on me, here are the main publicly available sources that inform my approach to commenting:

The Art of Commenting: How to Influence Environmental Decisionmaking With Effective Comments, 2d (support of patrons allowed me to purchase my own copy)
HHS Regulations Toolkit
Tips for Submitting Effective Comments - Regulations.gov [pdf]

I've also spent several hours reading through the filings, briefs, and Memorandum Opinion in Stewart v. Azar.

III. How to Comment Effectively

This is not a comprehensive guide to commenting. This post is rather narrowly aimed at commenting on the Kentucky HEALTH Medicaid waiver pending before CMS. 

A. Organizational Tips:

1. Use heading and subheadings
Make your comment as user-friendly for the reader as possible by using headings and sub-headings as sign-posts to guide your reader through your points.

2. Topic sentences
Don't hide the ball. Your reader should be able to understand the crux of your comment from the first sentence of each paragraph.  

3. Tell, don't ask questions
Make statements, don't ask questions. Questions leave the reader with wiggle-room. If the text is unclear or ambiguous, say so.

4. Be persuasive
Obviously, belligerence or snark aren't likely to persuade the reader. But real world examples are immensely powerful. (If you're a clinician, they can be generic examples that don't violate any particular patient's right to privacy.)

5. If applicable, start with your qualifications
Do you have relevant qualifications? Are you a health care provider? Do you live with a chronic illness? Are you covered by Medicaid? If you have relevant qualifications, expertise, or experience tell them to CMS right up front, at the beginning of your comment. You're not bragging, you're establishing your credibility to maximize your effectiveness as an advocate.

B. How do you submit a comment?

1. Go to https://public.medicaid.gov/connect.ti/public.comments/viewQuestionnaire?qid=1897699

2. Click on "Answer the Questionnaire." 


3. Either enter your comment in the text box (must be fewer than 2500 characters)

4. Or upload your comments as a pdf (this is the option I recommend)
First click on "Attach files" then "Choose files"

5. Complete the form and "Finish." 

Keep in mind comments are public.

C. Facts Matter

"When the law is on your side, argue the law. When the facts are on your side, argue the facts. When you have neither, pound the table." 

If you're a legal expert and you've got a legal argument to make, what are you doing here? Go make it! You don't need me. Everyone else...

In the next section I'll tell you exactly what the court will be looking for when it reviews the Kentucky HEALTH plan again, and which facts matter.

IV. Your Comment: What To Write

This section is organized into four parts:

  • A: what does the court care about; 
  • B: the worst provisions of Kentucky HEALTH; 
  • C: what to write as a person who gets health care; and
  • D: what to write as a person who provides health care

A. What does the court care about?

The Kentucky HEALTH waiver can't be at odds with the fundamental purpose of the Medicaid law. So the legal fight in this case comes down to one central issue:

The purpose of Medicaid is:
(1) to provide medical assistance
(2) by paying for medical care and services
(3) for the people Medicaid covers.

Do these new waiver provisions further the objective of paying for medical care and services for the Medicaid expansion population?

That's the question at the heart of this case, the question that determines whether Trump can rip Medicaid away from 95,000 people in Kentucky (and then move on to attacking Medicaid in Alabama, Arizona, Arkansas, Indiana, Kansas, Maine, Mississippi, New Hampshire, North Carolina, Ohio, Oklahoma, Utah, and Wisconsin). 

Our comments should focus on one (or both) of these two questions:

1) Will the waiver cause Medicaid beneficiaries to lose coverage?
2) Will the waiver help those who aren't covered by Medicaid to get Medicaid coverage?

B. The worst provisions of Kentucky HEALTH
In my opinion, these are the most problematic aspects of the Kentucky HEALTH Medicaid waiver:


Work requirement (work or die):
In order to be keep Medicaid coverage, Kentuckians must spend at least 80 hours per month on qualifying activities:

  • employment;
  • job-skills training;
  • education;
  • community service; or
  • participation in SUD treatment
Will taking Medicaid away from everyone who isn't employed or in school for 80 hours per month cause people who are covered by Medicaid to lose Medicaid coverage?

(I know it sounds absurd when put so simply. But the Trump administration argued that by threatening to take Medicaid away, it will 1) force people into at least 80 hours of employment per month 2) employment is good for health so 3) therefore this work-or-die requirement makes people healthy.)


Monthly premiums (pay up or die):
Charging money for Medicaid coverage.

Many people in the expansion population have income that is 100% to 138% of the federal poverty line. Will charging everyone in that group a monthly premium, and kicking them off of Medicaid for six months if they don't pay the premium, cause people who are covered by Medicaid to lose Medicaid coverage?


Limits on non-emergency medical transportation:
Kentucky doesn't have to provide non-emergency medical transportation to and from medical appointments for the expansion population. 

Will refusing to transport Medicaid beneficiaries to non-emergency medical appointments help Kentucky provide medical care and services to people covered by Medicaid?


Reporting requirements:
If you don't report changes in income or circumstances that affect Medicaid eligibility within 10 days, you will be locked out of Medicaid for six months.

A change in "circumstances that affect Medicaid eligibility" includes something as simple as a bigger paycheck one week because your job made you work an extra shift. So if someone covered by Medicaid doesn't report that they picked up an extra shift last week, they will be kicked off of Medicaid for six months. Will that cause people who are covered by Medicaid to lose their coverage? 

C. Your comment - person who gets health care:

DO: Keep in mind, comments are public.

