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OpEdNews Op Eds    H2'ed 9/8/11

Son-of-a-glitch: The bi-partisan selling of Medicaid

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Hawaii's governor, the first Democrat elected in eight years, has publicly defended his decision to segregate the state's Medicaid population as second class citizens.

Like Obama, Neil Abercrombie rode to victory last November on a great tide of hope for the future.  And like Obama, he has apparently decided to side with Big Business against the civil rights of his voters.

There is something called "Federal Supremacy."  Federal law is the "supreme law of the land", and states cannot limit legal rights defined by federal law.

One practical result is that children as well as adults with disabilities have the ability to appeal life-threatening denials of medically necessary services by their Medicaid plan.  The majority of cases that reach this level involve children of all ages with disabilities, fighting for the right to live at home rather than in institutions.  These home medical services are expensive, although less than what the state would pay for institutionalization.

In May, the White House unexpectedly pushed through an amicus ("friend of the court") brief with the Supreme Court, taking the position that the protections of Federal law do not extend to Medicaid beneficiaries.

Disability law experts like Sara Rosenbaum and Simon Lazarus immediately warned of the potential "spill-over effect" if beneficiaries of the country's "safety net programs" like Medicaid were suddenly denied the protections of the court. 

Governor Abercrombie's comments were made during an August 22 meeting called to explain why he signed a piece of legislation eerily similar to that amicus brief.

Hawaii's S.B. 1274, signed by the Governor in July, accomplishes exactly what Lazarus warned of:  it carves out the state's entire Medicaid population (270,000) and denies them access to the protections of federal law. 

The Governor openly admitted the purpose of SB 1274 was saving the state's Medicaid contractors money on legal fees.   Patterns of Medicaid providers violating federal regulations (and civil rights) he dismissed as mere "glitches".  (More information about SB 1274 as well as a link to a recording of the Governor's comments can be found here.)

The crux of SB 1274 was to repeal a state law enabling patients to challenge health insurers' denials of care, and to be represented by an attorney in the process.  The law required health insurers to pay the legal costs of the patient's appeal when the company refused to approve medical treatments ordered by a doctor.

Seventy percent of Hawaii's Medicaid budget is paid out to two publicly traded contractors, Unitedhealth and Wellcare.  The two share a lucrative $1.2 billion a year contract to provide services to 40,000 children and adults with disabilities. Premiums are calculated individually, and because these contracts are specifically to cover home services for people with disabilities, monthly premiums can range as high as $27,000 for, say, a medically fragile child. 

Publicly traded Medicaid (and Medicare) HMOs make shareholder profits by not spending premium money on medical expenses.  Since the size of the Medicaid pie is the same it was before they bought the contract, services have to be cut twenty to fifty percent to support corporate profits.

State contracts with Medicaid providers like Unitedhealth and Wellcare must be approved federally (through CMS, the Centers for Medicare & Medicaid Services, part of DHHS).  They mandate compliance with all state laws.  Unitedhealth and Wellcare  knew about Hawaii's healthcare laws when they signed the contract, but apparently did not realize what they would cost them.

Only one thing is accomplished by deleting a state law requiring insurance companies to reimburse patients' legal bills in disputes over medical care.  It allows the company to slash services in order to increase profits, without worrying that patients have the ability to challenge them effectively. 

In Hawaii, it got the publicly traded companies out from under the mounting legal bills incurred defending against life-threatening cuts in services, most of them victimizing children and seniors. 

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I'm the mom of a 12 year old with multiple severe disabilities. Since April 2009 I've been blogging about the medical civil rights of children as well as adults with disabilities. As state budgets reacted to the larger economic picture, the (more...)
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