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Giving Voice to Medicaid: Waivers, Public Comments and Kentucky's “Secret Sauce”
Published online by Cambridge University Press: 06 January 2021
Abstract
In the 21st century the opportunity for the public to comment to an administrative agency typically means an invitation to go to a website, type words into a box, and hit send. Many advocacy groups provide templates for people to submit a statement in support or opposition to specific proposals. However, standardized comments do not capture the voice of Medicaid. They do not share people's personal experiences and insights. This article describes how consumer advocates in Kentucky devised a strategy, their Secret Sauce, to help consumers participate in the public comment process that is now required for Section 1115 Medicaid demonstration waiver applications. It shows how advocates can help real people's voices be heard in the public comment process, not through templates but through a process that assists people to tell their own stories in their own words. This is Medicaid's voice, the stories of real people who rely on Medicaid. Medicaid's voice can help policy makers understand the real-life impact of policy choices they make. It can also provide relevant evidence for courts reviewing the Secretary's grant of a Section 1115 waiver. Medicaid's voice can also help build political momentum, bringing those who rely on Medicaid to the polls and into the political conversation about the future of Medicaid.
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- Copyright © American Society of Law, Medicine and Ethics and Boston University 2019
Footnotes
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Chief of Staff, Kentucky House Democratic Caucus, former Health Law Fellow, Kentucky Equal Justice Center. The author was counsel for plaintiffs in Stewart v. Azar. The lawsuit challenging CMS's approval of Kentucky's Section 1115 waiver imposing work requirements and other barriers to Medicaid eligibility.
††
Jane and Bruce Roberts Professor of Law, Saint Louis University School of Law Center for Health Law Studies. The author is one of the deans, chairs and scholars who submitted two briefs in support of plaintiffs in Stewart v. Azar and comments as part of the public comment process described in this article.
References
Thanks to Emily Goeke for research and editorial help.
1 Stewart v. Azar, 313 F.Supp. 237, 263 (D.D.C. 2018) (citing Administrative Record at 3486).
2 Robin Rudowitz, Rachel Garfield & Elizabeth Hinton, 10 Things to Know about Medicaid: Setting the Facts Straight, Kaiser Family Found. (Mar. 2019), http://files.kff.org/attachment/Issue-Brief-10-Things-to-Know-about-Medicaid-Setting-the-Facts-Straight. [https://perma.cc/H2AW-WQQF]
3 Id
4 MaryBeth Musumeci et al., Re-approval of Kentucky Medicaid Demonstration Waiver, Kaiser Family Found. (Nov. 29, 2018), https://www.kff.org/medicaid/issue-brief/re-approval-of-kentucky-medicaid-demonstration-waiver/ [https://perma.cc/2K7G-3RGR].
5 KEJC's successful advocacy includes a lawsuit that successfully challenged nursing home cutoffs in 2003, legislative successes on human trafficking and mortgage lending, and innovative litigation to collect wages due workers.
6 The dedicated and talented staffers include Emily Beauregard, now Director of Kentucky Voices for Health; Alden Jones, a doctoral candidate in higher education at the University of Texas in Austin; and Cara Stewart, the co-author of this article and former Health Law Fellow at KEJC.
7 42 U.S.C. § 18031(d)(6) (2010).
8 See Sarah Kliff & Byrd Pinkerton, Interview: Former Gov. Steve Beshear Explains How He Sold Deep-Red Kentucky on Obamacare, Vox (Feb. 2017), https://www.vox.com/policy-and-politics/2017/2/27/14725782/steve-beshear-kentucky-obamacare [https://perma.cc/BD2M-WBSJ] (explaining how consumer attitudes toward the federal government shaped the decision to create a state-based Marketplace).
9 Kentucky's state-based Marketplace was branded “kynect marketplace,” with no capitalization.
10 Rebecca Gourevitch & Benjamin D. Sommers, Medicaid Expansion in Kentucky: Early Successes, Future Uncertainty, Commonwealth Fund (July 8, 2016), https://www.commonwealthfund.org/blog/2016/medicaid-expansion-kentucky-early-successes-future-uncertainty [https://perma.cc/42JA-85HJ]; What's at Stake in the Future of the Kentucky Medicaid Expansion?, Kaiser Family Found. (July 7, 2016), https://www.kff.org/medicaid/fact-sheet/whats-at-stake-in-the-future-of-the-kentucky-medicaid-expansion/ [https://perma.cc/WU8A-B25V]; Jesse Cross-Call, Assessing Kentucky's Pre-Waiver Medicaid Expansion Success, Ctr. on Budget and Pol'y Priorities (Jan. 16, 2018), https://www.cbpp.org/blog/assessing-kentuckys-pre-waiver-medicaid-expansion-success [https://perma.cc/VC4J-C4LJ].
