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Aug 25, 2020

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Bethany Pray serves as CCLP's Chief Legal and Policy Officer. Her areas of expertise include regulatory analysis and advocacy for Medicaid and commercial coverage, access to behavioral health benefits, Medicaid eligibility and much more.Staff page ›

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How legal advocacy advances our mission

by | Aug 25, 2020

Family Economic Security, Health

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

 

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HEALTH:
HEALTH FIRST COLORADO (MEDICAID)

Health First Colorado is the name given to Colorado’s Medicaid program. Medicaid provides public, low-cost health insurance to qualifying adults and children. It is an entitlement program funded by the federal, state, and county governments and is administered by counties in Colorado. Those who are required to pay must pay a small co-pay when receiving certain health care services.

State Department: Department of Health Care Policy and Financing

Eligibility: Most adults 18 to 64 are eligible for Medicaid in Colorado if their household income is at or below 133% of the federal poverty limit (FPL). Pregnant women are eligible with incomes of up to 195% FPL, while children under 18 may be eligible if the live in a household with income at or below 142% FPL. Some adults over 65 may also be eligible for Medicaid.

Program Benefits: Through Medicaid, low-income Coloradans are eligible for a range of health care services at little to not cost. Services provided include doctors visits, prescription drugs, mental health services, and dental care. Co-pays for certain individuals may be needed for certain services.

Program Funding and Access: Colorado funds our Medicaid program through state and federal dollars. Medicaid is an entitlement program, which means that all who are eligible for Medicaid can access the program, regardless of the funding level in a given year. This does not mean that it is always easy to access Medicaid, even when eligible. And since the program is administered by counties, funding levels for county staff and other administrative roles can make it easier or harder for Coloradans to access the program. On top of this, not all medical providers accept Medicaid which limits the ability of Coloradans to seek health services even if enrolled, such as if the nearest provider is a 2+ hour drive away.

Note: This data is from before the pandemic and does not reflect changes in enrollment rules during the COVID-19 pandemic and public health emergency.

Statewide Program Access 2015-19: Over the study period of this report, an average of 89.0% of the population at or below 133% of FPL (i.e., the population who is likely to be eligible for Medicaid) were enrolled in Medicaid in Colorado.

FOOD SECURITY:
SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM (SNAP)

The Supplemental Nutrition Assistance Program or SNAP helps low-income Coloradans purchase food by providing individuals and families with a monthly cash benefit that can be used to buy certain foods. SNAP is an entitlement program that is funded by the federal and state governments and administered by counties in Colorado.

State Department: Department of Human Services

Eligibility: Currently, Coloradans qualify for SNAP if they have incomes below 200% FPL, are unemployed or work part-time or receive other forms of assistance such as TANF, among other eligibility criteria. Income eligibility for SNAP was different during the study period of this report than today—it was 130% FPL back in 2019 for example. The US Department of Agriculture uses the population at or below 125% FPL when calculating the Program Access Index (or PAI) for SNAP. We follow this practice in our analysis despite Colorado currently having a higher income eligibility threshold.

Program Benefits: SNAP participants receive a monthly SNAP benefit that is determined by the number of people in their household and their income. Benefit amounts decrease as income increases, helping households avoid a sudden loss of SNAP when their incomes increase, even by a minor amount. Benefits are provided to an Electronic Benefit Transfer (EBT) card that can be used to purchase eligible food items, such as fruits and vegetables; meat, poultry, and fish; dairy products; and breads and cereals. Other items, such as foods that are hot at their point of sale, are not allowable purchases under current SNAP rules.

Program Funding and Access: SNAP, like Medicaid, is a federal entitlement program. This means that Colorado must serve any Coloradan who is eligible for the program. As such, funding should not be a limit to how many Coloradans can be served by the program. However, funding for administration of SNAP at the state and county level can limit the ability of county human service departments to enroll those who are eligible. Other program rules and administrative barriers can make it difficult for Coloradans to receive the benefits they are legally entitled to receive.

