2007 - 2008 Policies for the Jurisdiction of the:
Health Committee
Note: In order to print one policy, you must highlight it and click on selection in your print option.
Health Main Page
Health Standing Committee
Standing Committee Main Page
Staff Contacts
Policies:
Acquired Immune Deficiency Syndrome/HIV-Infection
NCSL supports federal initiatives that provide needed assistance to state and local governments for the treatment and care of people with AIDS and HIV-infection and considers Acquired Immune Deficiency Syndrome (AIDS) and HIV-related conditions a top priority health concern of the nation. A coordinated and intensive effort to prevent the spread of HIV-infection, develop new treatments, discover a cure, and assist people with AIDS and HIV-infection in receiving needed medical and support services is critical and must be supported by the combined efforts of government, the private and voluntary sectors, business and individuals.
Prevention and Education
Lowering transmission rates of HIV-infection is the first of many measures that must be taken to address the enormous impact of AIDS and HIV-infection in the United States. Prevention efforts have made a measurable impact on the overall rate of transmission since the early 1990's, but have not been equally successful across all populations. Education is a critical component of the prevention effort and must be culturally sensitive, age appropriate, and tailored to be effective with a specific audience. Federally funded family life and health education and prevention programs must include accurate information emphasizing responsible sex practices. These programs should include but not be limited to the promotion of safer sex, abstinence before marriage, monogamy after marriage and discourage illegal intravenous drug use. HIV prevention programs should be included in other treatment programs (e.g. substance abuse, mental health) when appropriate.
Confidentiality and Civil Rights
NCSL supports federal efforts to sustain the privileged state of personal medial records and is particularly supportive of efforts to protect individuals with AIDS and HIV-infection from experiencing discrimination in employment, housing, insurance coverage and public accommodations. Protecting the rights of people with AIDS and HIV-infection, is first and foremost, however, the rights and legitimate concerns of insurers, health care professionals, and emergency response personnel must be considered in the balance.
NCSL opposes federal legislation imposing either a mandate for or a prohibition of state partner notification requirements or contact disclosure or tracing programs. NCSL also opposes federal legislation that would require states to establish civil and criminal penalties for the knowing transmission of HIV-infection. Provisions of this sort are particularly onerous if the receipt of federal financial assistance is contingent upon their passage. Federal initiatives regarding confidentiality and civil rights should enhance, strengthen, and underscore the states' responsibility for action in these areas and allow state flexibility in such initiatives.
Counseling and Testing
Individuals with a history of high risk behavior or suspected exposure to HIV-infection, should be encouraged to be tested for HIV-infection. According to CDC, approximate 2.1 million HIV tests are conducted annually in publicly funded counseling, testing and referral (CTR) programs. Unfortunately, many people who are tested never return to receive their test results. NCSL supports the promotion of rapid testing programs. Screening with the rapid testing method facilitates the immediate provision of information and prevention counseling because the individual being tested may receive the test results, accompanied by counseling in one appointment. NCSL also supports the use of rapid testing in non-medical settings when appropriate and when counseling is available and provided on-site. HIV testing is particularly important now that effective treatments are available for asymptomatic individuals with HIV-infection.
NCSL opposes federal legislation that would require states to: impose fees for testing and counseling services; or test certain individuals or groups for HIV-infection.
These decisions should be made by state policymakers. If mandatory HIV-testing requirements are enacted, the federal government must provide funding to cover the costs of the testing, counseling, housing, treatment, and hospice care. NCSL supports efforts to encourage obstetricians and gynecologists to urge patients to be tested. This is particularly important to bolster efforts to reduce HIV-infection and AIDS in children. All physicians who serve sexually active men and women should also be enlisted to encourage their patients to be tested and should be prepared to provide educational materials to patients who request them.
Health Professionals Providing HIV Treatment and Care
NCSL supports the decision by the Centers for Disease Control and Prevention (CDC) to continue to permit state and local health officials establish guidelines regarding procedures that health care workers infected with HIV or Hepatitis B should be permitted to perform. NCSL also supports the Blood-Borne Pathogen Standard rule promulgated by the Occupational Safety and Health Administration (OSHA) and the Needlestick Safety and Prevention Act. The Blood-Borne Pathogen Standard rule mandates the use of universal precautions in infection control and requires employers to provide workers with training, protective clothing, engineered safety devices, puncture-proof containers for contaminated needles and medical waste, and vaccination against the Hepatitis B virus. The Needlestick Safety and Prevention Act requires employers to solicit input from employees responsible for direct patient care in the identification, evaluation, and selection of engineering and work practice controls.
Ryan White C.A.R.E. Act
Federal grants supporting state efforts to provide care and treatment to people with AIDS should provide maximum flexibility to states to enable them to develop programs that best meet the needs of their citizens. NCSL supports continued and adequate funding for states through the Ryan White C.A.R.E. Act and through cooperative agreements with the CDC. States should be permitted to demonstrate, in their state plan, that they have addressed the needs of all populations within their boundaries, in lieu of federal statutory mandates. Finally, in light of the substantial financial commitment by the states for HIV-related activities, NCSL opposes the imposition of state matching or maintenance of effort requirements in these programs. NCSL urges the federal government to ensure that adequate funding is provided for the AIDS Drug Assistance Program (ADAP). This program has become increasingly important as new drug therapies are developed. It is important that the funding for this program keep pace with the approval and availability of new drug therapies.
Funding Allocations Based on HIV and AIDS Cases
The 2007 reauthorization changed the allocation formula to states and eligible metropolitan areas (EMA) from one based on the relative number of AIDS cases to one that is based on numbers of individuals with HIV-Infection and individuals with AIDS, resulting in significant changes in the distribution of Ryan White funding across the states. NCSL urges the federal government to take actions to mitigate and monitor any adverse impacts to treatment and access to services that may occur.
ADAP Counted Toward Out-of-Pocket Expenditures for Dual-Eligibles
Under current law, ADAP expenditures do not count as part of the true out-of-pocket (TrOOP) expenditures for Medicare Part D beneficiaries. NCSL urges Congress to count all or part of ADAP expenditures toward TrOOP.
Treatment and Care
The two-year total disability waiting period in the Medicare program severely limits the ability of Americans with HIV-infection and other debilitating or terminal illness from participating in the program. Under current law, persons suffering from terminal, but relatively brief illness cannot now benefit from this program. NCSL recommends that the waiting period be waived in these cases. The Social Security Administration (SSA) has promulgated regulations that make it easier for individuals with AIDS and HIV-related conditions to receive Social Security Disability Insurance (SSDI). In addition, SSA has adopted rules that will help ensure that women and children with AIDS and HIV-infection are treated equitably and compassionately. NCSL supports these initiatives. NCSL urges the continuation and expansion of the end of life/palliative care initiative for under-served populations. The program provides a wide range of palliative care services including hospice care and case management services to individuals in urban, suburban and rural areas.
Research
NCSL calls upon the federal government to increase its support for research efforts through both basic and applied biomedical investigations to better understand, to treat and to prevent the disease. The federal government should continue and intensify efforts to develop both preventive and therapeutic vaccines. NCSL supports the Food and Drug Administration's (FDA) efforts to expedite the drug approval process and to increase the number of people participating in clinical trials and other programs designed to test the effectiveness of new drugs and treatments.
Racial and Ethnic Disparities
NCSL urges the federal government to make every effort to include more women and minorities in clinical trials and other research initiatives. NCSL is pleased that the Minority AIDS Initiative (MAI), which was established in 2000 to reach out to all minority communities, was permanently authorized in the 2007 Ryan White CARE Act reauthorization.
International Initiatives
NCSL supports federal initiatives that recognized the pandemic nature of HIV-infection and AIDS and that focuses on primary prevention of HIV/AIDS, care and treatment of tuberculosis and other opportunistic infections, palliative care and appropriate use of antiretroviral medications, and infrastructure and capacity development in 25 countries.
August 2010
Prescription Drugs
The National Conference of State Legislatures (NCSL) believes that it should be a national priority to expand access to affordable prescription drugs. More and more people have become interested in exploring the feasibility of importing prescription drugs from other countries to move toward this goal.
Personal Use Policy
NCSL is opposed to the “criminalization” of drug importation and the effect it may have on individuals with limited options. The current federal policy on drug importation is confusing at best. NCSL urges the Food and Drug Administration (FDA) to clarify its “personal use” policy and how the policy is to be enforced. Ultimately if it is determined that drug importation is not the right approach, NCSL urges Congress will make it a priority to explore ways to: (1) increase the number of individuals with health insurance, thereby increasing access to prescription drug coverage; and (2) increase the affordability of prescription drugs.