11 Gourevitch, supra note 12; Kaiser Family Found., supra note 12; Cross-Call, supra note 12.
12 Gourevitch, supra note 12; Kaiser Family Found., supra note 12; Cross-Call, supra note 12. As the cited sources note, the ACA has provisions for marketplace outreach, assistance, and a “no wrong door” application process. Consumer engagement helped Kentucky design processes that made these provisions especially effective in Kentucky.
13 Matt Ford, An Upset in Kentucky, Atlantic (Nov. 4, 2015), https://www.theatlantic.com/politics/archive/2015/11/kentucky-governor-race-bevin/414055/. [https://perma.cc/8XZV-T36S]
14 Id.; Jim Barnes, 2015 Election Analysis: How Begin Won in Kentucky, Ballotpedia (Nov. 4, 2015), https://ballotpedia.org/2015_Election_Analysis:_How_Bevin_Won_in_Kentucky. [https://perma.cc/QG7M-5YH4]
15 Barnes, supra note 16.
16 Alex MacGillis, Who Turned My Blue State Red? N.Y. Times (Nov. 20, 2015), https://www.nytimes.com/2015/11/22/opinion/sunday/who-turned-my-blue-state-red.html [https://perma.cc/Y7N6-QES3].
17 Liz Hamel, Mira Norton & Mollyann Brodie, Survey of Kentucky Residents on State Health Policy, Kaiser Family Found. (Dec. 11, 2015), https://www.kff.org/health-reform/poll-finding/survey-of-kentucky-residents-on-state-health-policy/ [https://perma.cc/J9QK-SNJ8].
18 See Bevin Announces First Steps Toward Medicaid Expansion Changes, WFPL News (Dec. 30, 2015), https://wfpl.org/bevin-announces-first-steps-toward-medicaid-expansion-changes/ [https://perma.cc/LTT2-EHCN]; See also Abby Goodnough, Poll Finds Kentuckians Split with Gov. Matt Bevin on Expanded Medicaid, N.Y. Times, (Dec. 11, 2015), https://www.nytimes.com/2015/12/11/us/poll-finds-kentuckians-split-with-gov-matt-bevin-on-expanded-medicaid.html [https://perma.cc/SC53-3UK6] (“I do not intend to re-enroll people at this same level going forward.”). The Bevin Administrations also dismantled the Kentucky's coveted kynect marketplace. Kentucky still has a state-based Marketplace, but it now relies on the HHS web platform, Healthcare.gov. The state no longer uses the highly successful kynectcare mobile app and website. See Kentucky Health Benefit Exchange, https://kyhbe.ky.gov (last visited Apr. 29, 2019) [https://perma.cc/P77U-M6GP].
19 See generally 42 U.S.C. §1396(b) (2014).
20 42 U.S.C. §1396(b)(2)(B)-(H) (2014).
21 See id.
22 The Social Security Act contains three provisions authorizing the Secretary of HHS to waive provisions in the Medicaid. See Social Security Act of 1935, Pub. L. No. 74–271, § 1115, 49 Stat. 620 (codified as amended at 42 U.S.C.A. § 1315(a)(2014)) [hereinafter Section 1115 of the Social Security Act] (indicating Section 1115 of the Social Security Act gives the Secretary of Health and Human Services limited authority to waive Medicaid statutory requirements found in Section 1902 of the Social Security Act); see also Social Security Act of 1935, Pub. L. No. 74–271, § 1915(c), 49 Stat. 620 (codified as amended at 42 U.S.C. § 1396n(c)(1) (2012)) (noting Section 1915(c) of the Social Security Act gives the Secretary authority to waive statutory and regulatory provisions to operate home and community-based long-term care programs); Social Security Act of 1935, Pub. L. No. 74–271, § 1915(b), 49 Stat. 620 (codified as amended at 42 U.S.C. § 1396n (2012)) (noting states can also obtain waivers to expand programs under Section 1915(b) waivers).
