States have a lot of flexibility in the way they design their Medicaid programs. That flexibility extends to Medicaid expansions.

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1 Medicaid Medicaid Expansion Debates and the Waiver Process: Timeline for State Advocate Engagement ISSUE BRIEF / MAY 2015 MEDICAID EXPANSION DEBATES AND THE WAIVER PROCESS: TIMELINE FOR STATE ADVOCATE ENGAGEMENT 1

2 States have a lot of flexibility in the way they design their Medicaid programs. That flexibility extends to Medicaid expansions. More states that are expanding Medicaid are looking at expansion approaches that make changes that will require approval from the Centers for Medicare and Medicaid Services (CMS), usually through a Section 1115 demonstration waiver. While a state considers expanding Medicaid and works its way through the waiver process, there are many opportunities for advocates to get involved and influence how the program looks: very early on as legislation is being formulated and debated, throughout the waiver drafting and approval process, and even after the program is up and running. This timeline shows where you can have input and lists items for you to consider at each step of the process. There are multiple points where you can influence the process take advantage of as many as you can. NOTE: The notice and comment requirements apply to all new Section 1115 Medicaid and CHIP waiver proposals, as well as extensions, but not to amendments to existing waivers. However, for Medicaid expansion waivers, CMS has been requiring notice and comment periods for amendments. To learn more about Medicaid expansion waivers, see: State Plan Amendments and Waivers: How States Can Change Their Medicaid Programs, online at org/product/state-plan-amendmentsand-waivers-how-states-can-change-theirmedicaid-programs. The ACA and Medicaid Expansion Waivers, online at brief/the-aca-and-medicaid-expansion- waivers/. Several states are deciding whether to expand their Medicaid programs. Many of them are considering changes that would require approval from the Centers for Medicare and Medicaid Services (CMS), usually through a Section 1115 waiver. This brief describes the points at which advocates can have input into the waiver process and lists items they should consider at each step of the process. ISSUE BRIEF / MAY

3 1 Before Your State Drafts Its Legislation or Proposal Even before your state has finalized its waiver proposal, you can take several steps to prepare to provide input on that proposal. Check with other states. It is important to be aware of what other states are doing, because one state s policies can be picked up by other states. Call advocates in other states to see how they addressed proposals that were harmful to consumers. Look at what CMS has done. Educate yourself about what CMS has and hasn t approved in terms of Medicaid expansions. Check with advocates in states where harmful proposals were not approved and see what their advocacy strategies were. Get ready to advocate. As soon as decision makers start discussing program changes, prepare to advocate against harmful proposals and to encourage your state to adopt good ones. Stay unified. If you re facing a tough political climate, you need to stand with other groups supporting the expansion. That may mean sticking with a simple message, such as extend coverage or close the coverage gap, and avoiding details that can divide the coalition until there is a clear path to expansion. Even then, you ll need to assess the situation and decide whether to publicly push back against certain proposals or address them privately in discussions with decision makers. 2 As Policymakers Are Formulating the Legislation Medicaid expansion will most likely require legislation. Keep out items CMS may not approve. If final legislation requires Medicaid changes that CMS cannot legally approve, the state may not be able to implement the expansion without going back to the legislature to change the law. Make the program as consumer-friendly as possible. Work with state legislators while they are drafting expansion legislation to try to omit provisions that would harm consumers. Engage the press. Get the press involved to let legislators know people are watching. Use personal stories to illustrate how certain legislative provisions will affect a legislator s constituency. MEDICAID EXPANSION DEBATES AND THE WAIVER PROCESS: TIMELINE FOR STATE ADVOCATE ENGAGEMENT 3

4 3 Before the State Sends Its Waiver Application to CMS While the state is drafting the waiver, if you have a good relationship with the state Medicaid agency, work with them. Help make sure the waiver is good for consumers. If you have a good relationship with the state Medicaid director or others in the agency, work with them to make sure that the waiver outlining the expansion program is as good for consumers as it can be while still complying with the legislation. Before the state submits a new Section 1115 waiver to CMS, it must provide a 30-day comment period on the application. Submit comments. Submit a letter commenting on the waiver proposal. Work with other groups to submit as many comment letters as possible. Volume matters. The more letters your state receives, and the more these letters echo similar issues, the harder it will be for the state to ignore your concerns, and the easier it will be for CMS to push the state to incorporate your concerns into the final waiver. It is okay to collaborate with other groups and submit a combined letter, but try to get as many groups and individuals as possible to submit their own comments separately. Talk to the press. The press can help make the public aware of the comment process and publicize any harmful aspects of the waiver proposal. If your group has collected personal stories from people who would be affected by provisions that are harmful to consumers, use those stories to drum up more press interest. The state must conduct at least two hearings in two different locations on two separate dates at least 20 days before submitting its application to CMS. Get the press involved. Make sure members of the press know about the hearings and cover them. Drum up attendance. Let as many people as possible know about the hearings so they can attend and raise their concerns. Focus on those who care about health care issues and/or Medicaid. Engage as many different groups as possible. Try to get different groups involved in the process, including hearings. It is hard for the state to ignore an opinion when many kinds of groups are saying the same thing. To read our comments on Medicaid expansion waivers, see our short analysis, Medicaid Expansion Waivers, online at familiesusa.org/product/statemedicaid-expansion-waivers. MEDICAID EXPANSION DEBATES AND THE WAIVER PROCESS: TIMELINE FOR STATE ADVOCATE ENGAGEMENT 4

5 4 After the State Sends Its Waiver Application to CMS Once CMS has determined that the application is complete, there is a 30-day federal comment period when advocates can submit comments directly to CMS. Raise any concerns about state transparency. Let CMS know if your state didn t follow the requirements to keep the public informed and make the waiver process transparent (for example, by having public notice and comment periods, following the rules for hearing requirements, and providing easy online access to the draft waiver). Raise concerns if the state did not address your comments. Tell CMS if you think your state did not adequately address the comments you submitted during the state comment period. States are required to respond to all comments they receive during hearings in the state comment period and must explain to CMS how they addressed those comments in their proposed waiver. Take the opportunity to express your concerns again. This is an opportunity to express your concerns to a different audience, so take that opportunity. 5 After CMS Has Approved the Waiver The state must hold a public forum within six months after the waiver implementation date and annually thereafter. Keep CMS apprised of problems. Advocates can submit complaints on the waiver demonstration to CMS for review at any time, not just during the public forum. CMS must hold periodic evaluations. The state must submit implementation reports to CMS. Use public data to let residents and CMS know how the program is going. Engage universities and other state research groups to evaluate the program and publish results. Time any publicity around the required state evaluation reports and other key dates in your state. Work with providers and others to track the waiver s impact. Advocates can work with provider groups and the Medicaid department to track the waiver provisions impact on access to care. MEDICAID EXPANSION DEBATES AND THE WAIVER PROCESS: TIMELINE FOR STATE ADVOCATE ENGAGEMENT 5

6 A selected list of relevant publications to date: State Medicaid Expansion Waivers (April 2015) A Tale of Two States: Decisions about Extending Medicaid Can Drastically Affect Residents Lives (April 2015) Medicaid Expansion Helps Low-Wage Workers (February 2015) For a more current list, visit: Publication ID: MCD This publication was written by: Andrea Callow, Senior Policy Analyst, Families USA The following Families USA staff contributed to the preparation of this material (listed alphabetically): Dee Mahan, Director of Medicaid Advocacy Evan Potler, Art Director Ingrid VanTuinen, Director of Editorial 1201 New York Avenue NW, Suite 1100 Washington, DC info@familiesusa.org facebook / FamiliesUSA twitter Families USA 2015