 May 23, 2006 The Honorable Charles Grassley The Honorable Joseph Barton Dear Chairman Grassley and Chairman Barton: Over the past years, the undersigned organizations have worked with you and your staff on a number of very important issues regarding Medicaid. We appreciate the opportunity to work with you to ensure that the Deficit Reduction Act of 2005 (DRA) is implemented in the way the Congress intended. We are grateful for your previous efforts to clarify your intent regarding several provisions contained in the DRA and we urge you to swiftly move a technical corrections bill to address a number of inadvertent yet serious drafting errors contained in the DRA. With regard to Medicaid, technical corrections are necessary to (1) protect access to comprehensive Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) benefits for low-income children; (2) maintain current law cost sharing protections for those below the poverty level; and (3) appropriately exempt, as clearly intended by Congress, those already eligible for Medicare or those receiving Supplemental Security Income from new citizenship documentation requirements. While we remain concerned about the impact that the DRA will have on access to health care for our nation’s most vulnerable citizens, we are especially troubled that a number of drafting errors in the recently passed legislation could have unintended consequences, jeopardizing Medicaid coverage for millions of beneficiaries whom Congress intended to protect. Since states must implement the new DRA citizenship documentation requirement beginning July 1st, it is imperative that Congress clarify the intent of the legislation immediately. Please work with your colleagues to rapidly pass a technical corrections bill to fix the following drafting errors in the DRA: EPSDT and Benefits The DRA added a new section 1937 to the Social Security Act that allows states to substitute reduced benefit packages for Medicaid’s current benefit package, with one critical exception. As both of you have made clear in a recent letter to Secretary Leavitt, the DRA intended to preserve access by low-income children to comprehensive Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) benefits. However, the language of the new section could be interpreted in ways that are not consistent with this intent. In particular, EPSDT services are described in this new section as “wrap around benefits,” a concept that could be interpreted to reduce the comprehensiveness of EPSDT services. We do not believe that Congress intended this interpretation. Cost Sharing for Individuals Below the Poverty Line The DRA added a new section 1916A to the Social Security Act that sets out new state options for cost-sharing in Medicaid. Because of an unintended drafting error, a provision that would have left in place the prior cost-sharing for beneficiaries with incomes below the poverty line was mistakenly dropped. Thus the new section could be interpreted to allow unlimited cost-sharing and premiums for beneficiaries with incomes below the poverty line while limiting cost-sharing for beneficiaries with income above poverty. Again, we do not believe Congress intended this result. Citizenship Documentation The DRA also added a new Section 1903(x), which requires that, as of July 1st, all citizens provide proof of their citizenship in order to continue to receive Medicaid benefits or to qualify for benefits for the first time. There are no exceptions to this new rule, which will therefore apply to every child, pregnant woman, “dual eligible” senior citizen or person with a disability who qualifies for both Medicare and Medicaid, and all other Medicaid beneficiaries and applicants. The DRA contains a serious unintended drafting error that concerns the citizenship documentation of senior citizens and individuals with disabilities who are “dual eligibles” and those who are receiving Supplemental Security Income (SSI) benefits. The DRA uses the word “alien” instead of the word “individual” in one key place. As a result, if the error is not fixed, states will not be able to carry out Congress’s clear intent to exempt seniors and people with disabilities participating in Medicare and/or SSI from proving their citizenship. All of the drafting errors described here, although inadvertent, present serious threats to Medicaid beneficiaries and applicants – yet all can be addressed with simple technical corrections. Yet with the July 1st implementation deadline for the citizenship provision just eight weeks away, we are concerned that there is no sign of a technical corrections bill moving in the Congress. We greatly fear that some states will not be able to document the citizenship of these groups, and that very poor and vulnerable elderly and disabled individuals could lose their Medicaid benefits as a result. Clarifying Congress’s intent with regard to cost sharing and benefits is also essential as states begin to implement the DRA. Finally, as CMS develops implementing guidance on the new citizenship documentation requirement, we ask that you encourage Health and Human Services Secretary Michael Leavitt to use the authority provided to him by the Congress to broadly define the range of documents that states may use to document citizenship. This type of flexibility is especially important to protect access for particularly vulnerable Medicaid applicants and beneficiaries who may lack traditional documents, e.g., Native Americans, survivors of hurricanes Katrina and Rita, children in foster care, those with mental illnesses, and people with cognitive disabilities or others with disabilities who may have lived for some time in institutions. Secretary Leavitt should use this flexibility to craft a list of acceptable documents and procedures that will avoid disruption of streamlined Medicaid application and renewal procedures. We look forward to working with you to correct the problems described here and to assure that states are able to implement DRA provisions in accord with Congress’ intent. cc: The Honorable Max Baucus, Ranking Member, Senate Finance Committee Sincerely, |