23 See Social Security Act of 1935, Pub. L. No. 74–271, § 1902(a)(10)(A)(i)(VIII), 49 Stat. 620 (codified as amended at 42 U.S.C. § 1396a (2012)). For 2019, eligibility is determined according to the 2018 federal poverty guidelines and the statute provides for a 5% income disregard bringing the effective eligibility level to 138% of poverty; See Federal Poverty Guidelines, Families USA (July 2018), https://familiesusa.org/product/federal-poverty-guidelines [https://perma.cc/A9QT-4863].
24 See Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 587 (2012).
25 See Status of State Action on the Medicaid Expansion Decision, Kaiser Family Found., https://www.kff.org/health-reform/state-indicator/state-activity-around-expanding-medicaid-under-the-affordable-careact/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D (last visited Apr. 26, 2019) [https://perma.cc/9UN3-7SF5] (indicating the nine states that did not use a State Plan Amendment).
26 Id.
27 Ja'Nel Johnson, Long Process for Bevin to Roll Back Medicaid in Kentucky, WFPL News (Nov. 12, 2015), https://wfpl.org/changes-kentuckys-medicaid-expansion-look-like/ [https://perma.cc/C57V-QEAY].
28 Section 1115 of the Social Security Act, supra note 21; 42 U.S.C. §1315(a)(1) (2014).
29 Section 1115 of the Social Security Act, supra note 21; 42 U.S.C. §1315(a)(1).
30 See Budget Neutrality Policies for Section 1115(a) Medicaid Demonstration Projects, SMD 18-009 (Aug. 22, 2018), https://www.medicaid.gov/federal-policy-guidance/downloads/smd18009.pdf.
31 Watson, Sidney D., Out of the Black Box and Into the Light: Using Section 1115 Medicaid Waivers to Implement the Affordable Care Act's Medicaid Expansion, 15 Yale J. Health Pol'y & Ethics 213, 215 (2015)Google ScholarPubMed.
32 Affordable Care Act of 2010, Pub. L. No. 111-148, §10201, 124 Stat. 204 (2010) (codified as 42 U.S.C. 1315(d)) (adding a new subsection (d) to Section 1115 of the Social Security Act); 42 C.F.R. § 431.400-431.428 (2018) (implementing regulations).
33 42 C.F.R. § 431.408(a)(1), § 431.408(2)(iii) (2012) (State Public Notice Process).
34 42 C.F.R. § 431.408(a)(1)(iii).
35 42 C.F.R. § 431.408(a)(3).
36 42 C.F.R. § 431.412(a)(viii) (2012).
37 42 C.F.R. § 431.416 (2012).
38 42 C.F.R. § 431.416(d)(2).
39 42 C.F.R. § 431.416(f).
40 42 C.F.R. § 431.416(d), § 431.416(f).
41 Beno v. Shalala, 30 F.3d 1057, 1067 n.24 (9th Cir. 1994) (collecting cases so holding).
42 See, e.g., Beno, 30 F.3d at 1076; Newton-Nations v. Betlach, 660 F.3d 370, 381-82 (9th Cir. 2011).
43 Newton-Nations, 660 F.3d at 380 (quoting Beno, 30 F.3d at 1069).
44 Id. at 381.
45 Deborah Yetter, Bevin Unveils Plan to Reshape Medicaid in Ky., Courier J. (June 22, 2016, 6:26 PM), https://www.courier-journal.com/story/news/politics/2016/06/22/bevin-unveils-plan-reshape-medicaid-ky/86211202/ [https://perma.cc/55ZH-AV6T].
46 Notice, Ky. Dep't for Medicaid Services, Public Hearings and Comment Period for §1115 Demonstration Waiver (2016) [hereinafter “Notice”].
47 Id.
48 Id. People who lose eligibility for failure to file a timely renewal application are locked out for six months and may reapply at the end of the lock out period. Those who lose eligibility for failure to pay premiums are locked out for six months, but do not regain eligibility until they re-pay their missed premiums. Those who lose eligibility for failure to file work reports are similarly locked out for six months, but may only regain eligibility after they have submitted their missing work documentation.
