Room 129 in the Capitol Annex was bursting at the seams before 10 AM on Tuesday, July 18. This was the time slated for the beginning of the Interim Joint Committee of Health and Welfare. Committee Chair Representative Addia Wuchner directed additional people wanting to get in to go to the overflow room, because the capacity of the hearing room had been reached. Most of the audience was there to voice their reactions to the “Operational Modifications of KY’s 1115 Waiver” (the Medicaid waiver) that the Commonwealth is planning to send to the Center for Medicaid Services (CMS) in Washington. Unfortunately, it would be three hours before the public comment hearing began.

The committee had a long agenda, and The Cabinet for Health presentation was the last item. After the presentation, the committee was to adjourn and the Cabinet would then conduct the public hearing on the proposed Medicaid waiver.

The first topic on the committee docket concerned SB450, a bill proposed in the 2017 term that would loosen restrictions on telemedicine as an attempt to better serve rural parts of the state that are suffering from an acute shortage of physicians. The next agenda item was a report on proposed legislation to improve training for people who work with children to familiarize them with the incidence of child abuse in the form of Shaken Baby Syndrome. Subsequent agenda items included legislation that would update Kentucky’s Medical Peer Review, a proposal for livable Home Tax Credits for people suffering from multiple sclerosis, and legislation to recognize and regulate home births in Kentucky.

It was 12:17 PM when the officers for the Kentucky Cabinet of Health were called to provide a report to the legislators on the proposed modifications to the original 1115 Medicaid waiver that Governor Bevin sent to CMS in Washington in August of 2016. The presentation and follow-up questions consumed nearly another 45 minutes.

In their presentation to legislators, the Cabinet Members explained the proposed changes and who would be covered by them. Two of the proposed “operational modifications” to the previous waiver from last year received the most attention in the hearing. A third change about not expanding the network of professionals for Medicaid referrals generated very little discussion.

The first “operational modification” would require non-disabled adults enrolled in the expanded Medicaid section to participate in 20 hours of volunteer work or community engagement if they are not already employed at least 20 hours a week. This requirement would begin three months after they enrolled in the program. Previously, the community engagement requirement began with 5 hours of required community engagement at three months with an additional five hours of community engagement required each three months until at 1 year, the requirement tops out at 20 hours. Adam Meier, Governor Bevin’s Deputy Chief of Staff for Policy, explained that the change was needed because volunteer agencies indicated that it was burdensome for them to provide volunteer or community engagement activities for people on a basis of less than 20 hours a week.

The second major proposed change was that enrollees would be locked out of Medicaid for failing to report a change of circumstance that would affect their eligibility or work/engagement requirements. The new proposal adds 6 month lock-out periods for committing Medicaid fraud, falsely reporting community engagement hours or employment, and failing to report within 10 days any changes of circumstance that would affect their Medicaid eligibility such as household composition, employment hours worked, or changes in pay.

A question and answer period with legislators on the Committee followed the Cabinet for Health’s presentation. Senator Steve Meredith contested the claim that the 1115 Waiver is about “kicking people out of the Medicaid.” He asked Meier, “Is it fair to see that this is to move people out of Medicaid and not to kick anybody off?” Meier’s answer highlighted “moving up” and “individual choice”.

A bit later Representative Jodi Jenkins began her line of questioning by asking for clarification about when the public comment hearing on would start. She said, ““I know that we have people outside who are waiting to speak on this. I know that as a legislator I have access to the Cabinet to act, but I want to know that the people who have traveled to be here to ask questions and make comments are afforded that chance. Is there going to be additional time after this committee adjourns?”

After an extended series of exchanges with Meier that clarified what participants would need to do to remain eligible, Jenkins said: “The other question I have, is there going to be a public awareness campaign for those who are eligible to know what the requirements are?”   Meier responded that enrollees would sign a rights and responsibilities statement, and that a communication subcommittee was developing protocols for informing enrollees.

A bit later, Mary Lou Marzian complained about how the public hearings were set up.
Cabinet members pointed out that the two public hearings on the “operational modifications” were voluntary. Secretary Glisson explained “it wasn’t required to get public comments, but we wanted to make sure that everyone has an opportunity to comment along the way.”

Representative Mary Lou Marzian objected to this characterization. She noted, “You had two public comment periods where people could come, Somerset and I guess here is the other one today. Why not in the two largest metropolises in the state, Louisville and Fayette County, and I guess in Owensboro too? Two public comment sessions for something that is going to affect 100,000 people. Oh, they can write in to some long address, but a lot of our folks don’t have computers at home. I guess they could go to a library, but then how are they going to take care of their kids?”

Meier responded, “We created geographic diversity making sure that we were spread out. And this is a long public comment period. We do allow for written comments via mail or email, and we also provide access to the presentation in Somerset.”

Once the public hearing finally started, a total of 19 people spoke. The speakers at the meeting included multiple people from Louisville, but other speakers came from further such as Berea, Georgetown, Prestonsburg, Shelbyville and Paducah. Three people spoke in support of the Operational modifications, 15 speakers opposed it, and one occupied an ambivalent middle ground. In addition, many people who had signed up to speak left early (e.g., five of the first ten people called were no longer present by the time the comment period began).