DO: Focus on the harms that any (or all) of the waiver provisions will do to you (or someone in your shoes).

DON'T: Suggest exemptions or carve-outs. We are not throwing anyone under the bus, we are not providing any excuses to CMS to take health care aware from anyone.


I recommend a straightforward format for your comment: 

Paragraph 1:
Who are you? Any relevant lived experience / expertise you have.
Paragraph 2:
[Waiver provision] would harm me because [description of how it would harm you]
(optional: repeat paragraph 2 with as many different waiver provisions as you want to discuss)


What kinds of harms are we talking about? Here are some questions you might think about:

● Are you an hourly employee? Do your hours vary from week to week or month to month? Do your wages include tips? Would you be able to file paperwork within 10 days of every change to your job? Would your own (chronic?) illness make that more difficult? Would any childcare or care-taking responsibilities you have make that more difficult?

● If your income is between 100% and 138% of the federal poverty level, do you have spare cash to pay Medicaid premiums? Or are you barely getting by? If you have a chronic illness and/or disability, can you even afford all of the things insurance doesn't pay for? Where would money for Medicaid premiums come from? Will you still be able to pay your utility bills? Or are you going to have to choose between, let's say, rent and healthcare?

● Are you able to get to Medical appointments? Or would taking non-emergency medical transportation away make it more difficult (or impossible) for you to get to your physicians / infusions / labs / dialysis? 

● If you don't file the required paperwork within 10 days (or you do file it and it's mishandled) what would being locked out of receiving health care for six months mean for you? Do you have a chronic illness? Would it progress, perhaps doing irreversible damage over those 6 months? Ultimately, both harming your quality of life and making it more expensive to treat you once you were let back on to Medicaid?  

Please don't suggest exemptions or carve-outs. We are not throwing anyone under the bus, we are not providing any excuses to CMS to take health care aware from anyone.

Example Comment (someone covered by Medicaid)
:
My name is Matthew Cortland. I have an Inflammatory Bowel Disease. I have lived with IBD for decades. I am covered by Medicaid.


(hypothetical example of how the 10 day paperwork could hurt me)
Inflammatory Bowel Disease often flares unexpectedly. I do not have control over when my disease will flare. I do not have control over how severe a flare will be. Because of the severity of my disease, during a flare my income is likely to drop because I will not be able to work. But because during a flare my disease is very severe, I also wouldn't be able to turn in paperwork about my change in income within 10 days. This ten-day-paperwork requirement would cause me to lose my Medicaid coverage, making me even sicker.


(hypothetical example of how the premium could hurt me)
Inflammatory Bowel Disease is very expensive to live with. Not even all of my prescriptions are covered by Medicaid. I must purchase them out of pocket. I am left with very little money to live on. I cannot afford a Medicaid premium. I would be unable to pay a Medicaid premium. I would lose Medicaid as a result. Without my doctors and medications I would get even sicker.

(hypothetical example of how the work requirement could hurt me)
My hours at work are often unpredictable. Some weeks my job cuts my hours without giving me any warning. As a result, some months I work less than 80 hours. I have been looking for a full-time job for 6 months without any success. If I lose Medicaid, I would get sicker and be unable to work at all.


Example Comment (someone not covered by Medicaid):
My name is Halley Cloche. I have chronic migraine. I have lived with chronic migraine for 25 years.  

(hypothetical example of how the 10 day paperwork could hurt me)
Chronic Migraine means that I have migraine for at least 15 days per month. Although I am able to work as a bakery assistant, since my job is to work with dough, I am not able to use a computer or phone on days that I have migraine. I would not be able to report changes to the hours I work each week, my hours change frequently depending on the schedule my boss gives me.

(hypothetical example of how 'no transit' could hurt me)
On days when I have a migraine, I am unable to safely drive. The lack of public transit in the rural county in which I live, means that I am unable to get myself to medical appointments. If I cannot get to medical appointments, I will not make any progress in working to reduce my migraine load.

If you have questions or would like help with your comment, you can comment here or @ me on twitter 

D. Your comment - person who provides health care:

Keep in mind, comments are public.
Paragraph 1: Who are you? Relevant lived experience / expertise you have. 
[As health care providers, you're experts – let the reader know. Do you have a medical degree? Are you board certified? Fellowship trained? Have you been providing nursing care as an RN for 10 or 12 years? Are you the MSW who has to help families navigate Medicaid eligibility issues? Whatever your qualifications, tell them to CMS right up front, at the beginning of your comment. You're not bragging, you're establishing your credibility to maximize your effectiveness as an advocate for your patients.] 
Paragraph 2: [Waiver provision] would harm my patients because [description of how it would harm them].  

How would taking Medicaid away from your patients who don't work at least 80 hours a month help you provide medical care and services to them?

How would taking Medicaid away from your patients whose income is between 100% and 138% of the federal poverty level but who can't afford to pay premiums for Medicaid help you provide medical care and services to them?

How would taking away non-emergency medical transportation away from your Medicaid patients help you provide medical care and services to them? 

How would punishing your patients covered by Medicaid by kicking them off of Medicaid, and locking them out of Medicaid for six months, if they don't file paperwork within 10 days, help you provide medical care and services to them?  

Please don't suggest exemptions or carve-outs. We are not throwing anyone under the bus, we are not providing any excuses to CMS to take health care aware from anyone.

If you'd like any level of assistance with commenting, I am more than happy to help. I can be reached here or on twitter. 
Thanks for all of the work you do. 
Tier Benefits
Recent Posts