49 Id. (1,0341,000 member months divided by 12).
50 See Yetter, supra note 48.
51 The Secretary does not have the authority to permit a state to require Medicaid beneficiaries to work.” The Fiscal Year 2017 HHS Budget: Hearing before the H. Sub. Comm. on Health of the Comm. on Energy & Commerce, 114th Cong. 13 (2016) (Statement of Sylvia Burwell, Sec'y of Health & Human Servs.). See, e.g., Letter from Andrew M. Slavitt, Acting Admin., Ctrs. for Medicare & Medicaid Servs., to Thomas Betlach, Dir., Az. Health Care Cost Containment Sys. (Sept. 30, 2016) (explaining that work requirements in Arizona application “could undermine access to care and do not support the objectives of the program”); Letter from Vikki Wachino, Dir., Ctrs. for Medicare & Medicaid Servs., to Jeffrey A. Meyers, Comm'r, N.H. Dep't of Health & Human Servs. (Nov. 1, 2016) (explaining that work requirements in New Hampshire application “could undermine access, efficiency, and quality of care provided to Medicaid beneficiaries and do not support the objectives of the Medicaid program”).
52 Rachel Garfied, et al., Implications of Work Requirements in Medicaid: What does the Data Say?, Kaiser Family Found. (June 2018), https://www.kff.org/medicaid/issue-brief/implications-of-work-requirements-in-medicaid-what-does-the-data-say/ [https://perma.cc/EMX2-2RPY]; MaryBeth Musumeci & Julia Zur, Medicaid Enrollees and Work Requirements: Lessons From the TANF Experience, Kaiser Family Found. (Aug. 18, 2017), https://www.kff.org/medicaid/issue-brief/medicaid-enrollees-and-work-requirements-lessons-from-the-tanf-experience/ [https://perma.cc/A4R5-JJX9].
53 See, e.g. Laura Snyder & Robin Rudowitz, Premiums and Cost Sharing in Medicaid: A Review of Research Findings, Kaiser Family Found. (Feb. 2013), https://kaiserfamilyfoundation.files.wordpress.com/2013/02/8417-premiums-and-cost-sharing-in-medicaid.pdf.; Samantha Artiga, Petry Ubri, & Julia Zur, The Effects of Premiums and Cost Sharing on Low-Income Populations: Updated Review of Research Findings, Kaiser Family Found. (June 2017), http://files.kff.org/attachment/Issue-Brief-The-Effects-of-Premiums-and-Cost-Sharing-on-Low-Income-Populations [https://perma.cc/N98N-8G93].
54 See Notice, supra note 49; Letter from Matthew G. Bevin, Governor of Ky., to Sylvia Burwell, Sec'y of Dep't of Health & Human Servs. (Aug. 24, 2016), at 4 (by April 2016, more than 428,000 enrolled in Medicaid Expansion).
55 See Brief for Deans, Chairs and Scholars at 18, Stewart v. Azar, 313 F.Supp. 3d 237, 262 (D.D.C. 2018).
56 Notice, supra note 49.
57 Id.
58 See generally Letter from Matthew G. Bevin, supra note 57.
59 Id. at 17.
60 Id. at 43-45.
61 Id. at 46-47.
62 Id. at 47-48.
63 Open Rec. Discussion, In re Ky. Equal Justice Center/Cabinet for Health and Family Services, 17-ORD-192 (2017).
64 Public Comment to Kentucky HEALTH, Medicaid.Gov (Oct. 8, 2018) https://public.medicaid.gov/connect.ti/public.comments/view?objectId=1888067 [https://perma.cc/8MH4-4W27] (comments in response to proposed Medicaid changes).
65 Letter from Eliot Fishman, Dir., Ctrs. for Medicare & Medicaid Servs., to Stephen P. Miller, Comm'r, Ky. Dep't. for Medicaid Servs. (Oct. 19, 2016).
66 Comments, supra note 67.
67 Minimizing the Economic Burden of the Patient Protection and Affordable Care Act, Exec. Order 13765, 82 Fed. Reg. 8351, 8351 (Jan. 20, 2017).
68 See Phil Galewitz, CMS Chief Recuses Herself from Major Medicaid Decision, Kaiser Health News (Apr. 5, 2017), https://www.governing.com/topics/health-human-services/khn-seema-verma-cms-kentucky.html [https://perma.cc/CZ6C-9BRN].
69 Letter from Thomas E. Price, Sec'y, and Seema Verma, CMS Administrator, Health and Human Services, to Governors (March 14, 2017), https://www.hhs.gov/sites/default/files/sec-price-admin-verma-ltr.pdf.
70 Id. at 2.
71 Kentucky Health - Proposed Modifications to Application, Public Comment to Kentucky HEALTH, Medicaid.gov (Jul. 3, 2017), https://public.medicaid.gov/connect.ti/public.comments/view?objectId=1891139 [https://perma.cc/83DTDD3R].
