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Concerned about the well-being and rights of dually eligible older and disabled people, 38 national, state and local advocacy organizations, individual advocates, and law professors sent the following letter to Secretary of Health and Human Services Kathleen Sebelius on December 13, 2010.  The letter urges her to promulgate regulations that would protect those dually eligible for Medicare and Medicaid, as well as others affected by demonstration programs authorized by the Affordable Care Act that are to be developed in the new Center for Medicare and Medicaid Innovations within the Centers for Medicare & Medicaid Services (CMS).[i]


We are grateful to CMS officials who responded to the letter with an offer for a meeting in early 2011.


The full text of the letter is reprinted below:


Honorable Kathleen Sebelius


United States Department of Health and Human Services

Washington, DC 20201


Re:  Center for Medicare and Medicaid Innovations provisions concerning beneficiaries dually eligible for Medicare and Medicaid


Dear Madam Secretary,


We write to you to urge you to promulgate regulations that protect beneficiaries' rights under Medicare and Medicaid in the implementation of the provision of the Affordable Care Act that establishes a Center for Medicare and Medicaid Innovations (CMMI).  And, specifically, we urge that, if you exercise your authority to test a model for integrated care for individuals dually eligible for Medicare and Medicaid that would involve giving States management and oversight of Medicare monies, you do so strategically and narrowly.  We do not favor that model.


The undersigned organizations and individuals embody decades of experience in representing Medicare and Medicaid beneficiaries and in providing legal and policy analysis and scholarship related to the Medicare and Medicaid programs.   All have been actively engaged in the conversation about health care reform leading up to the passage of the Affordable Care Act in March of this year.  All have been involved in ongoing discussions and activities relating to implementation of the law.  The recommendations, summarized below and discussed more fully in the attached document, were informed by decades of experience writing about and analyzing the two programs and by daily contact with Medicare and Medicaid advocates and beneficiaries.


As you know, those individuals dually eligible for Medicare and Medicaid are among the poorest, sickest and most frail of our entire population.  They have a high incidence of chronic conditions and are high users of health care services.  They are less well educated, more often minorities, and more often live alone or in institutions than other Medicare beneficiaries.  They need easy access to the best health care and the assurance that their rights are protected in the process.


While the particular focus of our request for regulations is the model that would allow states to manage and oversee Medicare funds in pursuit of full integration of care for dually eligible individuals, the protections we are seeking are more broadly applicable to many of the models proposed under the CMMI.


As more fully developed in the document attached to this letter, regulations should require that:

  • Beneficiaries who are dually eligible for Medicare and Medicaid are provided access to the full coverage, benefits and appeal rights of each program, regardless of the delivery system used to provide benefits and regardless of the entity administering the funds;

  • Beneficiaries' right under both programs to free choice of provider is fully protected such that beneficiaries are not required to join any particular demonstration or  type of service delivery system to get services;

  • All models approved under this provision are subject to rigorous financial audit of the use of program monies to assure that Medicare dollars are not used by states to supplant Medicaid dollars;

  • The processes for developing and selecting models, demonstrations and waivers under authority of this section of law are fully transparent and available to the public;

  • Provider payment rates under any approved model are sufficient to ensure access to needed providers;

  • Any model designed to meet the special needs of the dually eligible population or a subpopulation of those dually eligible actually provides services to meet those special needs;

  • Any private plans used in delivering services under any model approved under this provision must subject themselves to Freedom of Information Act requirements for public access to information;

  • All models approved under this provision are subject to rigorous monitoring by the Centers for Medicare & Medicaid Services of compliance with the law, regulations and negotiated terms of the model or waiver approval;

  • All models approved must provide for the delivery of all care and services in a culturally competent manner with attention to language access issues for those for whom English is not their first language; and

  • Any state considered for operating a model in which it would manage and oversee Medicare funds must demonstrate that it has been a good steward of Medicaid dollars it has administered and must promise to use at least some of any savings generated to expand services.

Codifying into regulations the protections identified above is especially important since the provision establishing the CMMI precludes judicial review of the selection and implementation of models.


We look forward to working with you as your Department and the Center for Medicare and Medicaid Innovations explore creative ways to improve health care for those individuals in our society who most need access to high quality health care services.




Center for Medicare Advocacy, Inc.

American Society on Aging

Center for Advocacy for the Rights and Interests of the Elderly (PA)

Christopher Holly, Attorney and Medicare Advocate, (IN)

Connecticut Legal Services, Inc.

Diane Hoffman, Professor of Law, University of Maryland School of Law*

Diane Paulson, Medicare Advocacy Project of Greater Boston Legal Services on behalf of clients

Empire Justice Center (NY)

Francine Chuchanis, Medicare Advocate, (OH)

Gray Panthers

H. Amos Goodall, Jr., Esq., LL.M, CELA, Attorney and Medicare Advocate (PA)

Judy Feder, Senior Fellow, Center for American Progress

Legal Aid Society of San Mateo County (CA)

Legal Assistance Resource Center of Connecticut

Legal Services for the Elderly (ME)

Legal Services of Southern Piedmont (NC)

Long Term Care Community Coalition (NY)

Michael Myers, Professor of Law, University of South Dakota School of Law*

Michelle Baumeister, NAELA member and Medicare Advocate (OH)

Michigan Campaign for Quality Care

Michigan Poverty Law Program

Nan D. Hunter, Professor of Law, Georgetown University Law Center*

National Association for Home Care and Hospice

National Center for Lesbian Rights

National Committee to Preserve Social Security and Medicare

National Consumer Voice for Quality Long-Term Care (formerly NCCNHR)

National Health Law Program

New Haven Legal Assistance Association (CT)

New Mexico Center on Law and Poverty

New Yorkers for Accessible Health Coverage

Patricia E. Kefalas Dudek, Attorney and Medicare Advocate (MI)

Rebecca C. Morgan, Professor of Law, Stetson University College of Law* (FL)

Reginald Turnbull, Attorney and Medicare Advocate (MO)

Rita Blackwood, The Special Needs Trust Network, Inc. (CO)

Senior Citizens' Law Office (NM)

Timothy Stoltzfus Jost, Professor of Law, Washington & Lee University Law School* (VA)

Tim Westmoreland, Visiting Professor of Law, Georgetown University Law Center*

Yahne Miorini, Attorney and Medicare Advocate (VA)


* Affiliation for identification purposes only


cc:  Donald Berwick, MD, Administrator, Centers for Medicare & Medicaid Services

      Richard Gilfillan, MD, Acting Deputy Administrator and Director, Center for Medicare and Medicaid

      Melanie Bella, Director, Federal Coordinated Health Care Office


[i] The Center thanks the O'Neill Institute of Georgetown University for supporting this work.

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