As has been reported, Mark Parkinson, president and CEO of the American Health Care Association/National Center for Assisted Living, has expressed optimism that the Centers for Medicare & Medicaid Services might require states to provide adequate Medicaid payments.
Were this to occur, it would fulfil the premise of a 5-4 US Supreme Court decision from 2015.
In that split-decision, the Court overturned lower courts in an Idaho case and ruled that no private right of action exists for Medicaid providers to enforce a statutory requirement that Medicaid payments ensure “quality of care” and care availability. The majority left the determination of state payment adequacy entirely to the federal government, through the secretary of the Department of Health and Human Services – a determination that is delegated to CMS.
Procedurally the decision was interesting, as Justice Breyer, a Democratic appointee, sided with the majority, while Justice Kennedy, appointed by President Reagan, joined the dissent. Breyer, in his concurring opinion, deemed Medicaid rate-setting too complex a field for judges to interfere with, which was puzzling as judges resolve matters far more complicated. Yet the alternative has been toothless oversight, with CMS rubber-stamping all rates, no matter how egregiously inadequate, presented to it in the form of what are called state plan amendments. This has effectively subverted a state and federal partnership, as the federal government pays no less than half of the Medicaid costs, and often more.
No state is forced to participate in the Medicaid program. Indeed, in upholding the Affordable Care Act, Chief Justice Roberts famously rejected compelled state Medicaid expansion under that law as “a gun to the head.” Thus, those states volunteering to participate in a program in which the federal government foots so much of the bill should expect some accountability.
In an amicus brief urging the Court to not take away the private right to enforce the federal statute, the American Medical Association and other health care provider groups had warned that “access to healthcare services remains unequal. The consequences can be fatal.”
In another amicus brief, disabilities groups noted that “[b]efore the injunction in this case, Idaho had not changed its payment rates for home- and community-based services since 2006, even though the state itself recommended that rates be increased substantially and the federal Center for Medicaid and Medicare Services (‘CMS’) approved that increase.”
By the state of Idaho’s own reported calculation, its payment rates were just over half of what it should have been paying, but Idaho lawmakers had balked at providing the funding the state sought.
Today there are nursing homes in the state of New Hampshire with wait lists of over 100 prospective residents, because those facilities lack the means, within Medicaid funding, to adequately staff to admit those awaiting care. Hospitals are jammed up with patients eligible for discharge to nursing homes, which is foreboding given that we can expect to see a fall and winter influenza and COVID-19 burden upon hospitals.
New Hampshire is not alone, as we see similar stories across the country. Yet states are legally required, as a condition of participation in the Medicaid program, to make available “nursing facility services (other than services in an institution for mental diseases) for individuals 21 years of age or older” who need them. How meaningful is this guarantee if nursing homes are turning away residents because CMS will not ensure state plan payment adequacy under its legal obligation to ensure “care and services are available under the plan”?
CMS has an absolute hammer when it comes to accepting, or rejecting, state Medicaid rates that it finds fail to substantially comply with federal law, as statutorily it “shall make no further payments to such State (or shall limit payments to categories under or parts of the State plan not affected by such failure).”
Particularly given its purported concern over nursing home care quality, is it not past time for CMS to exercise its authority by adopting bright-line rules for payment adequacy? Were it to do so, and ensure state funding exists to meet the federal government’s innumerable (and ever-growing) expectations for providers, those expectations would not seem as onerous.
Brendan Williams is the president and CEO of the New Hampshire Health Care Association.