72 Letter from Adam Meier, Deputy Chief of Staff for Policy, Ky. Governor's Office, to Brian Neale, Dir., Ctr. for Medicaid & CHIP Servs. (July 3, 2017), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ky/ky-health-pa2.pdf.
73 Press Release, Ky. Cabinet for Health and Family Servs., State Submits Operational Modifications to Kentucky's Medicaid Transformation Proposal (Jul. 3, 2017), https://chfs.ky.gov/agencies/dms/Documents/nr070320172.pdf.
74 Id.
75 Letter from Adam Meier to Brian Neale, supra note 67, at 1.
76 See Medicaid.gov, supra note 74 (simply announcing a “federal public comment period”). Medicaid.gov, supra note 66.
78 List of Responses, Public Comment to Kentucky HEALTH, Medicaid.gov, https://public.medicaid.gov/connect.ti/public.comments/questionnaireVotes?qid=1891139 [https://perma.cc/25SB-2T2P].
79 See Kentucky HEALTH State Waivers List, Medicaid.gov, https://www.medicaid.gov/medicaid/section-1115-demo/demonstration-and-waiver-list/?entry=39258 [https://perma.cc/4GJ4-FWXT] (showing all documents pertaining to this waiver that have been shared with the public by CMS); Kentucky HEALTH: What It Is, Ky. Cabinet for Health and Family Servs., https://chfs.ky.gov/agencies/dms/Pages/kyhealth.aspx [https://perma.cc/5J8M-NB37] (showing links to documents and press releases related to the waiver).
80 Letter from Brian Neale, Dir., Ctr. for Medicaid & CHIP Servs., to State Medicaid Director (January 11, 2018), https://www.medicaid.gov/federal-policy-guidance/downloads/smd18002.pdf.
81 Letter from Brian Neale, Deputy Adm'r, Ctrs. for Medicare and Medicaid Servs., to Adam Meier, Deputy Chief of Staff, Office of Governor Matthew Bevin (January 12, 2018) https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ky/health/ky-health-cms-appvl-011218.pdf. For an overview of the waiver provisions, see MaryBeth Musumeci et al., Approved Changes to Medicaid in Kentucky, Kaiser Family Found. (Jan. 17, 2018), https://www.kff.org/medicaid/issue-brief/approved-changes-to-medicaid-in-kentucky [https://perma.cc/Q234-BXE6] (last visited Apr. 29, 2018).
82 Letter from Brian Neale to Adam Meier, supra note 76, at 6.
83 Id. at 6-7.
84 Id. at 7-8.
85 Stewart v. Azar, 313 F. Supp. 3d 237, 237 (D.D.C. 2018); Kentuckians Sue Trump Over Radical Changes to Medicaid, Nat'l Health Law Program (Jan. 24, 2018), https://healthlaw.org/news/kentuckians-sue-trump-over-radical-changes-to-medicaid/ [https://perma.cc/8V3L-A3C8] (last visited Apr. 30, 2018).