Four of the speakers had previously spoken at the Somerset public hearing on July 14, according to a Commonwealth Journal article written by Jeanie Slaven on the same date. All three speakers endorsing the waiver had also spoken at the Somerset hearing. Amy Luttrell spoke on behalf of Goodwill Industries of Kentucky and the Kentucky Workforce Innovation Board (KWIB). She said that the KWIB board endorsed the waiver “because we see that as a tool that can assist more people to be able to go into the workforce so that will make their lives better and also Kentucky needs that. But what made it possible for us to endorse the waiver is the fact that many populations have been excluded from these new work requirements including people who have a disability, people who are primary caregivers for a young child, and other people for whom work is not very realistic at the present time.” A bit later she added her perspective as the CEO of Goodwill: “We see many people every day who do in fact achieve this despite having multiple barriers and we believe that if Kentucky does a good job of implementing this waiver some very positive outcomes can be produced. This waiver gives us the opportunity to produce those kinds of outcomes as opposed to the current system which is a status quo and brings so many limitations with it. So, for that reason we also support this waiver.”

Dylan Gorski, a social worker, thought that the “My Rewards” part of the Kentucky Health Program could motivate many people to adopt a more healthy lifestyle and make proactive changes. However, he worried about how all of this would work on the ground, especially with regard to the lock-out periods. He noted that errors in the Department of Community Based Services are common and can take a long time to work out. Moreover, he was concerned what might happen if documents were lost or not received.

Representatives from organizations opposing the waiver included Kentuckians for Single Payer Health Care, the Multiple Sclerosis Society, the Kentucky Equal Justice Center, AARP, and the Kentucky Council of Churches. Comments representing some of the most common concerns appear below.

Harriet Seiler objected to the punitive nature of the waiver’s requirements for people on Medicaid. She said, “In my opinion the new modifications to the waiver application do not improve on the Cabinet’s desire to redesign Medicaid.   … In a way perhaps the new modifications can be likened to the expression often used of putting lipstick on a pig. The work and volunteer requirements will be burdensome to Medicaid enrollees who are already working. …. I object to the punitive clauses for those who fall behind, what you call a lockout, and that kind of goes with punitive as terminating as people fall behind in their premiums or those who report that they are making just a bit too much money now to be on Medicaid who haven’t reported any change in income.”

Mark McKinley from Louisville voiced concerns about the hidden costs of the program: “Also there have been some questions about what this is going to cost. I didn’t hear anything about that last summer when we testified and I didn’t hear anything about it today. But I was looking at Indiana, what they are doing with their work requirement, and Indiana public radio took a look at the cost for that. They said that the program will cost tens of millions of dollars annually just to implement this work requirement. They said that the Gateway to Work Program would add $90 per month for the estimated 133,000 participants under the Indiana plan to do. So I think we should simplify our system based on the problems that Benefind has had.”

Debbie McAfree of Louisville wondered how the operational modifications in the Medicaid waiver would affect people who had chronic illnesses. “Living with a chronic disease for many years, sometimes decades, I have had MS for over 20 years. It imposes a great financial burden on individuals and families whereby they are forced to spend down their earnings and savings. I have not been able to work since December of 2007. Access to affordable quality health care is vital for all of us, but especially for people living with MS as access to early diagnosis and treatment reduces lesions and new exacerbations, progression of disability, and probable reduction in future disease activity. Will the proposed reforms improve the health of Kentuckians and those Kentuckians living with MS like me?”

The meeting concluded at approximately 2:00, almost four hours after its announced starting point.

In discussion with reporters after the meeting, Secretary Vicki Yates Glisson was asked how she felt about the expressions of moral outrage by some waiver opponents. She responded, “I understand their position, I think they have every right to that, but I likewise feel very strongly that that we are doing the right thing for Kentucky, so it is very complex.” She also noted that she was sometimes frustrated because the public comment format of the hearing prevents her from clearing up misperceptions and fears that some people have about the proposed changes. Responding to a question about a millennial who was concerned that her attempts to obtain work would be disrupted if she lost her Medicaid coverage, Glisson said “She is trying to up her skills, that works for the community engagement and if she stays on Medicaid she is not going to lose her coverage. That is the hard part about the comment period, is that you hear folks say things and you want to say I don’t want you to worry, its okay.”

People who are interested in the contents of the waiver, and how it will be phased in, can find a summary of the proposed changes and an implementation timeline in this PDF file.

Written comments regarding the proposal will be accepted until 11:59 p.m. on August 2 via kyhealth@ky.gov or snail mail to:

Commissioner Stephen Miller
Department of Medicaid Services
275 E. Main St.
Frankfort, KY 40621

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Greg Leichty

Greg Leichty is a professor of Communication at the University of Louisville. His teaching and research interests are in the areas of conflict management and social movements. He has been involved in several social justice organizations in the Louisville area over the last decade.