While other states are moving quickly to make Medicaid a stronger tool for fighting the COVID-19 pandemic, Wisconsin has been unable to do so. The Evers administration’s efforts to make needed changes to Medicaid have been stymied by the “lame duck” law, which prohibits many necessary actions the Governor and state agencies could take. As a result, the Legislature will need to meet and approve a bill removing those barriers, if Wisconsin is going to be able to make the needed Medicaid changes and qualify for about $50 million per month of increased federal funding for Medicaid.

Right now, 41 states have developed and submitted waivers that will strengthen the capacity of their Medicaid programs to respond to the deadly epidemic. The Wisconsin Department of Health Services (DHS) has tried to take steps that would strengthen the ability of health care providers to use Medicaid in the fight against the virus and would make Wisconsin eligible for an increase in federal Medicaid funding authorized by Congress. However, the co-chairs of the Joint Finance Committee have informed DHS that these changes cannot be submitted unless or until the full Legislature repeals their lame duck law or enacts a law explicitly authorizing the changes.  

The changes sought by DHS are contained in two requests.  The first of those would make a couple of minor changes to BadgerCare to meet the conditions imposed by Congress for states to qualify for a very substantial increase in Medicaid matching funds from the federal government. By meeting those conditions, which will also help protect people on BadgerCare, the state would receive about $150 million during each quarter in which the federal public health emergency is in effect.

The other waiver proposal developed by DHS includes a broad range of changes to adapt Medicaid for the pandemic.  Examples of the changes include the following:

• Temporary authority that makes it easier for health care providers to get Medicaid reimbursement while  fighting the pandemic. 
• Waiving prior authorization requirements. 
• Providing temporary authority to make Medicaid benefits more flexible and accessible – for example, by waiving face-to-face requirements and suspending cost-sharing requirements.
• Granting DHS more flexibility in enrolling people in Medicaid, in order to streamline processes and cope with an influx of new applicants. 
• Providing additional flexibility for delivery of long-term care services.

The lame duck law that Republicans rammed through the Legislature in the space of just a few days in December 2018 created these roadblocks. That law – 2018 Act 370 — severely restricts the flexibility of state agencies, including the ability to respond to emergencies. It not only requires many Medicaid changes to be explicitly authorized by statute, but also creates a cumbersome multi-stage process after that, which includes several different opportunities for the Joint Finance Committee to review and sign off on the waiver changes. 

Act 370 – which was rushed to passage despite the opposition of a broad coalition of health care providers — radically changed the balance of power between the Legislature and the executive branch. The lame-duck bill represents a 180-degree shift from the approach that the legislature took in 2011 during Governor Walker’s first year in office. The budget bill enacted that year granted the DHS Secretary unprecedented authority to make sweeping changes in Medicaid policy, even if those changes conflicted with state statutes or administrative rules.  It was almost a total abdication of legislative authority to set Medicaid policy. But after Evers was elected, the same legislators thought that the role of the executive branch should be exactly opposite the sweeping authority given to the Walker administration.  

The Legislature created the current prohibition against quick agency action, and legislators need to fix the problem by repealing or suspending the lame duck law and doing so as rapidly as they passed that law. 

If they fail to act, Medicaid will be a much weaker tool here than it should be as health care providers battle the pandemic.  And if that fact isn’t enough, legislative leaders need to understand that failing to act could cost our state hundreds of millions of dollars of federal funds that will be urgently needed in the months ahead to provide health care during this public health crisis.

Jon Peacock