Delays in TennCare Determinations at Heart of Lawsuit
Tennessee became one of the first states in the nation to face litigation over its Medicaid practices in the post-reform era when three advocacy groups filed suit on behalf of clients they say have waited far beyond the legal limit for a determination of TennCare eligibility.
The Southern Poverty Law Center, Tennessee Justice Center and National Health Law Program filed suit on July 23 in the U.S. District Court for the Middle District of Tennessee. Darin Gordon, Larry B. Martin, and Raquel Hatter, PhD, in their respective official capacities as director of the Bureau of TennCare, commissioner of the Tennessee Department of Finance and Administration and commissioner of the Tennessee Department of Human Services have been named as defendants.
In a conference call with statewide media representatives, lawyers for the plaintiffs alleged the state was playing politics by adopting policies that have deprived vulnerable citizens of healthcare coverage for which they are eligible and kept others, who might or might not ultimately be eligible, hanging in limbo with no determination date in sight. The attorneys said the Centers for Medicare and Medicaid Services have long required eligibility decisions be made within 45 days of an individual filing an application. However two of the plaintiffs, each facing a health crisis, had already waited more than 140 days without receiving any determination.
“No one wants to be here today,” said Michele Johnson, co-founder and executive director of the Tennessee Justice Center (TJC). “The state of Tennessee has failed its citizens. The results have been unimaginable and unacceptable.”
Sam Brooke, a senior staff attorney at the Southern Poverty Law Center, stated, “We have filed a federal lawsuit today, Wilson v. Gordon, because Tennessee is frankly playing politics with the lives of their citizens.”
He added that Tennessee has made it more difficult than any other state in the nation to enroll in its Medicaid program. “They’re throwing a monkey wrench into their own Medicaid program so the can demonize the federal government. People in dire need of medical care are being sacrificed,” Brooke said.
He noted the 45-day requirement for determining eligibility isn’t a new rule, nor is the requirement that calls for a hearing if a denial or no determination is made. “What is new is Tennessee’s decision to ignore both these requirements,” he asserted. The attorneys said failure to render a decision or to offer a channel to settle a dispute violates an applicant’s right to due process.
The group added they have been meeting with TennCare officials for several months to address a variety of issues, several of which were outlined in a sternly worded mitigation letter from CMS to TennCare in late June accusing the state of failing to meet six of seven critical success factors required by federal healthcare law. “To their credit,” said Brooke, “they have addressed some of the other issues but have drawn a line in the sand on this.”
Johnson said the backlog stems from a decision to end in-person assistance for residents trying to apply for TennCare. Tapping into federal funds, Tennessee has invested $35 million in an upgraded computer system that will hopefully alleviate the situation. However, Johnson said 100 people in county offices who served as in-person resources for applicants were laid off before seeing if the computer system functioned properly … it didn’t.
Now, TennCare officials seem unable to offer a timeline as to when the system will be operational. Instead all applications for TennCare are being funneled through the federal marketplace website, healthcare.gov, which Johnson said was neither set up for nor intended to process and determine eligibility for TennCare’s 27 unique categories.
Jane Perkins, legal director for the National Health Law Program, noted, “It is clear Tennessee is a national outlier. We are monitoring enrollment in other states, and at this point, Tennessee is among the worst … if not the worst … offenders.” She added, “This is the first case that has been filed to challenge a state’s failure to process applications in a timely manner.”
The phones have continued to ring at the TJC as individuals share stories of their battles with red tape and radio silence from anyone who could make a determination on their status. “We’ve gotten about 160 calls in the last six weeks about this issue,” Johnson said last month. “We’d never gotten a call before Jan. 1 from someone who was waiting 45 days.”
While there were 11 plaintiffs in the original filing, the attorneys have asked the court to certify the suit as a class action. They are also seeking emergency help for those stuck in limbo. Johnson said they are asking for a court injunction requiring a decision be made within 72 hours after it has been brought to the attention of TennCare officials that an individual has waited more than 45 days for an eligibility determination.
“On August 14, the state responded and filed a motion to dismiss the whole case,” Johnson continued. “They said we should have sued the federal government.” She added the state’s take on the situation seemed to be that the enrollment delays were tied to failings with the federal marketplace and healthcare.gov site coupled with the ongoing problems with the state’s new computer system. However, Johnson noted every other state has managed to get its computer system working except Tennessee. Other states also offer in-person assistance to help individuals navigate a complex system. Johnson reiterated the federal online marketplace “was never meant to be the only door to obtain state coverage.”
A hearing on the requests by both the plaintiffs and defendants was set for Aug. 29. In the meantime, costs and frustrations continue to mount.
“Charity care clinics often require, rightfully so, some kind of proof that you’ve been denied coverage, but these folks can’t get that because they can’t get any answer,” said Johnson. “Tell them yes. Tell them no. But tell them something.”
Go Online for Updates
An important hearing regarding this case was scheduled for Aug. 29, which fell after our print deadline for the September issue. Please go online to MemphisMedicalNews.com for updates regarding the lawsuit.
The Impact on Individuals
Tennessee has long had presumptive eligibility for newborns, but coverage is now being terminated for a number of these tiny infants once they leave the hospital … even though this is in opposition to Tennessee’s own child health plan, CoverKids.
Michele Johnson, executive director of the Tennessee Justice Center, shared the story of one mother who called the TJC in utter frustration. Within hours of giving birth via C-section, the new mom was handed a computer and told to apply for her child’s coverage through healthcare.gov. One problem … you can’t apply without a Social Security number. Johnson said that makes perfect sense for adults seeking coverage in the federal marketplace but leaves newborns in limbo for several weeks while parents apply … and then wait for … a Social Security number to be assigned. It’s one example, Johnson said, of why the federal website was never intended to be the sole option to access state Medicaid coverage.
In another case, a newborn needed the services of the NICU. After growing stronger, the baby would have been allowed to go home but would still need oxygen. Although coverage was applied for on the day the baby was born, the application still hadn’t been processed weeks later. Without coverage, the parents couldn’t afford the oxygen, and the hospital couldn’t release the child. While everyone … including those with the state … agreed the child should be covered, it took intervention by the TJC before the issue was ‘mostly fixed.’ At press time, the hospital, which had absorbed all the inpatient costs, was still waiting to hear if they would be reimbursed.
“Those are the kinds of calls we’re getting on a daily basis,” said Johnson. “We have so many people who are getting caught between the cracks.”
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