For ‘medically frail,’ judge’s decision on Medicaid expansion work requirement comes as a relief

  • Diane Roberts, the work requirement exemption for “medical frailty” has been elusive. GEOFF FORESTER / Monitor staff

  • Diane Roberts points to the spot where she caught her foot on bagged leaves and fell from the top of the truck. GEOFF FORESTER / Monitor staff

  • In May 2015, Diane Roberts (above and top) fell from a packed truck bed and suffered a head injury that has required several surgeries and ongoing care. She has struggled to navigate her way through the Medicaid expansion work requirement that was blocked in federal court last week. Photos by GEOFF FORESTER / Monitor staff

Published: 8/3/2019 10:58:15 PM

For people like Diane Roberts, the apparent death of the Medicaid expansion work requirement was a relief.

The 63-year-old Penacook native has paid her bills for decades hauling trash. For years, she and her husband, James, woke up as early as 4 a.m. to drive across Merrimack County in her 1988 Chevy dump truck. Roberts often jumped into the back of her truck, packing rubbish down like she was stomping grapes into wine.

But in May 2015, Roberts caught her foot on bagged leaves, fell from the top of the packed truck bed and smacked her head on the ground. An aneurysm a week later caused her to be rushed to a Massachusetts hospital. Since then, she’s suffered several more aneurysms, and her condition causes her to become exhausted easily.

Roberts struggled for months to get an exemption to New Hampshire’s Medicaid expansion work requirement for “medical frailty” – a designation that requires attestation by a doctor or health professionals. But for weeks her doctors refused to fill out the form, and Roberts began to feel desperate as the deadline to show she had complied approached.

“I was going to give up on myself and not go to the doctor’s anymore,” she said Tuesday afternoon while replacing the overfill tank in her dump truck.

Roberts was one of the thousands of people in New Hampshire at risk of losing health insurance under the state’s expanded Medicaid program work requirement – up until Monday, when a federal court blocked implementation of that requirement.

On Monday, a federal judge ruled that the Trump administration had not adequately addressed the potential loss of health coverage for low-income residents, mirroring similar rulings by the same judge on similar cases out of Kentucky and Arkansas.

Roberts may not be out of the woods yet. Republican Gov. Chris Sununu expressed disappointment with the ruling and vowed to legally defend the requirements.

“A ruling from one federal trial court judge in Washington, D.C., is only the first step in the process, and we are confident that New Hampshire’s work requirement will ultimately be upheld,” Sununu said in a statement.

But New Hampshire Legal Assistance said the fight is finished.

“We are really thrilled with the decision yesterday; it’s going to provide our clients with real peace of mind,” said NHLA policy director Dawn McKinney, who described the work requirement as “dead.”

McKinney said the decision means there is no longer a date hanging over the heads of people like Roberts to get a work requirement exemption. The state recently pushed back the work requirement compliance date to Sept. 30 after finding fewer than a third of the 25,000 people subject to the rules were in compliance in June.

It’s possible, however, that Roberts will still need the exemption she’s been seeking since April. McKinney noted the state has the ability to appeal the decision.

“We would have to see what the state decides to do,” she said. “I think they would have to go back to the drawing board.”

Roberts wasn’t able to get the waiver because both her primary care doctor and specialist in Boston have refused to sign the form, she said, despite multiple visits to both. She said her specialist told her it would be more appropriate for her primary care doctor to sign the form; her doctor said state guidelines do not require them to fill out the form.

NHLA’s Ray Burke, who was helping Roberts navigate the system, said her case demonstrated the administrative burdens that work requirements – 100 hours per month – placed on patients and providers.

“For the past month, Diane has been having to make several trips, not only here … and then to DHHS’s (the Department of Health and Human Services) offices, and then to her doctor’s offices,” he said during a recent interview. “So while she’s supposed to be at home resting, especially during the summer heat, she’s been making several weekly, if not more frequently, trips just trying to get this sorted out.”

Diane’s experience

The night after her fall, Roberts said shooting pains traveling from her head to her neck sent her to the hospital. On May 31, 2015, a week later, an aneurysm in her brain ruptured, and her family found her unconscious on the floor of their Penacook home, she said.

Emergency personnel ultimately sent her to Beth Israel Deaconess Medical Center, and Roberts spent over a month and a half in coma. Doctors and family members were unsure if she would survive.

“They told my kids, ‘You better say goodbye to your mom, because she might not make it,’ ” Roberts said in a recent interview.

Since then, Roberts has had more hemorrhages and multiple surgeries to fix them. A patchwork of titanium implants, three stents and a pipeline – a device that diverts blood flow from an aneurysm – create ridges and bumps on her skull. Her neurosurgeon in Massachusetts told her another fall could cause more damage.

“He wants me to retire,” she said. “He said, ‘Diane, your life is worth more than your work.’ And I went on and argued with him about I need the money, I can’t afford it.”

After her series of surgeries, Roberts is stable but experiences intense headaches, fatigue and respiratory problems if she works more than a few hours a week.