Regulation of Internet Pharmacies
A growing number of individuals are purchasing prescription drugs over the internet where they can fill prescriptions from the convenience of their homes often at lower prices than they can receive from local brick and mortar pharmacies. At the same time an increasing number of people are purchasing prescription drugs over the internet without valid prescriptions and without being seen by a physician. This includes drugs that normally require a high level of scrutiny because they are particularly potent, addictive or need to be regularly monitored.
NCSL urges Congress to enact legislation that would: (1) establish new disclosure standards for internet pharmacies; (2) prohibit the dispensing of prescription drugs over the internet to individuals who have not be seen by a physician, but have merely filled out an on-line questionnaire; and (3) authorize state attorneys general to shutdown non-complying sites across the country by using the federal court system.
NCSL believes that these new tools will help the states and the federal government to establish a safer environment for the purchase of prescription drugs over the internet.
Drug Safety
The NCSL supports efforts to improve the safety and quality of our drug supply by:
- Establishing a publicly available database of clinical trials to help increase patient enrollment in clinical trials, provide a mechanism to track trial progress and to ensure that trial results are made public;
- Enacting laws and regulations and embracing new technologies to track and trace drugs through the supply chain, to help address concerns about drug diversion and counterfeit drugs;
- Increasing post market surveillance to monitor drug safety;
- Requiring a FDA review of its preapproval guidelines with respect to special populations; and
- Enacting laws and promulgating regulations to prevent the sales of misbranded, adulterated, and improperly prescribed drugs from any source including domestic and imported drugs and drugs from both domestic and imported sources sold over the internet or via mail order.
- Increasing funding for the Food and Drug Administration to provide support for additional staff and other resources necessary to make substantial and significant improvements in the drug safety system.
August 2010
Drug Reimportation and Regulation of Internet Pharmacies and Drug Safety
Drug Reimportation
The National Conference of State Legislatures (NCSL) believes that it should be a national priority to expand access to affordable prescription drugs. In recent months more and more people have become interested in exploring the feasibility of reimporting prescription drugs from other countries to move toward this goal.
Personal Use Policy
NCSL is opposed to the “criminalization” of drug reimportation and the effect it may have on individuals with limited options. The current federal policy on drug reimportation is confusing at best. NCSL urges the Food and Drug Administration (FDA) to clarify its “personal use” policy and how the policy is to be enforced. Ultimately if it is determined that drug reimportation is not the right approach, NCSL urges Congress will make it a priority to explore ways to: (1) increase the number of individuals with health insurance, thereby increasing access to prescription drug coverage; and (2) increase the affordability of prescription drugs.
Regulation of Internet Pharmacies
A growing number of individuals are purchasing prescription drugs over the internet where they can fill prescriptions from the convenience of their homes often at lower prices than they can receive from local brick and mortar pharmacies. At the same time an increasing number of people are purchasing prescription drugs over the internet without valid prescriptions and without being seen by a physician. This includes drugs that normally require a high level of scrutiny because they are particularly potent, addictive or need to be regularly monitored.
NCSL urges Congress to enact legislation that would: (1) establish new disclosure standards for internet pharmacies; (2) prohibit the dispensing of prescription drugs over the internet to individuals who have not be seen by a physician, but have merely filled out an on-line questionnaire; and (3) authorize state attorneys general to shutdown non-complying sites across the country by using the federal court system.
NCSL believes that these new tools will help the states and the federal government establish a safer environment for the purchase of prescription drugs over the internet.
Drug Safety
The NCSL supports efforts to improve the safety and quality of our drug supply by:
- Establishing a publicly available database of clinical trials to help increase patient enrollment in clinical trials, provide a mechanism to track trial progress and to ensure that trial results are made public;
- Enacting laws and regulations and embracing new technologies to track and trace drugs through the supply chain, to help address concerns about drug diversion and counterfeit drugs;
- Increasing post market surveillance to monitor drug safety;
- Requiring a FDA review of its preapproval guidelines with respect to special populations; and
- Enacting laws and promulgating regulations to prevent the sale
s of misbranded, adulterated, and improperly prescribed drugs from any source including domestic and imported drugs and drugs from both domestic and imported sources sold over the internet or via mail order.
August 2009
Federal Regulation of Tobacco Sales, Marketing and Manufacturing
Illegal interstate, tribal and internet sale of tobacco products affects the health and safety of the nation’s citizens and has a particularly negative effect on state revenues. Tobacco sellers that evade state tobacco taxes:
- Use the profits of these sales to finance other illicit activities;
- Undermine state efforts to reduce youth access to tobacco products by making lower cost products available to them through the mail; and
- Reduce state revenue.
In addition, many of these sellers are failing to comply with the provisions of the Master Settlement Agreement, endangering state compliance with the Agreement and reducing state payments under the agreement by illegally gaining market share in cigarette sales by offering lower prices made possible by their failure to pay the appropriate state taxes. NCSL urges the federal government to enact legislation that will:
- Reduce the illegal sale of tobacco products in violation of state and federal law;
- Improve the ability of states to enforce state laws regulating the sale of tobacco products and to collect state taxes associated with those sales; and
- Increase penalties to individuals and entities that fail to comply with state and federal laws regulating interstate and internet sale of tobacco products;
- NCSL urges Congress to adopt legislation that would specifically:
- Impose improved recordkeeping requirements to implement these recommendations;
- Prohibit the commercial importation of tobacco products, including smokeless tobacco products, into any state in violation of state or federal law;
- Lower the threshold for cigarettes to be treated as contraband from 60,000 to 10,000 and impose a threshold of up to 500 single-units of consumer-sized cans or packages of smokeless tobacco or their equivalent within any single month;
- Increase the penalties for noncompliance with the federal laws regulating interstate and internet sale of tobacco products;
- Authorize states to enforce tobacco tax collections through the Jenkins Act;
- Permit states to collect triple damages in any suit against entities selling tobacco in states in violation of the laws of the state and make debts incurred in the purchase of these products uncollectible through actions in courts;
- Prohibit interstate tobacco sellers from doing business in a state that is party to the Master Settlement Agreement if the seller is not in full compliance with the Model Statute or the Qualifying Statute enacted by the state; and
- Preserve existing agreements between states and tribal governments regarding cigarette taxes.
If federal legislation authorizing the Food and Drug Administration (FDA) to regulate tobacco products is enacted, NCSL urges the Congress to:
- Preserve state and local authority to enact, adopt, promulgate and enforce any law, rule or regulation with respect to tobacco products that is in addition to or more stringent than the provisions in federal law relating to the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age, information reporting to the state, or measures relating to fire safety standards for cigarettes;
- Improve access to drug products used to treat tobacco dependence; and
- Prevent illegal sales of tobacco products by improving recordkeeping and labeling requirements.
August 2010
National Health Services Corps
The National Health Services Corps (NHSC) provides medical scholarship and loan repayment assistance to health professionals in exchange for primary care service in underserved rural and urban areas after graduation. In addition to this financial assistance, state offices of rural health are funded through the NHSC and health programs such as community and migrant health centers rely on NHSC to help recruit health care professionals. The National Conference of State Legislatures supports the NHSC program and encourages Congress to make the NHSC a priority program and to appropriate funds necessary to continue its important work. NCSL urges the Congress to:
Increase NHSC Funding
Appropriations should be sufficient to allow the NHSC to expand to meet the growing demand for placement by clinicians to provide primary health care services in federally designated underserved areas. The Corps has been successful in recruiting a large number of trained clinicians to its Loan Repayment Program, but funding for the program has not kept pace.
Provide Greater Program Flexibility to Better Meet Community Needs
The goal of NHSC is to educate and recruit primary health care professionals for service in communities experiencing critical shortages of health care providers. Many of these communities consist largely of individuals with specific cultural experiences or ethnic backgrounds. These communities can present special challenges in recruiting and retaining health care providers sensitive to the particular needs of the community. The NHSC recognizes the importance of training culturally-competent and responsive primary health care providers. NCSL urges Congress through the NHSC programs to:
- develop additional mechanisms to recruit and retain minority participants;
- augment informal efforts to match communities with specific cultural traditions with health care providers with shared cultural experiences, or who are specifically trained in culturally diverse community-based systems of care;
- increase and formalize efforts to recruit and place health professionals who represent racial and ethnic minorities in communities who request them;
- improve training to encompass cultural competency that considers geographical/regional differences that may affect the health delivery system;
- more directly involve communities in the recruitment, selection and retention of health care professionals through community sponsorships;
- increase the emphasis on public/private partnerships, including faith-based institutions, to enhance community involvement and contractual arrangements with independent health care providers;
- develop programs to assist remote communities, those too small for community health centers, but large enough to need assistance in obtaining primary health care for its citizens; and
- provide technical assistance to states and local communities in implementing NHSC programs and maximizing resources.