86 See Administrative Record at 2931-5410, Stewart v. Azar, 313 F. Supp. 3d 237 (D.D.C. 2018).
87 Stewart, 313 F. Supp. 3d at 274.
88 Id. at 261-62.
89 Id. at 262.
90 Id. at 260-68.
91 Id. at 268-70.
92 Id. at 268-71.
93 Id. at 262-65.
94 Id. at 262.
95 Id. at 262 (quoting Comment of American Congress of Obstetricians and Gynecologists).
96 Id. at 262, 274 (citing on work requirements: AR 3311, Center for Law and Social Policy, (“Expecting current enrollees who transition to Kentucky HEALTH to meet the work requirements in the first month of Kentucky HEALTH does not support work, but only serves to immediately disenroll people from Medicaid.”); AR 3833-34, American Congress of Obstetricians and Gynecologists, et.al. (“[T]he experience of the Temporary Assistance for Needy Families (TANF) program demonstrates that imposing a work requirement on Medicaid would lead to the loss of health coverage for substantial numbers of people who are unable to work or face major barriers to finding and retaining employment.”); AR 3890, Nat'l Alliance on mental Illness (“Work requirements … create a barrier to coverage that is likely to delay or disrupt prevention.”). On premiums, AR 3740, Families USA (“In Indiana, November 2015 through January 2016, the state dis-enrolled 1,680 individuals from its Medicaid expansion HIP 2.0 program for failure to pay premiums.”); AR 3775, Save Ky. Healthcare (“There is evidence that premiums are a barrier to coverage and enrollment for low-income individuals.”); AR 3796, Community Catalyst (“A rich collection of evidence verifies that premiums in Medicaid discourage enrollment and result in people losing coverage. For instance, when Oregon increased premiums for enrollees below poverty in 2003 from $6 to $20, nearly half of the state's Medicaid beneficiaries lost coverage, mostly due to affordability issues.”); AR 3831, United Automobile, Aerospace, and Agricultural Implement Workers of America (“Studies have shown that premiums are a hardship on the poor and lead to reduced enrollment and dropped coverage.”); AR 3864, National Health Law Program, (“[P]remiums for low-income enrollees, has been repeatedly tested and consistently shown to depress enrollment.”); AR 3846-47, American Diabetes Ass'n (citing study that “a premium increase of $10 per month is associated with a decrease in public coverage”); AR 3880, Kentucky Center for Economic Policy (“All five states that have instituted premiums for their expansion populations have seen either an increase in collectable debt among enrollees, a decrease in enrollment or at the very least an increase in churn in and out of the Medicaid program.”); AR 3891, NAMI (“Research has consistently demonstrated that premiums deter enrollment.”); AR 3835, ACOG, (“Extensive research (including research from Medicaid demonstration projects conducted prior to health reform) shows that premiums significantly reduce low-income people's participation in health coverage programs.”). On non-emergency use of emergency rooms: AR 3692, American Cancer Society Cancer Action Network (“Studies have shown that imposing cost-sharing on low-income individuals is likely to deter enrollment in the Medicaid program.”); AR 3962, American diabetes Association, (“[T]he cost-sharing requirements in Kentucky HEALTH are likely to deter individuals from obtaining Medicaid coverage.”); AR 3849, Advocacy Action Network, (“More than forty years of research, beginning with the Rand Corporation studies I the 1970's, plus experience from many other states, have demonstrated that cost-sharing requirements will reduce the number of individuals who will have and maintain coverage.). On reporting requirements: AR 3322-23, Families USA, (explaining how a beneficiary might easily fail to report small fluctuations in jobs, thereby resulting in lockouts of six months from coverage); AR 3314, CLASP, (same). On lockouts: AR 3797, Community Catalyst, (noting that in Indiana's similar program, “six percent of individuals with incomes above the poverty line were locked out of coverage for falling behind on their premiums”); AR 3815, National Women's Law Center (”Evaluations of the Children's Health Insurance Program (CHIP) show that lockout periods reduce retention in the program and are associated with increases in disenrollment as well as decreases in reenrollment after the lockout period.”); AR 3891, NAMI (“A six-month lock-out period would result in gaps in coverage, treatment and care, especially for people with mental illness.”). On retroactive eligibility: Stewart at 265, citing AR 3811, National Women's Law Center (“Kentucky's request to waive retroactive eligibility for newly eligible low-income adults does not provide any demonstrative value other than to delay coverage — putting newly eligible beneficiaries at risk of medical debt and providers at risk for bad debt.”); AR 3702, Human Arc (“The gap in coverage that will be created by the elimination of retroactive coverage could be devastating to those newly enrolled Kentucky HEALTH recipients who received services prior to their start date.”))
97 Id. at 262-63 (citing six public comments submitted by consumers, families and one social service agency).
98 Id. at 263; Administrative Record, supra note 81, at 3486.
99 Stewart, 313 F. Supp. 3d at 263; Administrative Record, supra note 81, at 3652.
100 Stewart, 313 F. Supp. 3d at 263.
101 Stewart, 313 F. Supp. 3d at 272-274.
102 Letter from Paul Mango, Chief Principal Deputy Administrator and Chief of Staff, Department of Health & Human Services, to Carol H. Steckel Commissioner, Department for Medicaid Services, 11 (Nov. 20, 2018) https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ky/ky-health-ca.pdf [https://perma.cc/5JA4-SY6C] (CMS noted that were 11,750 comments submitted on line, but 3167 were either duplicates, blank, non-responsive, unclear, or general testimonials).
103 Id. at 2; For an overview, including the few technical differences between the two approvals, see MaryBeth Musumeci et al., supra note 6.
