By Marsha Simon
While Congressional freshmen have attracted much of the media coverage in the U.S. House of Representatives, another group of Democrats is exerting renewed influence—the Congressional Black Caucus (CBC). One issue where they have been active is Medicaid Non-Emergency Transportation (NEMT). Currently, states must provide this transportation to Medicaid beneficiaries who need assistance traveling for medical care, but the Trump administration proposes to make this benefit optional for states.
Medicaid NEMT provides over 100 million rides annually to medical appointments for beneficiaries who do not have transportation (figures are from internal data of LogistiCare Solutions, the largest Medicaid NEMT benefits manager). The benefit is used primarily by people with chronic conditions such as end-stage renal disease, AIDS, and substance use disorder who depend on Medicaid NEMT to access life-sustaining medical care (LogistiCare Solutions’ internal data). By providing that access, NEMT allows many people to continue living independently who might not otherwise be able to do so. The benefit is used by about 7% of beneficiaries (LogistiCare Solutions’ internal data) and makes up about 0.5% of total Medicaid spending (Abraham, 2018).
Although Medicaid NEMT has been a mandatory benefit since the beginning of the program in 1966, the provision of NEMT is mandatory only by rule, not by statute. This benefit was noncontroversial for decades but has drawn the attention of conservatives in recent years as the Affordable Care Act, through its Medicaid expansion, extended the NEMT benefit to poor adults without disabilities or dependents.
The Centers for Medicare and Medicaid Services (CMS) of the Department of Health and Human Services (HHS) sets rules for state Medicaid programs, and can approve states' requests to waive certain requirements. CMS has approved waiver requests from Iowa, Indiana, and Kentucky to drop the NEMT benefit for Medicaid enrollees who are eligible for the program under the Affordable Care Act's Medicaid expansion. The rationale for doing so is that going without Medicaid-funded transportation prepares these Medicaid beneficiaries for private insurance that typically does not include NEMT.
In 2019, after thirteen terms in Congress, CBC member Representative Sanford Bishop (D-GA-2) became the Chair of the Appropriations Subcommittee for Agriculture, Rural Development, Food and Drug Administration and Related Agencies. His district in Southwest Georgia is poorer and more rural than most, and his constituents are disproportionately likely to require kidney dialysis and to participate in Medicaid—all of which makes Medicaid NEMT particularly important. In the previous Congress, he led opposition to attempts to repeal regulations requiring states to provide NEMT in Medicaid.
The Trump administration’s Fall 2018 Unified Agenda of planned regulatory actions included a CMS rule on non-emergency medical transportation in Medicaid, with a proposed rule slated to be published in May 2019. Although the agenda did not provide details on the rule’s content, the Fiscal Year 2019 President’s Budget for HHS indicated that the NEMT benefit would become optional. Since January 2019, when Democrats retook the majority in the House, the Congressman has effectively utilized his influence as an Appropriations Subcommittee Chairman by deploying an appropriations device to block CMS’s rulemaking.
At the very first meeting of the CBC in January 2019, Rep. Bishop circulated a letter asking the Chair and Ranking Member of the House Labor, Health and Human Services, Education and Related Agencies (LHHS) Appropriations Subcommittee to include a limitation that would prevent CMS from publishing the proposed regulation. Limitations are common in appropriations bills; they restrict the way in which executive branch agencies (in this case CMS) can spend money.
All 53 CBC members signed Rep. Bishop’s letter, and he added bipartisan support for his effort by recruiting Reps. Buddy Carter (R-GA-1), Tom Graves (R-GA-14), and Blaine Leutkemeyer (R-MO-3) to also ask the LHHS Subcommittee to include the limitation. At the markup of the House LHHS Appropriations bill in May, Rep. Bishop spoke in support of NEMT benefits, after which the limitation passed by a voice vote as part of a Democratic managers’ package. This package is a suite of amendments in a markup that are assured of passage because they are agreed to in advance.
Less than three weeks later, the Spring 2019 Unified Agenda showed the CMS rule had moved from the “Proposed Rule” stage to the list of “Long-Term Actions,” with the expected publication date delayed from May 2019 until December 2021, after the upcoming presidential election.
Although the actions he and his allies took might have persuaded CMS to make this rule less of a priority, Representative Sanford has taken additional steps to safeguard the NEMT benefit in Medicaid. After CMS delayed the rule process, he again joined with Reps. Tom Graves and Buddy Carter to send a letter to CMs Administrator Seema Verma asking her not to publish the regulation until the agency has determined its impact on Medicaid beneficiaries. He also coordinated with Reps. Carter, Graves, and Tony Cárdenas (D-CA-29) to introduce authorizing legislation that would codify the NEMT benefit in statute. Senate action on the issue is still pending in the majority Republican chamber, where there also is bipartisan support to block the CMS policy.
Marsha Simon, PhD, is an expert in legislative strategy, nonprofit management, and public policy research. She is president of MJ Simon & Company and a professorial lecturer in the Department of Health Policy and Management at the George Washington University Milken Institute School of Public Health.