Greater Program Flexibility to Better Meet the Needs of Participating Providers
Retaining clinicians in the Corps continues to be a challenge. The reauthorization provides a unique opportunity to explore innovative options to encourage clinicians to stay in the program. NCSL urges Congress to consider:
Part-Time Service. The establishment of demonstration projects and pilot programs allowing participants to work less than full time. The opportunity to serve on a part-time basis could be an important tool in attracting non-traditional providers, including minority health care providers, and prove to be especially attractive in rural areas where traditional health care centers may be not be available.
Tax Relief. Extend to the NHSC Loan Repayment Program, the favorable tax treatment recently afforded to the NHSC Scholarship program in P.L. 107-16. The opportunity to exclude from gross income for federal income tax purposes the amounts of loan payments received from the NHSC would provide an important incentive to clinicians and also provides increased resources to the loan repayment program.
Under current law, immigrants admitted to the United States for education programs receive a J-1 visa, which requires the individual to return home for two years after completing the educational program before he or she can apply for an immigrant visa, permanent residence status or an additional non-immigrant visa. The requirement to return home can be waived. This waiver program has become a critical part of many state’s efforts to assure underserved areas in the state have access to physicians. NCSL urges Congress to enact legislation to ensure the continuation of this important program in a timely fashion that will permit states and the immigrant physicians adequate time to plan. NCSL also urges Congress to consider whether the shortages in other health professionals in these underserved areas could benefit from a similar program. NCSL urges Congress to permanently authorize this program and to provide for a periodic review and evaluation of the program’s goals and objectives .
HRSA Health Professions Grants and Cooperative Agreements
The Health Resources and Services Administration (HRSA) through a number of grants and cooperative agreements supports innovations and targeted expansions in health professions education and training. Most of these programs focus on: (1) increasing the diversity of the health care workforce; (2) preparing health care providers to serve diverse population; and(3) preparing health care providers to practice in the nation's medically underserved communities. NCSL urges Congress to continue to support these important programs.
The Nurse Investment Act
NCSL is pleased that Congress enacted the Nurse Investment Act. The Act directs the Secretary of the U.S. Department of Health and Human Services to undertake a number of activities to encourage more people to enter the field of nursing and to stay in the field. NCSL urges Congress to appropriate funds for the implementation of this legislation.
Community Health Centers, Rural Health Centers and Federally Qualified Health Centers
Community health centers, Rural Health Centers and Federally Qualified Health Centers and similar and related facilities play critical role in the health care safety net. NCSL urges Congress to continue to support these facilities.
Rural Health Programs
Discretionary rural health programs such as the rural health outreach grants, the rural health research program, rural hospital flexibility grants, the telehealth program and related grant programs provide important health services support and resources to rural and remote areas of our nation. NCSL urges Congress to continue to support these programs.
State Offices of Rural Health
The State Office of Rural Health Grant Program, first established in 1991, has spurred the development of 50 state offices by providing matching funds for their creation and by providing forums for exchanging information and strategies among states. Today's state offices provide an institutional framework that links small rural communities with state and federal resources and develops long-term solutions to rural health problems. States have become a major agent for change in rural health policy and service delivery, due in part to the work performed by the state rural health offices. NCSL urges Congress to continue to support this important program
August 2010
NCSL opposes the enactment of the National Uniformity for Food Act. This legislation would preempt existing state laws and regulations designed to inform and protect the public from food that may harm them. The petition process by which a state may attempt to “save” its law or regulation is inadequate and unworkable unless the Food and Drug Administration receives substantial new funding to hire staff to operate the system. A former FDA employee testified before a Senate committee that the current petition system is backlogged and that the system could not support additional work.
If the legislation becomes law, NCSL urges Congress to:
- provide additional funding to support the petition process;
- retain the language that clarifies that the Act does not modify or affect state product liability laws;
- retain the imminent hazard authority, which permits states to respond to an imminent hazard even if the action would violate the uniformity requirements; and
- expand the categories for expedited consideration of state petitions.
August 2009
NCSL strongly supports the development of an interoperable system of electronic health information for the United States. Such a system has the potential to:
- facilitate the coordination of health care regardless of patient location;
- improve both the quality and efficiency of care;
- provide easy access to health care information to both patients and health care providers, which can contribute to more informed decision-making on the part of patients; and
- reduce medical errors and some of the fraud and abuse that plagues our health care system.
The potential of benefits of an interoperable health information system cannot be realized unless: (1) consumers trust the system and want to participate in it; (2) the full range of health care providers trust the system and find it affordable and easy to use; and (3) employers support the system and believe that it is cost-efficient and improves quality of care.
NCSL urges Congress and the Administration to continue to move forward on the development of this important system. It is imperative that states be involved in all stages of the development. The system should be based on a set of common, but not necessarily uniform values and technical standards. NCSL supports a system that:
- guarantees that patients and their authorized health professionals jointly make decisions regarding the sharing of health information;
- stores health information locally, where the services are being rendered, not in a centralized national or regional database;
- creates a nationwide capability for health information exchange building on existing systems;
- facilitates communication among the full range of information networks, states and communities; and
- allows participating entities to use a wide range of different software and hardware.
The key to the development of a successful interoperable electronic health information system is the development of a system that is secure and protects patient privacy. The Health Insurance Portability and Accountability Act (HIPAA) set important privacy standards that must be retained in such a system. It is critical that the current HIPAA law and regulations and subsequent laws and regulations enacted to facilitate an interoperable electronic health information system continue to establish a floor, but not a ceiling when it comes to protecting patient privacy and to the permissible use of stored data.
Interoperability, not uniformity should be the focus of initiatives to get this important system in place. The security of the data must be a priority. Severe penalties should be established for individuals or entities that compromise information in the system. Every effort must be made to make the system available and affordable to the widest range of providers and consumers.
NCSL supports the establishment of a Health Information Technology Resource Center to identify best practices and to provide technical assistance to interested parties. NCSL also supports the establishment of grant, loan and demonstration programs to provide financial and technical support to health care providers, state and local governments, and other entities that will play a key role in the development and successful operation of an interoperable health information system. Finally, it is critical that publicly financed programs such as Medicaid and Medicare be active participants in the system and that creating this capacity be a priority within the federal budget.
August 2009
The development of a comprehensive long-term care program for elderly and disabled people is critical. Without the development of such a program, long-term care expenditures will continue to overwhelm state and federal health care budgets, limiting needed expenditures for primary and preventive health care. States should be given new options for setting financial and functional criteria to qualify for long-term care services. In addition, NCSL supports the development of expanded options for private long-term care insurance, flexible life insurance products, and home equity sharing programs, such as reverse annuity mortgages. NCSL also supports initiatives to provide incentives to employers to offer and for individuals to establish health savings accounts and other innovative financing options to provide support for long-term care services. Finally, much of the long-term care services provided to individuals today are provided by family members. NCSL supports efforts to assist family members who are caregivers, including tax incentives and programs that provide support services, such as respite care, for family caregivers. It is critically important to acknowledge the important role of family caregivers as part of the continuum of care in the provision of long-term care services and to provide needed support to maintain this important component of our long-term care infrastructure.
Medicaid Long Term Living Flexibility Option/Demonstration Program
Under a new state/federal partnership that uses a new formula for calculating federal funds to be spent in a state for long-term care (alternative formula), a participating state would receive federal funds based on appropriate medical and long-term care services costs, inflation, demographic factors and other appropriate factors, based on a three year rolling average. States, as a condition of receiving federal funds under this option, would be required to establish a comprehensive long-term care program for elderly and disabled individuals. The new optional program would preserve the Medicaid entitlement to states and individuals. Should the amount calculated under the alternative formula not be enough to provide full individual entitlement to services, then supplemental federal funding will be provided to meet those requirements. States would determine eligibility standards and criteria and program benefits. Each state would be required to provide a continuum of long-term care services that would include, but not be limited to: home and community-based care, nursing facility services, nutrition services, home health, hospice, supportive services and adult day care. This approach permits states to offer long-term care services in the most appropriate setting, respecting the preferences of individuals and their families, without the need for time-limited waivers. States could implement the program in a portion of the state during the initial years of program. States would be responsible for submitting a state plan and for periodically reporting program results to the Centers for Medicare and Medicaid Services (CMS). States could decide to end participation in the program, even after implementation with notice to CMS within a certain period of time.
Increasing Options for Home and Community-Based Care
NCSL continues to support the development of more home and community-based options under Medicaid to provide long term care services. States should be encouraged to develop innovative programs to improve the long-term care system. NCSL urges the Administration and Congress to work with states to develop assessment tools that will help states better identify what level of services individual clients need and the most appropriate settings for the client to receive care. These assessments should be made available to all elderly and disabled individuals to help them plan for their long-term care needs.