Statewide Program Access 2015-19: Over the study period of this report, an average of 61.1% of the population at or below 125% of FPL (i.e., the population who is likely to be eligible for SNAP) were enrolled.

FOOD SECURITY:
SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS AND CHILDREN (WIC)

The Special Supplemental Nutrition Program for Women, Infants, and Children, also know as WIC, provides healthcare and nutritional support to low-income Coloradans who are pregnant, recently pregnant, breastfeeding, and to children under 5 who are nutritionally at risk based on a nutrition assessment.

State Department: Department of Public Health and Environment

Eligibility: To participate in WIC you must be pregnant, pregnant in the last six months, breastfeeding a baby under 1 year of age, or a child under the age of 5. Coloradans do not need to be U.S. citizens to be eligible for WIC. In terms of income, households cannot have incomes that exceed 185% FPL. Families who are enrolled in SNAP, TANF, Food Distribution Program on Indian Reservations (FDPIR), or Medicaid are automatically eligible for WIC. Regardless of gender, any parents, foster parents, or caregivers are able to apply for and use WIC services for eligible children.

Program Benefits: WIC provides a range of services to young children and their parents. These include funds to purchase healthy, fresh foods; breastfeeding support; personalized nutrition education and shopping tips; and referrals to health care and other services participants may be eligible for.

Program Funding and Access: WIC is funded by the US Department of Agriculture. The state uses these federal funds to contract with local providers, known as WIC Clinics. In most cases, these are county public health agencies, but that is not the case in all Colorado counties. Some WIC Clinics cover multiple counties, while others are served by multiple clinics. Private non-profit providers are also eligible to be selected as a WIC Clinic.

Statewide Program Access 2015-17: Between 2015 and 2017, an average of 52.2% of the population eligible for WIC were enrolled in the program in Colorado.

Financial Security:
Colorado Works

Colorado Works is the name given to Colorado’s program for Temporary Assistance to Needy Families or TANF. It is an employment program that supports families with dependent children on their path to self-sufficiency. Participants can receive cash assistance, schooling, workforce development and skills training depending on the services available in their county.

State Department: Department of Human Services

Eligibility: In general, Coloradans are eligible to enroll in TANF if they are a resident of Colorado, have one or more children under the age of 18 or pregnant, and have very low or no income. For example, to be eligible to receive a basic cash assistance grant through TANF, a single-parent of one child could not earn more than $331 per month, with some exclusions—and would only receive $440 per month (as of 2022). That said, there are other services provided by counties through TANF that those with incomes as high as $75,000 may be eligible for. In addition to these, participants in TANF are required to work or be pursuing an eligible “work activity” or work-related activity. Any eligible individual can only receive assistance if they have not previously been enrolled in TANF for a cumulative amount of time of more than 60 months—this is a lifetime limit that does not reset. Counties may have additional requirements and offer benefits that are not available in other counties in Colorado.

Program Benefits:  While the exact benefits that one is eligible for under TANF can vary, all qualified participants are eligible to receive a monthly cash payment, call basic cash assistance. Other than cash assistance, counties are have a lot of choice in how to use their TANF funding; generally a use of TANF funds is appropriate so long as it advances one or more of the four purposes of the program: (1) provide assistance to needy families so that children can be cared for in their own homes or in the homes of their relatives; (2) end the dependence of needy families on government benefits by promoting job preparation, work, and marriage; (3) prevent and reduce the incidence of out-of-wedlock pregnancies; and (4) encourage the formation and maintenance of two-parent families.

It is important to note that those eligible for TANF are also eligible for many of the other programs we’ve included in this report, such as SNAP, Medicaid, and CCCAP.

Program Funding and Access: Colorado funds its TANF program through funds received from the federal government through the Temporary Assistance for Needy Families block grant. Most of the federal funds are allocated by the state to counties, which are required to provide a 20% match of state funding. Federal and state rules allow the state and counties to retain a portion of unspent funds in a TANF reserve.

Statewide Program Access 2015-19: Over the study period of this report, an average of 50.7% of the population at or below 100% of FPL (i.e., the population who is likely to be eligible for TANF) were enrolled in TANF in Colorado.