104 Letter from Paul Mango, supra note 102, at 12.
105 Id.
106 Id. at 14.
107 Stewart, 313 F. Supp. 3d at 263 (citing public comments in the earlier Administrative Record).
108 See Letter from Paul Mango, supra note 102, at 14-15.
109 Plaintiff's Mot. and Memorandum in Support of Partial Summary Judgment, Stewart v. Azar, 2019 WL 294266 (D.D.C. 2019).
110 Stewart v. Azar, 2019 WL 294266 (D.D.C. 2019) [hereinafter Stewart II].
111 Id.
112 A.C.A §10201, codified at 42 U.S.C. 1315(d) (adding a new subsection (d) to Section 1115). See also 42 C.F.R. 431.400-431.428 (implementing regulations).
113 This small and dedicated band of consumer advocates included Emily Beauregard Dr. Alden Jones and Dr. Joan Buchar, KVH; Dr. Sheila Schuster, KY/Advocacy Action Network; Angela Cooper, Foundation for a Healthy KY and KVH; Dustin Pugel, Kentucky Center for Economic Policy; Rich Seckel, Miranda Brown, Marcie Timmerman and Cara Stewart, KEJC.
114 Notice, supra note 49.
115 Notice, supra note 49.
116 See Register, Medicaid.gov https://public.medicaid.gov/connect.ti/system/register [https://perma.cc/CZV8-CXAN] (last visited April 7, 2019). Apparently, one does not have to create an account to submit a comment, but the website does make that clear.
117 One of the authors of this article, a law professor, needed assistance in setting up her account.
118 See supra, note 113.
119 See Stewart, 313 F. Supp. 3d at 252.
120 See id.
121 See supra note 81.
122 See, Tenncare II-Amendment 38, Public Comments, Summary of Responses, https://public.medicaid.gov/connect.ti/public.comments/questionnaireResults?qid=1899651 [https://perma.cc/BA32-YFG5] (13, 778 comments reported as submitted).
123 See, e.g., Drew Weston, The Political Brain: The Role of Emotion in Deciding the Fate of the Nation (PublicAffairs, 2d ed. 2008); see also Deborah Tannen, What's in a Frame? Surface Evidence of Underlying Expectations, in Framing Discourse 20-21 (Deborah Tannen ed., 1993); see also George Lakoff and Mark Johnson, Philosophy in the Flesh: the Embodied Mind & its Challenge to Western Thought (Basic Books, 1999).
124 Alfred C. Aman & William T. Mayton, Administrative Law 41 (West Academic Publishing, 3d ed. 2014).
125 American Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1044 (D.D. Cir. 1987) (quoting Batterton v. Marshall, 648 F.2d 694, 703 (D.C. Cir. 1980) and Guardian Federal Savings & Loan Insurance Corp., 589 F.2d 658, 662 (D.C. Cir. 1978)).
126 Samantha Artiga, Jennifer Tolbert, & Robin Rudowitz, Implementation of the ACA in Kentucky: Lessons Learned to Date and the Potential Effects of Future Changes, Kaiser Family Found. (April 20, 2016), https://www.kff.org/report-section/implementation-of-the-aca-in-kentucky-issue-brief/ [https://perma.cc/AK7R-N2XR].
127 Alec MacGillis, supra note 18 (quoting Joe Sonka, a Louisville journalist, quoting Kentucky State Auditor Adam Edelin, quoting Scott Jennings, an advisor to Sen. Mitch McConnel. It should be noted that Jennings does not recall making the statement).
128 See Scott Keeter, Carroll Doherty, Rachel Weisel, The Politics of Financial Insecurity, Pew (Jan. 8, 2015) https://www.pewresearch.org/wp-content/uploads/sites/4/2015/01/1-8-15-Financial-security-release.pdf [https://perma.cc/3R2S-5RU7].
129 Jamila Michener, Fragmented Democracy 77-78 (Cambridge University Press 2018) (when Medicaid enrollees are compared to non-enrollees who have similar income, age, sex, education, race, and marital status they are significantly less likely to participate in the political process).
130 Id. at 60-75.
131 Id. at 60-75, 80-133.
132 Id. at 60-77.
133 Id. at 80.
134 Id. at 77-83.
135 Id. at 81.
136 Jamila Michener, The Politics and Policy of Racism in American Health Care, Vox (May 24, 2018) https://www.vox.com/polyarchy/2018/5/24/17389742/american-health-care-racism [https://perma.cc/9Z6HZQTD].
137 Letter from Paul Mango, supra note 105, at 12.