Long-Term Care Insurance
Recognizing consumers can potentially benefit from the purchase of long-term care insurance, NCSL supports strong federal action to protect consumers of long-term care insurance from predatory pricing or inadequate benefit plans, and to speed the development of long-term care insurance as a viable alternative or complement to Medicaid support for long-term care services. At the same time, tax credits, partnership programs, and other incentives should not be seen as a tool for reduced funding for Medicaid. While the states will continue to take primary responsibility for the regulation of long-term care insurance, NCSL supports the development and evaluation of programs and initiatives that would:
- provide preferential tax treatment for individuals who purchase qualified long-term care insurance;
- provide tax incentives for private employers and a Medicaid bonus program for state and local government employers to encourage the them to offer long-term care insurance as a benefit;
- encourage and provide incentives to employers to offer long-term care insurance, as a condition of receiving federal benefits, such as business tax credits;
- make long-term care in policies portable;
- repeal the provision in the Omnibus Budget Reconciliation Act of 1993 that restricts the ability of states to develop programs that provide limited asset protection and other incentives within the Medicaid program to individuals who purchase long-term care insurance and the establishment of a new, updated “Long-Term Care Partnership” program to encourage more people to purchase long-term care insurance. NCSL urges Congress to study options for establishing reciprocal agreements between states to facilitate the portability of the new partnership products. NCSL also urges Congress to grandfather existing partnership states into any new partnership program.
Other Federal Programs
The role of Medicare in providing long term care coverage to elderly and disabled people should be strengthened. In addition, the role of Older Americans Act and Social Service Block Grant funds in providing support services should be clarified.
Research on Alzheimer’s Disease and Related Disorders
NCSL supports continued federal funding for research that will: (1) lead to the development of new drug treatments; (2) assist in disease management; and (3) improve the early diagnosis of these conditions.
Assistance for Family Caregivers
NCSL supports federal initiatives to assist family members who are caregivers. These initiatives include tax incentives and programs that provide support services for family caregivers.
August 2009
Over the years, Medicaid has grown from a welfare program that provided assistance to a limited number of categorically eligible individuals to a health care program that is a critical component of the health care infrastructure of this nation. Medicaid provides back-up support to Medicare and to individuals who for whatever reason cannot find coverage through employer-based health insurance or through the individual insurance market. Despite our efforts, affordable, quality health care coverage remains elusive for many. We continue to have an underdeveloped infrastructure for the financing and delivery of long-term care services.
As both the states and the federal government struggle to balance their budgets and to support all the critical functions of government, it is important to discuss and review the state-federal Medicaid partnership. The National Conference of State Legislatures (NCSL) is committed to strengthening, sustaining and improving the state/federal Medicaid partnership and to exploring ways to:
- Provide predictability in program financing and administration;
- Increase flexibility for states with respect to the eligibility process and benefit design;
- Improve the coordination between Medicaid and Medicare to improve the effectiveness of care provided by both programs.
- Reform and improve the Medicaid prescription drug program;
- Establish a viable and flourishing long-term care system;
- Strengthen the employer-based health insurance system;
- Increase the number of public/private initiatives to expand access to health care and to provide health care and ancillary services to support people with challenging health care needs;
- Develop program cost containment strategies and mitigate long term costs;
- Establish or expand primary preventive care systems that provide preventive care;
- Enhance program and administrative accountability; and
- Enhance beneficiary and provider responsibility.
- maintaining the state-federal Financial partnership and Stabilizing Medicaid Funding
Supporting the Principles of Federalism
NCSL urges the Congress and the Administration to support a strong state-federal partnership by avoiding: (1) the imposition of unfunded federal mandates, (2) the preemption of state laws and regulations; and (3) restricting state taxing authority. NCSL also urges the Congress and the Administration to consult with state legislatures when proposing Medicaid policy changes.
Federal Financial Participation
NCSL opposes proposals to reduce or cap federal matching funds provided to states for Medicaid services, provider reimbursement or program administration. Proposals to cap the Medicaid program fundamentally change the relationship between the states and the federal government by inappropriately transforming a full partnership into a limited partnership, and shifting both costs and responsibility to state governments without adequate authority to manage costs. If the Medicaid funding is shifted to a block grant, there must be a formula to automatically increase the block grant without the need for further Congressional action to adjust for demographic changes, and medical inflation. If a federal cap or block grant is imposed, it must be accompanied by statutory and/or regulatory changes to existing law that would authorize states to reduce or limit services, eligibility and/or payments to beneficiaries. If the states are not authorized to make the necessary program changes, they must be absolved from the legal obligation to provide services to entitled individuals.
Emergency Assistance
NCSL urges the Congress to study options to include a provision establishing emergency assistance to states within the Medicaid statute. The provision would upon some triggering event, such as an economic downturn, natural disaster, act of terrorism, pandemic or other public health emergency, provide additional financial assistance to states through an enhanced federal match or some other mechanism that would revert back to the regular federal-state cost sharing formula when the when the triggering event has been resolved. This is a complex, but critical component to fiscal security for the Medicaid program. NCSL looks forward to working with Congress and the Administration to identify options and to establish and implement a program.
Intergovernmental Transfers, Provider Taxes and Donations
It is extremely important that states feel confident that the basis for their Medicaid state matching payments can be sustained over the long-term. States must have clear guidelines if limitations on how they generate state Medicaid matching funds are to be imposed. Under current law, states are permitted to use intergovernmental transfers and provider taxes to generate state matching funds. Despite existing law and regulation, questions remain about the circumstances under which these funding tools may be utilized. States have been unfairly criticized for using these legal mechanisms to generate state Medicaid matching funds. NCSL urges the Centers for Medicare and Medicaid Services (CMS) to respect the needs of states for flexibility relative to legislative changes and proposing regulations, and to issue clear and detailed written guidelines regarding department policy on intergovernmental transfers, provider taxes and donations. The current practice of individual state negotiation without written guidelines leaves every state vulnerable to the imposition of sanctions and leaves every state Medicaid program vulnerable to unanticipated budget shortfalls. Changes in law, regulation or guidelines related to intergovernmental transfers, provider taxes and donations should be prospective, not retroactive. Finally, whatever approach is taken, CMS should provide briefings for state legislators and an opportunity for state legislators to provide feedback. This is particularly important when state law changes are needed.
Phased-Down State Contribution /Medicaid “Clawback”
For the first time, state funds are included as a line item for funding a federal program. In addition, should federal Medicare expenditures exceed certain statutory limits established in the Medicare Modernization Act (MMA), state “clawback” payments may be increased to support the Medicare prescription drug benefit. NCSL vigorously opposes the adoption of the Phased-Down State Contribution provision in the MMA and urges Congress to include this among the MMA issues to receive further review. NCSL continues to support full federal financial support for dual-eligibles. Finally, NCSL urges the Administration and Congress to provide a formal appeals process for clawback determinations that a state believes is in error, since this calculation will determine state payments into perpetuity.
Medicaid in the Territories
The funding for the Medicaid program in the U.S. territories and commonwealths is capped and the program includes a more restrictive set of benefits and services than is provided through the Medicaid program in the 50 states and the District of Columbia. As part of the broader discussion of Medicaid reform, NCSL urges Congress to review the federal partnership with the U.S. commonwealths and territories and to consider funding options that more adequately reflect the needs of the people in these jurisdictions and program changes that would provide services that are more comparable to those provided to similarly situated Medicaid beneficiaries in the states.
The Disproportionate Share Hospital (DSH) and Graduate Medical Education (GME) Programs
The Disproportionate Share Hospital (DSH) program provides funding to states to make payments to hospitals that serve a disproportionate share of Medicaid, Medicare and low-income clients. NCSL strongly supports this program. NCSL is concerned about current law provisions that make it difficult to include safety net providers participating in the DSH and GME programs to participate in Medicaid managed care networks. NCSL urges Congress to address these issues.
Medicare Reform
NCSL supports full federal funding for Medicare-eligible individuals. In 1988, the congress included a provision in the Medicare Catastrophic Coverage Act that required states to pay the premiums, copayments and deductibles for certain low-income elderly individuals who were eligible for both Medicare and Medicaid. The federal government and program beneficiaries should bear the entire cost. If additional low-income individuals are made eligible for the Medicare program through program reforms, these individuals should be 100 percent federally funded. NCSL opposes increases in Medicare cost-sharing that will shift those costs to state governments through Medicaid. NCSL urges the Congress and the Administration to make the necessary changes in federal law to permit states to coordinate and integrate services provided to individuals who are eligible for both Medicare and Medicaid. When states adopt changes in Medicaid that result in Medicare savings, states should receive credit for those state-generated savings even when they do not directly result in Medicaid savings.
