Biden HHS sends warning shot to states on civil rights as COVID emergency expires, Medicaid users 'vulnerable'

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HHS Secretary Becerra refuses to answer question on federal employee telework

HHS Secretary Xavier Becerra refused to answer questions on March 22, 2023, about how many of his employees at headquarters are still telecommuting, more than three years after the COVID pandemic.

The Department of Health and Human Services (HHS) warned states this week that they could run afoul of federal civil rights laws if they move too quickly to remove people from Medicaid as the COVID emergency unwinds, and asked them to ensure that eligible minorities, people with disabilities and those with limited English proficiency (LEP) are not removed from the rolls by mistake.

In a letter sent to each state, HHS’s Office of Civil Rights (OCR) said that while millions of people are expected to be removed from Medicaid as the COVID emergency ends, states need to make sure they give people in "vulnerable communities" a chance to show they still deserve coverage.

"As states head into this unwinding period, prioritizing language access and effective communication obligations will go far to prevent people of color and individuals with LEP or disabilities from being disenrolled as a result of inaccessible communications," said OCR Director Melanie Fontes Rainer.

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The Department of Health and Human Services, run by Secretary Xavier Becerra, is warning that states could be in violation of civil rights laws if they move people too quickly off of Medicaid. (Photo by STEFANI REYNOLDS/AFP via Getty Images)

When COVID hit, Congress passed legislation allowing for "continuous enrollment" of millions of people into Medicaid, the national health coverage program for low-income people. The goal was to ensure children and families remained covered during the pandemic.

Continuous enrollment ended last month, and states are expected to use the next 12 months to remove millions of people and return to the process of enrolling only those people who are eligible for the program. HHS has said this process could see up to 15 million people lose their Medicaid coverage, including millions of minorities.

"Nearly one-third of those estimated to lose coverage are Latino (4.6 million) and 15 percent (2.2 million) are Black," Rainer wrote in her letter to states. "Given that there are higher rates of disability and LEP in certain communities of color and among low-income persons, it is imperative that states carefully consider their obligations toward these vulnerable communities."

To avoid federal civil rights violations as people are removed from the program, Rainer called on states to take several steps aimed at ensuring "effective communication" so that "people of color and individuals with LEP or disabilities are not disenrolled because of ineffective communications."

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COVID prompted the federal government to allow for expanded Medicaid access, but that access is winding down. (Photo by Anna Moneymaker/Getty Images)

For example, the letter called on states to staff call centers in addition to internet help centers to guide people through Medicaid eligibility questions, since "persons of color are less likely to have broadband or internet access."

HHS said states should also make sure they have updated contact information for these vulnerable populations, so they have a chance to make the case for eligibility. "Families of color are more likely to be unhoused, experience housing insecurity, or have changed addresses during the pandemic," the letter explained.

Other steps states should take is to provide materials in Braille and other formats for people with disabilities, offer these same materials in the top 15 non-English languages, and to explain the process as simply as they can.

"Avoid using complex language on essential forms or notices, so that persons with low literacy skills, who are disproportionately represented in protected classes of persons, or who have cognitive disabilities are not left without this important information," the letter said.

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Secretary Xavier Becerra's HHS is also inviting people to file civil rights complaints if they believe their rights were violated as the COVID emergency unwinds. (Photographer: Amanda Andrade-Rhoades/Bloomberg via Getty Images)

HHS said the letter makes it clear to states that even as the COVID "unwinding" period takes place, states should take these extra steps to ensure they are communicating with all possible eligible people, without regard to race, color, national origin or disability.

HHS also made it clear it will be watching to see how states implement these guidelines, by encouraging people to report civil rights violations as the process unfolds.

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"If you believe that you have been discriminated against in programs or activities that HHS directly operates or to which HHS provides federal financial assistance, you may file a complaint for yourself or someone else…" HHS said.