As of September 2022, over 90 million low-income individuals across the country were enrolled in Medicaid – the country’s means-tested entitlement program for provision of medical services and long-term care.^[1] Enrollment and coverage have increased significantly since the start of the COVID-19 pandemic, due in part to the continuous enrollment provision and other measures provided for in the Families First Coronavirus Response Act (FFCRA). These measures, however, are no longer in place, as they were set to begin phasing out on March 31, 2023.^[2] Both the federal government and the state governments should work together to prevent potentially catastrophic gaps in coverage for millions of individuals.

The federal government finances a portion of each state’s Medicaid spending, in amounts varying state-by-state based on the Federal Medical Assistance Percentage (FMAP).^[3] The FMAP by law cannot be lower than 50%, however in Mississippi and West Virginia, the two states with the highest FMAP, it exceeds 80%.^[4]

Although the baseline FMAP is calculated according to the average per-capita income of a particular state, it is complicated by various specialized provisions for specific populations (such as Native Americans and Alaska Natives, as well as ACA expansion populations) and for specific services (such as family planning services).^[5]

On three separate occasions the federal government has provided temporary increases across the board in response to crises.^[6] The Jobs and Growth Tax Relief Reconciliation Act of 2003 (JGTRRA) provided a 2.95 percent increase for five fiscal quarters in response to the 2001 recession.^[7] Similarly, the American Recovery and Reinvestment Act of 2009 (ARRA) provided an across the board 6.2 percent increase that continued through 2011 and then was incrementally phased down.^[8] These recession-related increases are a consequence of the fact that as a means-tested program, Medicaid is “countercyclical,” meaning that eligibility and enrollment increase when the economy suffers.

In March of 2020, under the FFCRA, Congress temporarily increased the FMAP again by 6.2 percentage points.^[9] As a condition of the FFCRA increase, states were required to provide continuous coverage for Medicaid enrollees during the public health emergency period.^[10] Since the passage of the FFCRA, Medicaid enrollment has grown significantly, by approximately 28%, for various reasons. These reasons include the economic impacts of the pandemic, the adoption of Medicaid Expansion in Nebraska, Missouri, and Oklahoma, and the continuous enrollment provision.^[11] This provision means that new enrollees, as well as those already enrolled before the start of the public health emergency, could not, and cannot be disenrolled from coverage, providing an incredible safety net to low-income individuals and families during the uncertain pandemic period.^[12] This safety net, however, is about to be undone.

The Consolidated Appropriations Act of 2023 has severed the link between the expiration of the public health emergency and the continuous enrollment provision, and has set an end date of March 31, 2023.^[13] This means that since April 1, 2023, states are now able to disenroll those individuals no longer eligible or who fail to meet administrative requirements.^[14] The FMAP increase will also be phased out.^[15] The implications of this will be enormous: the Kaiser Family Foundation estimates that between 5 and 14 million people will lose coverage, even as the risks and challenges of the pandemic wear on.^[16]

The end of the continuous enrollment privilege will also mean the return of “churn,” the term used to refer to the phenomenon in which Medicaid enrollees disenroll and then re-enroll in short order.^[17] Churn is both detrimental to access to care and administratively costly.^[18]  During normal times, states would have the option of providing 12-month continuous eligibility for children enrolled in Medicaid and CHIP, and as of January 2020, 32 states did so.^[19] But to extend continuous coverage to adults, states are required to seek section 1115 demonstration waivers, which are complex tools states can use to experiment with their Medicaid coverage policies.^[20] As of January 2020, only two states (Montana and New York) had sought and been approved for such coverage.^[21]

Under CMS guidance released in 2021 and 2022, states can seek special temporary waivers to resume normal enrollment procedures in a way that “minimizes beneficiary burden and promotes continuity of coverage.”^[22] States should take advantage of this process in order to conduct outreach, minimize interruptions in care, and preserve as much of the safety net as possible under the shifting statutory landscape.

 

^[1]Centers for Medicare and & Medicaid Services, September 2022 Medicaid and CHIP Enrollment Data Highlights (2023) https://www.medicaid.gov/medicaid/program-information/medicaid-and-chip-enrollment-data/report-highlights/index.html.

^[2]Centers for Medicare and & Medicaid Services, Key Dates Related to the Medicaid Continuous Enrollment Condition Provisions in the Consolidated Appropriations Act, 2023 1 (2023), https://www.medicaid.gov/federal-policy-guidance/downloads/cib010523.pdf [hereinafter Key Dates].

^[3]Kaiser Family Foundation, Federal Medical Assistance Percentage (FMAP) for Medicaid and Multiplier,  https://www.kff.org/medicaid/state-indicator/federal-matching-rate-and-multiplier/?activeTab=map&currentTimeframe=0&selectedDistributions=fmap-percentage&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D, (last visited Jan. 30, 2023).

^[4]Id.

^[5]Kaiser Family Foundation, Medicaid Financing: An Overview of the Federal Medicaid Matching Rate (FMAP) 2 (2012) https://www.kff.org/wp-content/uploads/2013/01/8352.pdf.

^[6]Congressional Research Service, Medicaid Recession-Related FMPA Increases 6 (2020), https://crsreports.congress.gov/product/pdf/R/R46346.

^[7]Id. at 10.

^[8]Id. at 11.

^[9] Pub. L. 116-127 §6008(a)-(b).

^[10]Congressional Research Service, supra note 6, at  7 tbl. I.

^[11]Jennifer Tolbert & Meghana Ammula, 10 Things to Know About the Unwinding of the Medicaid Continuous Enrollment Provision, Kaiser Family Foundation (2020) https://www.kff.org/medicaid/issue-brief/10-things-to-know-about-the-unwinding-of-the-medicaid-continuous-enrollment-provision/.

^[12]There are a few small exceptions not relevant here.

^[13]Key Dates, supra note, 2 at 6.

^[14] Id. at

^[15] Id. at

^[16] Tolbert & Ammulla, supra note 11.

^[17] Id.

^[18] Tricia Brooks & Allexa Gardner, Continuous Coverage in Medicaid and CHIP 6 (2021) https://ccf.georgetown.edu/wp-content/uploads/2021/07/Continuous-Coverage-Medicaid-CHIP-final.pdf.

^[19] Id. at 3.

^[20] Id.

^[21] Id.

^[22]Centers for Medicare & Medicaid Services, Promoting Continuity of Coverage and Distributing Eligibility and Enrollment Workload in Medicaid, the Children’s Health Insurance Program (CHIP), and Basic Health Program (BHP) Upon Conclusion of the COVID-19 Public Health Emergency 1 (2022), https://www.medicaid.gov/federal-policy-guidance/downloads/sho22001.pdf.