Predictability and Stability in Program Administration
Supporting the Principles of Federalism in Federal Regulation and Program Administration
Significant policy changes are being made to the Medicaid program without amending the statute or changing existing regulations. A growing number of individual negotiations, limited to state executive branch staff involving intergovernmental transfers, provider taxes and donations and waivers are being conducted. This approach permits CMS staff to, without the guidance of Congress or public comment through the regulatory review process, to change Medicaid policy and impose new costs on states. NCSL is also opposed to efforts to make statutory and major policy changes in the Medicaid program through regulation. These approaches make it more difficult for state legislatures to carryout necessary program oversight and clearly circumvent existing federal policy regarding consultation with states. NCSL urges the Administration to: (1) consult with both the executive and legislative branches of government regarding concerns about Medicaid policy or program administration in a state; (2) propose legislation and submit it to Congress for consideration when statutory changes or major policy changes to the Medicaid program are proposed; (3) promulgate proposed rules, instead of interim final rules, to permit states more time to consider the issues and to submit comments; (4) refrain from making statutory changes or major policy changes through the regulatory process; and (5) fully comply with the federalism executive order regarding federal regulatory activities by consulting with states and addressing preemption issues and additional state costs in the appropriate sections of federal regulations.
NCSL urges the Congress to require CMS to promulgate regulations on a more timely basis and to require states to comply with new requirements only after CMS has published final regulations. NCSL urges the Administration to promulgate proposed regulations instead of interim final regulations more frequently. The promulgation of proposed regulations provides states with more time for consultation with the Administration and provides states with an opportunity to identify problem areas before they are required to implement the program. It is equally important to provide sufficient lead time for the implementation of new program requirements. This is particularly important when program implementation requires state legislation.
Administrative Simplification
NCSL urges the Administration and the Congress to explore ways to simplify and streamline program administration and to reduce administrative complexity and burden when developing legislative and regulatory initiatives. NCSL continues to support the use of enhanced federal matching funds for some critical administrative activities, such as system development and improvement and efforts to control and reduce Medicaid fraud and abuse. NCSL opposes efforts to reduce or eliminate enhanced federal matching funds for these and other critical administrative activities, and NCSL opposes the application of cost allocation to the Medicaid program..
Medicaid Waivers, Demonstration Programs and State Plan Amendments
The Medicaid program should become less dependent on waivers and should provide statutory authority for successful programs developed through the waiver process to be implemented by states through the state plan amendment process. NCSL urges the Center for Medicare and Medicaid Services (CMS) to provide written guidelines for waiver programs to ensure that states are clear on what is expected. NCSL also supports the development of simplified, streamlined waiver applications and templates and an expedited approval process of not more than 90 days. It is also important to require a strong evaluation component so that successful programs can be identified and replicated by state plan amendment. NCSL is particularly supportive of structure of the Medicaid Health Savings Account Demonstration program authorized in the Deficit Reduction Act of 2005. Under this demonstration authority, after the 5-year demonstration period ends, unless the demonstration has been determined to be unsuccessful, the program can be extended or made permanent. In addition, other states may also implement the program. NCSL urges the Congress to establish more demonstration programs using this framework. Finally, NCSL supports consideration of utilizing Medicare savings as an offset to comply with budget neutrality requirements of Medicaid 1115 waiver applications.
Technical Assistance and Research
NCSL supports continued support for technical assistance to states on some of the complex administrative challenges states face in this program and urges CMS to broadly disseminate findings that might be helpful to other states. Much of this can be accomplished by providing states with additional flexibility regarding eligibility and benefit design.
Ensuring Program Integrity
NCSL supports the use of audits to ensure program integrity. Where states have made honest errors in interpretation, this information should be shared so that other states might benefit. In cases where an infraction was procedural in nature and did not affect the quality of care, medical necessity or the appropriateness of services, NCSL urges CMS to impose compliance on a prospective basis.
Medicaid/Medicare Coordination
The federal government should provide more support to states for the Medicaid costs associated with low-income persons enrolled in Medicare. This increased level of support should be provided in conjunction with efforts to improve care coordination and program management between the two programs. When state Medicaid programs develop programs and/or procedures that provide savings to Medicare, states should get credit for those savings that can be counted toward the calculation of “budget neutrality” for Medicaid waiver applications.
New Care Models
NCSL supports the development of new and innovative models of care that would combine Medicaid and Medicare funding and incorporate care management, managed care, disease management and quality improvement programs. This would include initiatives that would require participation in a care management program for certain individuals. In these new models of care, information sharing between the Medicare and Medicaid programs would be critical.
Medicare/Medicaid Demonstration Project
The current system with both the federal government and the state responsible for providing health care services to the same individuals prevents people from receiving services optimally tailored to their individual needs, causes excessive administrative costs and stifles innovation. The NCSL is receptive to proposals that would divide federal and state responsibilities on a clear basis, probably age of recipient, provided: (1) the division was cost neutral for both federal and state partners; (2) except as provided for in #3, each partner had total responsibility for funding and program design within its sphere of responsibility; and (3) there was a grant-in-aid program for poorer states (those with higher FMAP) to equalize state ability to pay for programs.
Eligibility
Simplify Eligibility Process
States must be provided maximum flexibility to allow for the development of options and innovations that best meet the needs of their constituents. NCSL urges the federal government to give the states more flexibility to streamline and simplify the Medicaid eligibility process reducing the hassle factor for clients and state administrative costs. NCSL urges Congress to amend federal Medicaid law to provide states with the option to eliminate categorical eligibility and to base eligibility simply on income for state-defined groups. The Deficit Reduction Act (DRA) is a promising first step in providing more options for states through the state plan amendment (SPA) process. NCSL urges the Congress to remove some of the restrictions imposed in the DRA to provide more flexibility to states.
Benefits
Improved Flexibility in Benefit Design
NCSL urges Congress to amend federal Medicaid law to allow states to design benefit packages for the populations being served. As an example, this would permit states to develop innovative, non-traditional benefit packages for Medicaid beneficiaries with special needs and to develop other more traditional benefit packages for higher income Medicaid clients where the Medicaid benefit may more appropriately provide coverage similar to coverage available in the private health insurance market. The Deficit Reduction Act (DRA) provides some flexibility to states in this area, but imposes restrictions that may severely limit state innovation.
Early and Periodic Screening, Diagnosis and Treatment (EPSDT) Program
NCSL urges the federal government to provide more flexibility for states with regard to the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) program. Under current law, states have almost no ability to manage this benefit. States should be authorized to utilize tools that other health insurance plans use to provide high quality services but to also control costs. The State Children’s Health Insurance Program (SCHIP), has successfully provided quality health care to low-income children across the nation without the EPSDT mandate. NCSL encourages the Administration and Congress to provide more flexibility to states, but to continue to require states to provide early and periodic screening services recommended by the American Academy of Pediatrics, and treatment recommended by a health care provider for dental issues and recognized as the generally accepted standard of care for children. These services should be made available to children with the state permitted to have a prior approval process. In addition, Medicaid beneficiaries would be permitted to appeal state decisions and to request and be authorized to obtain a second opinion when a service or treatment is denied.
Enhanced Co-Payments, Premiums and Deductibles for Higher Income Beneficiaries
The states should be allowed to impose deductibles, premiums and co-payments on higher income program recipients.
Preventive Health
NCSL urges CMS to assist states in the development of strategies to increase the use of Medicaid preventive health services.
Health Information Technology
NCSL urges the Administration and Congress to support efforts to increase the use of health information technology in the Medicaid program to: (1) improve safety and quality; (2) to control costs (3) to simplify program administration; and (4) to improve efforts to collect and effectively use data. Medicaid service funds should not be reduced to support these activities. NCSL urges Congress to provide an enhanced administrative match for health information technology services.
Judicial Reforms
State Medicaid dollars are increasingly tied up in costly federal litigation. NCSL urges the Administration and the Congress to work with state officials on developing strategies to reduce the volume of litigation by clarifying and simplifying Medicaid statutory provisions that are too vague or too prescriptive for states to properly administer. NCSL also urges the U.S. Department of Health and Human Services to provide technical assistance to states regarding Medicaid services/issues that are the subject of litigation in several states so that states may find ways to successfully provide the services in question without litigation.
Federal Consent Decrees: Impact on Medicaid
Civil lawsuits filed against public schools, transit systems, and other state and local government agencies often result in consent decrees. Consent decrees can remain in place for decades, locking in policies that were agreed to by officials who are no longer in office, reflecting concerns no longer relevant to the current times and imposing requirements on states that do not meet the current needs of their citizens. Under current law, it is extremely difficult for states to vacate or modify the terms of these consent decrees which means policymakers are hobbled in their ability to govern responsibly.
NCSL supports federal legislation that allows for periodic reexamination of consent decrees to which the state is a party, other than consent decrees addressing school desegregation or other actions brought under Titles VI or VII of the Civil Rights Act of 1964, upon motion of the state and which would make it easier for states to vacate or modify consent decrees as current state circumstances may require.
