Friday, May 20, 2011

Update from D.C. on SB 1274

Here is Rafael's update from last night.

It was an eventful day. I met with staff at Families USA first thing this morning and learned a surprising thing (keep in mind I have yet to confirm this directly with the CCIIO). Cheryl Fish-Parcham at FamiliesUSA believes that CCIIO has had hearings for one or more states where they had serious concerns about compliance. She also believes that DOL ESBA participates and that these hearings are operated by the OPM. As soon as I can confirm those facts, I will let you know, but it does appear that there is a formal process for 1) determining compliance, 2) notifying the state of the CCIIO’s determination (and possibly DOL), and 3) providing a hearing for the state to make its case. All of this suggests a number of things. For one, I would argue that any preemption (this is really not quite the right concept, so I am using the term because that is the label that has been used in our State) would be confined to the items of noncompliance instead of an across the board overthrow of the state’s external review law. That would be well grounded in preemption jurisprudence concerning cases in which Congress has expressly provided that State law is primary unless it fails to comply with federal law. Enough legal theory. This will be interesting to pursue.

You hopefully had time to listen to my report on The Conversation with Beth Ann Koslovich at 8 or download the podcast from

I provided more information to Sen. Inouye’s office, including the HMA’s letter to Governor Abercrombie urging him to veto SB1274, for a hoped-for letter to the CCIIO and DOL.

I spoke with Joe Shapiro, investigative reporter at NPR thanks to facilitation by Summer Harrison. Joe has done a series on developments in Medicaid care for the aged, blind, and disabled. He will be investigating if other states have specifically excluded Medicaid managed care members from external review. Because the plans are purchased, I am considering whether the specific exclusion could be a violation of the ACA.

Then I heard from Cheryl Fish-Parcham that Ellen Kuhn at CCIIO had agreed to a conference with me and Commissioner Ito. I contacted Commr Ito and he is substituting Lloyd Lim because he will be away. We will be going through Hawaii law in detail with Ms. Kuhn. That means CCIIO has done some work on our law at least.

I also received some helpful suggestions from Rep. Della Bellati, and I hope I already told you that Rep. Karl Rhoads has been very helpful and supportive.

I connected with Erika Moritsugu at Sen. Akaka’s office, thanks to help from Mary Osorio – thank you, Mary!. She has substantial experience in health policy matters and was in Hawaii for a while during the time SB1274 was in the Legislature, but had not known its fate. I provided her with the information I had provided to Lt. Col. Maureen Charles in Sen. Inouye’s office.

Meanwhile, I received Rep. Cynthia Thielen’s compelling letter to Governor Abercrombie urging him to veto SB1274 if he is able to establish that it complies with the minimum protections. Rep. Thielen has been opposed to the repeal of Hawaii’s consumer protections since the bills were first heard in this Legislative session. Rep. Thielen concluded her letter: “With your leadership, we can continue to be a national role model in this area.” Thank you, Rep. Thielen for taking time out of your busy schedule to send a great letter!

Hope you are following my peripatetic tweets.
Thanks to all for your support and assistance. G`nite


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I'm the mom of a child with disabilities. Hannah's first neurologist said she might never develop beyond the level of a 2 month old infant, and there wasn't anything I could do about it. The brain damage was just too severe. Nine years later, she walks, uses a touchscreen computer and I've just been shown she can learn to construct sentences and do simple math with the right piece of technology. Along the way, I discovered I needed to teach myself what Hannah's rights to services really were. Learning about early intervention services led to reading about IDEA and then to EPSDT. I've been waiting for the Obama administration to realize the power and potential of EPSDT for the medical rights - including the right to stay at home with their families - of children with disabilities. The health reform people talk about long term care, and the disability people talk about education and employment, but nobody is talking about EPSDT. So I am.