She was first informed that she must meet Medicaid’s work requirements on April 1. About a week later, she received two more notices along with two exemption forms she needed to fill out if she was going to claim she was too frail to work, according to a timeline put together by Burke.

Roberts visited her provider at Dartmouth-Hitchcock’s Concord campus to ask her doctor to fill out the form on April 16. But Dartmouth-Hitchcock refused, she said, saying her neurosurgeon in Massachusetts would have to sign.

Eight days later, Roberts visited her primary care provider for an unrelated doctor’s visit scheduled in October. But she said her doctor not only reiterated they would not sign the form but refused to do a physical examination. Roberts then faxed the exemption form to her neurosurgeon.

But her specialist told Roberts it would be more appropriate for her primary care doctor to sign the form. As the July 1 deadline to get a work requirement exemption approached, Roberts said both facilities insisted the other should make the medical frailty determination.

With a deadline looming, she then took her case to the DHHS’s ombudsman, a panel tasked with resolving complaints and disagreements in matters that involve DHHS.

“I’ve met with my primary care provider on two separate occasions to request an Exemption and was told that they would not complete the form,” Roberts wrote in a June 11 letter to DHHS. “I’ve also reached out to my neurosurgeon in Massachusetts, but because this is a New Hampshire program requirement they are not able to assist me.

“... Not being able to fulfill the 100-hour work requirement could cost me more than my medical coverage,” she continued. “It is my strong opinion that my medical history … proves that I should not be working the amount of hours that has been set by DHHS for me to have access to insurance.”

The ombudsman denied Roberts’s request.

Concerns over ease, accountability

Roberts’s plight is tied to a key piece of New Hampshire’s renewed Medicaid expansion law: medical frailty.

Under expanded Medicaid – which covers anyone in the state making up to 138% of the federal poverty line, or $35,535 for a household of four – those who are deemed too infirm to conduct daily activities with ease are medically frail.

The distinction has long been central: It used to determine what kind of health insurance Medicaid expansion recipients would receive.

But under New Hampshire’s now-shuttered work requirement, it took on special importance: Those who were medically frail could suddenly become exempt.

The difference? While in early years of the program patients could self-attest that they met medical frailty, in 2018 lawmakers changed the law to require doctors’ approvals. And when the work requirement kicked in, those provider sign-offs proved critical to patients like Roberts who were at risk of losing their entire coverage without them.

For Sen. Jeb Bradley, the Wolfeboro Republican who helped push through the 2018 renewal of Medicaid expansion, adding the requirement that physicians attest to medical frailty was key to preventing fraud.

“Obviously there’s fraud statutes,” Bradley said. “But it just becomes easier to self-attest.”

He added it was up to providers and advocacy groups to pitch in. “I think there’s a responsibility now for advocates to work with this population so that they can comply,” he said.

Sen. Cindy Rosenwald, a Nashua Democrat, disagreed. “I think we have this image of medically frail that it’s somebody’s grandmother who’s hunched over in a walker. It isn’t. It’s people with a mental health and substance use disorder in large measure. Do we want to use up time and expense in the health care system by making people go to the doctor to get a form signed?”

This year, as Democrats pushed for changes to alleviate New Hampshire’s work requirement, lawmakers considered reverting back to the self-attestation option. But the move was struck down in the interest of compromise, Rosenwald said.

Then the work requirement was struck down anyway.

What DHHS and
experts have to say

It’s unclear whether providers have an obligation to educate patients about work requirements and assess them for exemptions. Institutions appear to be handling it differently.

Rick Adams, spokesperson for Dartmouth-Hitchcock, says the institution will help patients navigate the work requirements but will not make determinations of their eligibility for Medicaid.

“Under New Hampshire Medicaid’s community engagement requirements, our providers are not obligated to notify our patients of those requirements or make determinations about our patients’ compliance with those requirements,” he said in an email.

Dominic Geffken, a family physician with Concord Hospital’s family health center, said he has been filling out exemption forms for his patients for months.

He said many patients were unsure if they needed a letter or an assessment from their doctor to get an exemption.

“I think it was a little confusing on the form who was supposed to fill it out,” he said. “...We have a lot of forms thrown at us in primary care. A lot of government forms come our way; it can be hard to navigate.

“It fell in that category of the form that could be interpreted in several different ways,” he said.

Geffken said Concord Hospital’s family health center serves as the “safety net hospital” for the greater Concord area, and serves patients who might have a difficult time getting primary care elsewhere.

Geffken said he gives patients who are seeking an exemption a physical exam and looks at their medical records to determine if they qualify.

If they have a condition he’s not familiar with, Geffken said he might ask a specialist colleague to make an assessment.

But Geffken said he’s worked with several of his patients since he started at the health center 15 years ago. That relationship helps him know whether they qualify for an exemption.

“That’s the beauty of primary care: You get to know people over time, what they’re capable of and what their challenges might be,” he said.

(Material from the Associated Press was used in this report.)

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