Prescription Drug Program Improvements
Restructure the Medicaid Prescription Drug Benefit
The current Medicaid prescription drug benefit is in transition. The Medicare Modernization Act (MMA) which established the new Medicare prescription drug benefit made a number of changes that will significantly change state Medicaid prescription drug programs. This provides an opportunity to review and revise the existing program. Because of changes enacted as part of the MMA, state Medicaid programs will no longer receive the “best price.” States will also likely find it more difficult to negotiate supplemental rebates and collect generic rebates. As a result, states must have additional tools to properly manage this complicated and critical benefit. In addition, policy changes regarding the formula used to reimburse Medicaid prescription drug expenditures must be considered. It is important to make certain that all the affected parties are treated fairly and that proposed changes will not compromise patient access. NCSL can only support changes in the Medicaid prescription drug program that would yield at least as much savings to states as is provided for under current law.
Increased State Flexibility in the Management of the Prescription Drug Benefit
NCSL encourages the Administration and Congress to continue to support state initiatives to manage the Medicaid prescription drug benefit that: (1) control costs; (2) improve patient access; and (3) improve patient outcomes. NCSL supports increased flexibility for states to: (1) impose prior authorization requirements as provided for under current law; (2) provide incentives for the use of generic prescription drugs that are the lowest cost to the state, when appropriate; (3) require utilization review; (4) reimburse pharmacists for pharmacy management services; and (5) enhance collection procedures for federally mandated and supplemental rebates from brand name and generic manufacturers; (6) to participate in multi-state pools to maximize states’ collective buying power. NCSL urges Congress to permit states to charge higher co-payments to higher income Medicaid beneficiaries in the Medicaid prescription drug program.
Financial Accountability in the Medicaid Prescription Drug Program
The current federal requirement for secrecy in Medicaid prescription drug purchasing should be removed to allow the states to make public the prices paid for individual drugs, the rebates received and the resulting net prices paid. Complex financial systems tend to drift out of compliance unless subject to regular audits. The rebate system for brand-name and generic manufacturers provided under current law for Medicaid drug pricing is such a system. It should be subject to regular compliance audits either by the U.S. Government Accountability Office (GAO) or by the states acting individually or in cooperation.
Long-Term Care
The development of a comprehensive long-term care program for elderly and disabled people is critical. Without the development of such a program, long-term care expenditures will continue to overwhelm state and federal health care budgets, limiting needed expenditures for primary and preventive health care. States should be given new options for setting financial and functional criteria to qualify for long-term care services. In addition, NCSL supports the development of expanded options for private long-term care insurance, flexible life insurance products, and home equity sharing programs, such as reverse annuity mortgages. NCSL also supports initiatives to provide incentives to employers to offer and for individuals to establish health savings accounts and other innovative financing options to provide support for long-term care services. Finally, much of the long-term care services provided to individuals today are provided by family members. NCSL supports efforts to assist family members who are caregivers, including tax incentives and programs that provide support services, such as respite care, for family caregivers. It is critically important to acknowledge the important role of family caregivers as part of the continuum of care in the provision of long-term care services and to provide needed support to maintain this important component of our long-term care infrastructure.
Workforce Issues
The long-term care industry faces a workforce shortage that without intervention will only worsen with time. These workforce challenges will make it extremely difficult to make needed improvements in quality and safety. NCSL urges the federal government to increase its investment in innovative ways to educate, train and retain health professionals who provide a range of services to elderly and disabled people. It is particularly critical to increase and retain the workforce necessary to support more home and community-based care alternatives.
Nursing Facility Reform
The Medicaid nursing home program should provide high quality care and should: (l) provide for physical, psychological, and social needs of the clients; (2) preserve the right of self-determination, dignity and independence; (3) provide access to services for the diagnosis and treatment of mental illness; (4) provide incentives for the provision of restorative and rehabilitative services; (5) recognize the important role non-medical personal care and social services play in maintaining a person's independence.
Finally, more must be done to encourage to the nursing home industry and others who provide long term care services and support to new ways of providing a continuum of care to the range of individuals with special needs in the new and evolving long term care market. It is equally important that the federal government and state and local governments support innovative approaches.
Medicaid Long Term Living Flexibility Option/Demonstration Program
Under a new state/federal partnership that uses a new formula for calculating federal funds to be spent in a state for long-term care (alternative formula), a participating state would receive federal funds based on appropriate medical and long-term care services costs, inflation, demographic factors and other appropriate factors, based on a three year rolling average. States, as a condition of receiving federal funds under this option, would be required to establish a comprehensive long-term care program for elderly and disabled individuals. The new optional program would preserve the Medicaid entitlement to states and individuals. Should the amount calculated under the alternative formula not be enough to provide full individual entitlement to services, then supplemental federal funding will be provided to meet those requirements. States would determine eligibility standards and criteria and program benefits. Each state would be required to provide a continuum of long-term care services that would include, but not be limited to: home and community-based care, nursing facility services, nutrition services, home health, hospice, supportive services and adult day care. This approach permits states to offer long-term care services in the most appropriate setting, respecting the preferences of individuals and their families, without the need for time-limited waivers. States could implement the program in a portion of the state during the initial years of program. States would be responsible for submitting a state plan and for periodically reporting program results to the Centers for Medicare and Medicaid Services (CMS). States could decide to end participation in the program, even after implementation with notice to CMS within a certain period of time.
Increasing Options for Home and Community-Based Care
NCSL continues to support the development of more home and community-based options under Medicaid to provide long term care services. States should be encouraged to develop innovative programs to improve the long-term care system. NCSL urges the Administration and Congress to work with states to develop assessment tools that will help states better identify what level of services individual clients need and the most appropriate settings for the client to receive care, including a range of alternative residential settings. These assessments should be made available to all elderly and disabled individuals to help them plan for their long-term care needs.
Long-Term Care Insurance
Recognizing that there is a percentage of consumers who can potentially benefit from the purchase of long-term care insurance, NCSL supports strong federal action to protect consumers of long-term care insurance from predatory pricing or inadequate benefit plans, and to speed the development of long-term care insurance as a viable alternative or complement to Medicaid support for long-term care services. At the same time, tax credits, partnership programs, and other incentives should not be seen as a tool for reduced funding for Medicaid. While the states will continue to take primary responsibility for the regulation of long-term care insurance, NCSL supports the development and evaluation of programs and initiatives that would:
- provide preferential tax treatment for individuals who purchase qualified long-term care insurance;
- provide tax incentives for private employers and a Medicaid bonus program for state and local government employers to encourage the them to offer long-term care insurance as a benefit;
- encourage and provide incentives to employers to offer long-term care insurance, as a condition of receiving federal benefits, such as business tax credits; and
- make long-term care insurance policies portable.
Strengthening The Employer-Based Health Care System
Premium Assistance for Employer-Based Coverage
NCSL urges the Administration and the Congress to simplify current law provisions that authorize states to provide premium assistance to Medicaid beneficiaries to purchase private insurance. This will enable Medicaid families to purchase coverage and receive health care services from the same health plan as do families who receive their health care coverage through private insurance. A single medical home for all family members makes it easier for families to plan to receive medical services.
Public/Private Partnerships to Expand Access to Health Care Coverage
NCSL supports the development of public and private purchasing cooperatives and other innovative ventures that permit individuals and groups to obtain affordable health coverage. NCSL strongly opposes initiatives that would preempt state insurance laws or expand the state preemption provisions within the Employee Retirement Income Security Act (ERISA).
Medicaid and Entitlement Reform Commissions
If a Federal commission is established to study various aspects of the Medicaid program and entitlement reforms, the commission must be composed of equal representation from the executive and legislative branches of state government, as voting members.
August 2009
In the FY 2008 budget, the Administration proposed to make a number of “administrative” changes that would fundamentally change and substantially reduce federal support for the Medicaid program. Many of these proposals were at one time submitted as legislative proposals and rejected by the Congress. NCSL strongly opposes efforts to make significant policy and statutory changes to the Medicaid program through regulation. These changes should be proposed as legislation and left to the Congress to consider. NCSL opposes this procedure which circumvents the legislative process and strips states of their ability to provide input into the development of important Medicaid policy considerations. NCSL is specifically concerned about proposals to:
- Significantly change the provisions of the law regarding health-related provider taxes and donations, making it more difficult for states to meet the holdharmless standard;
- Further restrict the use of intergovernmental transfers and the upper payment limit, in part by redefining “local government”;
- Eliminate Medicaid reimbursement for graduate medical education;
- Redefine rehabilitative services, severely limiting the benefit;
- Eliminating or severely restricting administrative and transportation services under school-based services; and
- NCSL encourages flexibility for states in how citizenship and identity are determined.
- NCSL urges Congress to prohibit the Administration from moving forward on these proposals through the regulatory process.
