In promoting racial equity and economic security for Coloradans facing poverty, Colorado Center on Law and Policy uses a set of tools to improve access to housing, food, income and health care. Those tools – legislative advocacy, coalition building, research and policy analysis, and legal advocacy – might really be called toolboxes, because each of those approaches comes with a range of options.

Our legal advocacy often develops in conversations with community partners and national organizations, moves forward in rule-making hearings or in meetings with state agencies or the Attorney General’s office and resolves in those settings with an adjustment to state policy.

The legal advocacy work also involves representing or working informally with individuals denied Supplemental Nutrition Assistance Program (SNAP) benefits or Medicaid services in administrative hearings at the Office of Administrative Courts; something that CCLP does especially when cases have broader implications. Litigation is considered a last resort, explored only when other approaches don’t bear fruit.

One case history
Our advocacy regarding Colorado’s Medicaid home health program is a good example of how we use our full toolbox.

Through connections to community members, CCLP learned in July 2019 that requests for skilled nursing services from hundreds of children with disabilities – some of whom had received the same level of services for years – had been reduced or entirely denied.

Families were confused and panicked. When we began collecting the notices individuals had received, it was clear that many notices were garbled and lacked essential information, such as appeal rights or tag-lines that alert non-English speakers to a way to get the information. Both the decisions and the related denial notices were the work of a state vendor, eQ Health Solutions.

None of the notices we reviewed would have given readers the information they needed to understand whether they should appeal and how to prepare for a hearing. CCLP’s understanding of the legal requirements and due process implications of inadequate notice resulted in meetings beginning August 2019 with our state Medicaid agency, the Department of Health Care Policy and Financing (HCPF), to push for restoration of benefits while notices were re-tooled.

When those efforts stalled, CCLP worked with the Colorado Lawyers Committee and got support from the Polsinelli Law Firm to apply additional pressure. The result was positive: across-the-board restoration or continuation of benefits for those who had received denial notices during the second half of 2019.  People who had already filed appeals then got additional help from CCLP, Colorado Legal Services and Disability Law Colorado to understand the effect of the restoration letter and to resolve their hearings.

The next phase of work was to examine the state’s and eQ Health’s process for assessing children’s eligibility for services. Children are entitled to a more generous Medicaid benefit through the federal Early and Periodic Screening, Diagnostic and Treatment (EPSDT) program, established in the 1990s. EPSDT was designed to deliver a robust set of services early on and improve a child’s chances of growing into healthy adulthood. In the past, we’ve used advocacy in rule-making to protect inclusion of EPSDT requirements in state Medicaid rules.

Despite clear language in our state rules, our legal analysis for the skilled nursing cases  suggested that the state was not considering the expanded requirements of EPSDT when it evaluated whether requested skilled nursing services were medically necessary for a child. Our analysis was thorough, based on guidance from federal partners, legal research and review of ongoing litigation in other states.

In addition to sharing our interpretation of EPSDT requirements with the state, we have filed a challenge in state court to an administrative decision. We believe the underlying administrative court decision is a good example of a situation where the process failed to include EPSDT considerations. A positive resolution of that case can help establish clear policy for the state and its vendor when decisions are made, and could certainly arise through agreement rather than drawn-out or contentious litigation.

Other legal advocacy examples
CCLP’s legal advocacy work is also meant to supplement HCPF’s program oversight. Over 100 state partners, including Colorado’s counties and case management agencies, are involved in application and enrollment processes, and oversight is challenging.

Two years ago, CCLP worked with a family denied the opportunity to enroll in Medicaid because the child lacked a Social Security number, even though he had an eligible status. HCPF staff quickly sought to rectify the problem, addressed the issue with the county and case management agency staff, and instituted a series of rule changes with CCLP input that clarified eligibility, Social Security number requirements and immigration status.

Despite ongoing work on the department’s part in the intervening time, another similar case came to our attention this year. Again, with the department’s help, that child was able to enroll in coverage and the department gained valuable information about county training needs and technical glitches. Armed with that knowledge, the state can ensure that more eligible Coloradans can get covered and avoid the catastrophic health and economic consequences of going without.

Likewise, for food assistance or SNAP benefits, CCLP’s enforcement work helps identify practices at the county or state level that violate federal requirements. Through work with community groups and our partnership with Colorado Legal Services, we’ve learned that counties may take many months to act on information that could indicate that an individual is receiving an overpayment of SNAP and allegations of intentional program violations are sometimes levied years after the information is first flagged.

Federal timelines, however, require prompt action to investigate and take action on potential overpayments. Prompt action on overpayments helps program participants present evidence in their favor while the case is still fresh, while ensuring that counties preserve the program’s integrity. In addition to advocating on this issue with staff at the Department of Human Services, CCLP is partnering with Colorado Legal Services on individual litigation.

Our legal advocacy can affect single Coloradans, hundreds, or many thousands.

The COVID crisis, for example, resulted in a slate of federal bills that had to be implemented quickly, and whose implications are broad.

Our legal analysis helped identify a group of up to 30,000 Coloradans that should have been protected from loss of coverage by the Families First Coronavirus Response Act, and discussion with HCPF staff led quickly to a shift in their decision regarding the eligible group. Currently, we are partnering with other organizations and advocating with HCPF to ensure that individuals at risk of losing coverage when the federal emergency ends retain all the protections that the Medicaid Act provides. We have advocated through emergency rule-making to establish those protections and will use other enforcement tools as needed.

Why legal advocacy matters
New legislation is a powerful force for change, but the range of tools in the litigation toolbox must be employed for years or decades after a bill is enacted to ensure that the promise of legislation can be fulfilled.  The Medicaid Act and the federal Farm Bill, which authorizes the SNAP program, are cases in point. What needs will arise regarding enforcement of other health-related laws or new housing legislation in Colorado, for example, are questions that communities are just beginning to answer.

CCLP will be there, strengthening connections with community, identifying issues, talking with state agencies and other stakeholders and – only when absolutely necessary – working with our legal partners to litigate.

– By Bethany Pray