EARLY LEARNING:
COLORADO CHILD CARE ASSISTANCE PROGRAM (CCCAP)

The Colorado Child Care Assistance Program provides child care assistance to low-income families and caregivers living in Colorado in the form of reduced payments for child care. It is a program funded by the federal, state, and county governments and is administered by counties in Colorado. The share owed by parents/caregivers is determined on a sliding scale based on the family’s income.

State Department: Department of Early Childhood Education

Eligibility: Counties set eligibility for families separately, but must serve families with incomes at or below 185% of the Federal Poverty Limit. Families accepted to the program are no longer eligible once their income exceeds 85% of the state median income. Parents or caregivers must be employed, searching for work, or engaged in another approved activity to be eligible for CCCAP. Parents and caregivers enrolled in Colorado Works (Temporary Assistance to Needy Families or TANF) or in the child welfare system are also eligible to participate in CCCAP. Generally, CCCAP serves families with children under 13, although children as old as 19 may be eligible under certain circumstances.

Program Benefits: If a family is eligible for CCCAP and has income, they may likely have to pay a portion of their child’s or children’s child care costs each month. The amount that families owe is based on their gross income, number of household members, and the number of children in child care in the household. As such, households tend not to experience a benefit cliff with CCCAP when they see their incomes increase

Program Funding and Access: Colorado funds the CCCAP program using federal dollars it receives from the Child Care and Development Block Grant program. The state allocates federal and state funds to counties using a formula that takes into account factors like current caseloads and the number of eligible residents. Assistance is available until the county’s funds are spent, so the number of families that can be served is often a function of how much funding is available and the income and composition of the household that applies. It is not uncommon for counties to overspend or underspend their allocations of funds. The state reallocates unspent funds from counties who underspent to those who overspent. While underspending could indicate a problem with the way a county administers its CCCAP program, it could just as likely be a sign that there are few providers in the county who participate in CCCAP—or a lack of providers generally.

Statewide Program Access 2015-19: Over the study period of this report, an average of 10.8% of the population at or below 165% of FPL and younger than age 13 (i.e., the population who is likely to be eligible for CCCAP) were enrolled in CCCAP.

Housing:
HUD rental assistance programs

The US Department of Housing and Urban Development (HUD) has three housing assistance programs that we look at together: Housing Choice Vouchers (Section 8), Project-based Section 8, and Public Housing. In Colorado, these programs provided assistance to over 90% of the households who received federal housing assistance from all HUD programs. Through federally funded, local or regional public housing agencies (PHAs) are the agencies that administer these programs, through not all are available in all counties. These are not the only programs available in Colorado that assist households afford the cost of housing, such as units funded through federal and state tax credit programs.

State Department: Department of Local Affairs

Eligibility: Generally, households with incomes under 50% of the area median income (AMI) of the county they live in are eligible for these rental assistance programs, although PHAs have discretion to select households with incomes at higher percentages of AMI. That said, HUD requires that 75% of new vouchers issued through the Housing Choice Voucher/Section 8 program in a given year are targeted to households with incomes at or below 30% of AMI. PHAs are also able to create criteria that give priority to certain types of households who are on waiting lists for these programs.

Program Benefits: These rental assistance programs help households afford the cost of housing by reducing their housing costs to around 30% of their household income. In the case of the Housing Choice Voucher program, the PHA pays the voucher holder’s landlord the remaining portion of the rent.

Program Funding and Access: Funding and access are both challenges for these rental assistance programs. In addition to limitations on the number of public housing units or housing vouchers a PHA can manage or issue, lack of funding compared to the need constrains the ability of PHAs to assist low-income households. In 2020, Coloradans were on waitlists for Housing Choice Vouchers for an average of 17 months. Waitlists also exist for the other rental assistance programs.

Statewide Program Access 2015-19: Over the study period of this report, an average of 21.1% of renter households with incomes at or below 50% AMI (i.e., the population who is likely to be eligible for HUD rental assistance programs) were living in subsidized housing.