August 2008
Federal mental health policy and programs should provide federal assistance to states for the development of a continuum of care, ranging from home and community-based programs to institutional care, for all mentally ill persons in the most appropriate settings. Care should be provided in the least restrictive setting possible and states must be given the flexibility to design and implement cost-effective, evidence-based alternatives to institutional care. Finally, it is important to provide for coordination of services to individuals.
Mental Health Block Grant
The Mental Health Block Grant supplements state efforts to provide comprehensive mental health services. NCSL urges Congress to maintain the integrity of this block grant and to resist efforts to establish separate categorical grants for mental health services.
Children's Mental Health
NCSL supports the federal Child and Adolescent Service System Program (CASSP) and the Community Support Program (CSP). These programs improve statewide service systems for children, adolescents, homeless people, and adults with severe mental illness and disability, focusing on community care, outreach, managed care, and support services. Further efforts in primary prevention and intervention strategies which include early diagnostic testing, screening, and treatment for children should be a primary goal of all programs. NCSL is particularly supportive of programs authorized under the Children's Health Act that will provide a wide array of mental health services to children and their families.
Medicaid and Medicare
New flexible financing mechanisms under Medicare and Medicaid for the provision of care in alternative settings should be developed. The federal government should consult with state governments in the development of these programs. The federal government should consult state governments in the development of program changes related to encouraging limitation on the use of seclusion and restraint; training on the use of seclusion and restraint; and providing for staffing in both public and private facilities to ensure the safety of patients and staff.
Insurance Coverage
The federal government should encourage the inclusion of coverage of mental health services in private health insurance policies. The federal government should develop minimum standards for these insurance products, but states should continue to be the primary regulator of insurers. These federal standards should include a requirement that policies include mental health coverage that would be guaranteed renewable. Federal law should not preempt state insurance mandates, particularly those establishing minimum mental health benefits.
Community Support Programs
Policymakers must strengthen the critical role of community support programs to include medical and non-medical personal care, housing, employment programs and social programs for persons with mental illness to live in dignity.
Client Rights
Mental health professionals should provide for the physical, psychological and social needs of mental health clients and should preserve the right to dignity, as well as the right to self-determination and independence, when appropriate, for mental health clients. Policymakers must also recognize the critical role which consumers of services have in determining their own service needs.
August 2010
The National Conference of State Legislatures (NCSL) believes that states should regulate insurance and should continue to set and enforce solvency standards and to provide oversight on insurance matters. NCSL opposes any proposals that would expand the preemption of state laws and regulations beyond those already established in the Employee Retirement Income Security Act of 1974. Absent changes that would permit states to regulate ERISA plans, Congress should impose requirements on ERISA plans that closely track state legislative and regulatory initiatives. In addition, federal remedies, that more closely resemble remedies available at the state level, should be adopted for consumers in ERISA plans. Federal health insurance legislation that establishes mandated benefits or uniform standards, should establish a floor, not a ceiling. The federal government should continue to give deference to state, local and tribal governments regarding the regulation of state, local and tribal government employee health plans.
Implementation of Federal Health Insurance Reforms
When federal insurance reforms are adopted, the consumer should easily understand the implementation process and a massive community education effort should be an integral part of program implementation. The federal government should fund Federal reforms that require state enforcement. Any federal legislation requiring state action to comply with the law should allow a reasonable period of time for state legislatures to adequately debate and enact legislation. Where states already have similar legislation in place, a process for declaring "substantial compliance" should be developed. Great deference should be given to states in the application of the "substantial compliance" doctrine.
Federal Demonstration Authority for States to Experiment with Innovative Health Care Reform Initiatives
NCSL supports federal initiatives to provide financial assistance and to authorize states to experiment with innovative approaches to: (1) increase access to health care services to the uninsured, (2) improve the quality and cost-effectiveness of our health care system, to increase access to the broad range of long term care services, especially home and community-based services, to individuals who need them and (3) explore a broad range of approaches and financing mechanisms to improve our health care system.
Health Insurance for Small Employers
We also support the development of public and private purchasing cooperatives and other innovative ventures that permit individuals and groups to obtain affordable health coverage. However, we strongly oppose preemption of state insurance laws and efforts to expand the ERISA preemption.
NCSL strongly opposes proposals that exempt association health plans (AHPs), Health Marts, certain multiple employer welfare arrangements (MEWAs), and similar entities and organizations, from critical state insurance standards. We are particularly concerned about: (1) the impact on state small group and individual insurance markets; and (2) the opportunity inadequate regulation provides for fraud and abuse. These concerns are in addition to our larger concerns about the commitment of resources by the federal government to adequately regulate an expanded health insurance market.
Regulation of Managed Care Entities
NCSL supports the establishment of consumer protections for individuals receiving care through managed care entities. The appropriate role of the federal government is to: (1) ensure that individuals in federally-regulated plans enjoy protections similar to those already available in most states; (2) establish a floor of protections that all individuals should enjoy; and (3) to provide adequate resources for monitoring and enforcing federally-regulated provisions.
NCSL supports an approach that gives maximum deference to states on the establishment and implementation of patient and provider protections related to managed care. After all, more than half the states have already enacted the patient protections similar to and in many cases more protective than those proposed in federal legislation over the past several years. A recent U.S. Supreme Court decision determined that state laws that provide state court relief for consumers through Health Maintenance Organization (HMO) liability laws are preempted by ERISA. NCSL supports federal legislation that would permit states that have established HMO liability laws, to enforce them.
In summary, NCSL supports federal action that would: (1) provide protections for individuals in federally regulated health plans; (2) establish a national floor of patient/provider protections for individuals who receive health care services through managed care entities; (3) preserve existing state laws and the authority of states to continue to regulate managed care entities. NCSL continues to be concerned about the inadequacy of the existing federal agency infrastructure to take on the task of implementing federal health insurance laws and about the lack of any proposed new resources to address this problem when new federal health insurance initiatives are proposed.
Health Insurance Portability and Accountability Act
Under the provisions of the Health Insurance Portability and Accountability Act of 1996, federal law supercedes state law, except when the Secretary determines that the state law is necessary: (1) To prevent fraud and abuse; (2) To ensure the appropriate state regulation of insurance or health plans; and (3) For addressing controlled substances, or for other purposes. NCSL supports a broad interpretation of this provision that would result in limited preemption of state laws.
Medical Records Privacy
Scope of Law
No patient identifiable medical information may be released without written and oral informed consent of the patient, unless otherwise exempted. A federal privacy statute should define a range of health care conditions and services and protect patient identifiable information, including demographic information, collected during the health care process. A federal privacy statute also should define "information" to include records held in whatever form possible -- paper, electronic, or otherwise. Strong protections for individuals from the inappropriate disclosure of their medical records should be established. Anyone who provides or pays for healthcare or who receives health information from a provider, payer, or an individual should be required to conform to the provisions of the law. Health care providers that do not have direct relationships with the patient must also abide by the same standards. A payer should not be required to provide a benefit or commence or continue payment of a claim in the absence of protected health information, as set forth in each state's statutes, to support or deny the benefit or claim.
Consumer Rights
Individuals should have the right to: (1) Find out what information is in their medical record; and (2) How the information is used. Practices and procedures must be established that would: (1) Require a written explanation from insurers or health care professionals detailing who has access to an individual's information; (2) Require insurers or health care professionals to tell individuals how that information is kept; (3) Inform individuals how they can restrict or limit access to their medical records; (4) Inform individuals how they can authorize disclosures or revoke such authorizations; and (5) Inform individuals of their rights should an improper disclosure occur. In general, individuals should be permitted to inspect and copy information from their medical record. Finally, a process should be developed for patients to seek corrections or amendments to their health information to resolve situations in which coding errors cause patients to be charged for procedures they never receive or to be on record as having conditions or medical histories that are inaccurate.
Accountability/Security
Severe penalties should be imposed on individuals who knowingly disclose medical records improperly, or who misrepresent themselves to obtain health information. Civil monetary and/or criminal penalties should be imposed on individuals who have a demonstrated pattern or practice of unauthorized disclosure. Any individual whose rights under the federal privacy law have been violated should be permitted to bring a legal action for actual damages and equitable relief. If the violation was done knowingly, attorney's fees and punitive damages should be available. Information should not be used or given out unless either the patient authorizes it or there is a clear legal basis, under state or federal law, for doing so.
Public Health
Under certain limited circumstances, health care professionals, payers, and those receiving information from them should be permitted to disclose health information without patient authorization to public health authorities for disease reporting, public health investigation, or intervention, as required by state or federal law.
Research
Research protocols and confidentiality standards should be continued and strengthened.
Law Enforcement
Law enforcement representatives should be required to have a court order to obtain information from an individual's medical record.
Preemption of State Laws
Federal legislation should provide every American with a basic set of rights with respect to health information; however, confidentiality protections provided in state and federal law should be cumulative, and the federal legislation should provide a floor, not a ceiling and only preempt state laws that are less protective.
Administrative Simplification
NCSL supports the administrative simplification provisions of the Health Insurance Portability and Accountability Act (HIPAA). These provisions: uniform claims forms, unified transaction and billing codes, guidelines for electronic claims processing and billing, and other related initiatives will result in improvements to our health care system. It is imperative that all affected entities, however; be afforded adequate time to implement these provisions. It is equally important for the federal government to coordinate all the related rules and regulations so that changes will not have to be made after implementation has begun. Federal and state governments should share information; however, confidentiality of medical records and information must be protected.
Federal Grants to Support the Establishment of State High Risk Pools
The Deficit Reduction Act of 2005 reauthorized this grant program which supports the creation and operation of state high risk pools. The program provides seed money for the creation of state risk pools and also provides “operating funds” to offset a portion of losses incurred by states operating a qualified high risk pool. NCSL supports this program and urges Congress to continue to fund it.
August 2009
The U.S. Department of Health and Human Services (HHS), particularly through the Centers for Disease Control and Prevention and the National Institutes of Health (NIH), plays an important role in supporting the state and local public health infrastructure. HHS provides national surveillance of infectious disease, applied research to develop new or improved diagnoses, prevention and control strategies, and helps strengthen state’s capacity to respond to outbreaks of new or reemerging disease. The CDC provides a global health perspective and assists states in detecting new and emerging diseases.
Federal support through grants and cooperative agreements, research and technical assistance is key to the stabilization and effective operation of the nation’s public health system and provides critical support for the state and local public health infrastructure. NCSL urges Congress to continue: (1) to support grants and cooperative agreements to states and local governments for a broad range of public health activities; and (2) to support research and technical assistance, which aides states in the development and implementation of effective programs. In addition, NCSL wishes to foster the development of public and private sector partnerships to increase community accessibility to public health information and public health programs.
Health Promotion and Disease Prevention
An informed public is an important component of a healthy society. NCSL urges the Congress to continue to support public health education initiatives that are culturally sensitive, age appropriate and written at the appropriate educational level for the audience. It is imperative that these public health education initiatives integrate healthy lifestyle choices and disease prevention messages and strategies targeted for children, young adults, men, women, the elderly as well as other specifically identified populations within the community who have special healthcare concerns, needs and risks.
Preventive Health and Health Services Block Grant
The Preventive Health and Health Services Block Grant provides funds to states for preventive health and health promotion activities and is the primary federal source of funding to states for health education and risk reduction activities; cholesterol, hypertension, and cancer screenings. States are given maximum flexibility to design and implement programs that meet the needs of their citizens. NCSL urges Congress to continue to support this program.
Preventive Health Screenings and Check-Ups
NCSL urges Congress to increase support for initiatives that promote regularized preventive health screenings and check-ups. NCSL is particularly supportive of efforts that provide information about and promote screening for: cardiovascular disease, dental disease; obesity, asthma, diabetes, cancer. We also support efforts to ensure that children receive age appropriate check-ups and screenings that include recommended childhood immunizations; and dental, vision and hearing screenings; and recommended treatment.
Chronic Disease Management
NCSL urges Congress to continue to support initiatives that promote the management of chronic conditions such as obesity, cardiovascular disease, dental disease, diabetes, asthma, kidney disease and a wide range of autoimmune diseases. Management of these conditions improves the quality of life of the individuals and their families and is more cost efficient for the health care system. NCSL is particularly supportive of initiatives that provide case management services to children with one or more chronic conditions. Early diagnosis, treatment and management is key to helping children with chronic conditions such as asthma and diabetes to stay on grade level at school and to become healthier adults.
Healthy and Responsible Lifestyle Choices
NCSL supports programs that promote healthy lifestyle choices, reducing high-risk behaviors through education, counseling and treatment. NCSL urges the federal government to provide adequate funding for the prevention and treatment of sexually transmitted diseases (STDs). NCSL also urges the federal government to develop additional education initiatives to better inform the public about the prevention, diagnosis and symptoms of the broad range of STDs. NCSL supports efforts to alert the public to the dangers of drug and alcohol abuse and supports special efforts directed to children and pregnant women. Special efforts must also be undertaken to highlight the dangers of sharing needles among intravenous drug abusers. NCSL supports efforts to inform the public of the dangers of smoking, second hand smoke, and the use of smokeless tobacco, including their relation to oral health, cardiovascular, lung, cancer of multiple types and other diseases. Special efforts should be made to warn pregnant women of the dangers of smoking, drug and alcohol use during pregnancy. NCSL also supports special efforts designed to educate children regarding the health effects of smoking and the use of smokeless tobacco. More must be done with respect to public education on the means of transmission and ways to avoid or minimize exposure to HIV-infection. Efforts should be made to target areas with a high incidence of sexually transmitted disease, tuberculosis, HIV-infection and/or intravenous drug abuse. NCSL supports federal efforts to inform the public about new therapies that improve the health status of HIV-infected individuals.
Oral Health
NCSL supports federal initiatives to promote oral health by encouraging individuals to have regular check-ups and to practice good oral hygiene. These initiatives should include educational activities that emphasize the importance of good dental hygiene and care to overall good health. While some of the best dental care in the world is available in the United States of America, many Americans are unable to access dental care because they lack of dental coverage and the means to afford the out-of-pocket cost of care. In addition, many areas both urban and rural have concerns about the distribution of dental professionals. NCSL supports efforts to increase access to quality, affordable dental care, including initiatives to improve public and private sector coverage of dental services, improve oral health literacy within the public, and provide states flexibility to develop innovative Medicaid dental programs to increase access to and utilization of oral health care services.
Medicare and Medicaid
The Medicare and Medicaid programs and services should include the goal of health promotion and disease prevention.
Health Education for Health Care Professionals
NCSL believes that health care professionals need to become better informed on health care promotion and disease prevention strategies so that they can better inform the people they serve. NCSL supports efforts to encourage institutions that train health professionals to include in their curriculum a greater emphasis on health promotion and disease prevention.
Access to Health Screenings and Disease Treatment
NCSL supports efforts to encourage insurers and other third party payers, including Medicare and Medicaid, to cover cancer-screening tests. NCSL supports federal initiatives to improve coverage of cancer screenings, tests and treatments that have been shown on the basis of evidence-based evaluation to be beneficial for the population served.
Ethnic and Racial Disparities in Health Status
NCSL urges the federal government to support and develop programs designed to reduce the disparity in life expectancy and the general health status of racial and ethnic minorities.
Childhood Immunization
NCSL supports initiatives designed to increase the overall number of children immunized. NCSL urges the federal government to continue and to increase public education initiatives designed to provide parents with the most up-to-date information regarding recommended immunizations for children. NCSL also supports continued research to improve the safety and efficacy of childhood immunizations. Finally, NCSL urges Congress to continue to allow states to set child vaccine coverage policy.
Adult Immunizations
NCSL urges the Congress to continue efforts to increase the number of adults who receive immunizations. NCSL supports the special efforts being made to encourage high-risk adults to receive flu shots.
Vaccine Supply
NCSL urges the Congress to appropriate sufficient funds to maintain a reasonable stockpile of pediatric vaccine, seasonal influenza vaccine and vaccines that may be used during a flu pandemic so that everyone who needs an immunization can be served.
Smallpox Vaccine
NCSL urges the CDC to continue to keep state and local governments informed regarding the appropriate use of the smallpox vaccine. We urge the federal government to continue research to develop a safer vaccine. NCSL supports the Smallpox Vaccine Injury Compensation Program, that provides compensation and health care coverage to public health workers and medical response team workers and people who have had contact with them who suffer adverse reactions or complications from the smallpox vaccine. These are important and necessary protections for public health workers, medical response team workers and their families. The implementing regulations for the compensation program set a high threshold for injuries that qualify for compensation. NCSL urges the Congress to evaluate the program if an event occurs that results in adverse reactions or complications from the smallpox vaccine and to make adjustments if necessary to provide appropriate care and compensation to qualified individuals.
Occupational Hazards/Workplace Safety
NCSL urges the federal government to support efforts to increase awareness of occupational hazards and ways to avoid accidents in the workplace. Information must be provided to employers and employees and should be included in the national effort to emphasize health promotion and disease prevention.
Health Care Workers
NCSL supports the decision by the Centers for Disease Control and Prevention (CDC) to continue to permit state and local health officials establish guidelines regarding procedures that health care workers infected with HIV or Hepatitis B should be permitted to perform. NCSL also supports the Blood-Borne Pathogen Standard rule promulgated by the Occupational Safety and | 
Acquired Immune Deficiency/HIV Infection