April 23, 1999

TO THE MISSISSIPPI STATE SENATE:

GOVERNOR'S VETO MESSAGE FOR SENATE BILL 2143

I am returning Senate Bill 2143, "AN ACT RELATING TO MEDICAID ASSISTANCE; TO AMEND SECTIONS 43-13-103 AND 43-13-105, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE DIVISION OF MEDICAID TO EXPEND FUNDS UNDER TITLE XXI OF THE FEDERAL SOCIAL SECURITY ACT; TO AMEND SECTION 43-13-107, MISSISSIPPI CODE OF 1972, TO CREATE A MEDICAL CARE ADVISORY COMMITTEE TO THE DIVISION OF MEDICAID; TO AMEND SECTION 43-13-111, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT EACH STATE AGENCY SHALL REQUEST AND OBTAIN AN APPROPRIATION FOR ALL MEDICAID PROGRAMS ADMINISTERED BY SUCH AGENCY; TO AMEND SECTION 43-13-113, MISSISSIPPI CODE OF 1972, TO REQUIRE THE DIVISION OF MEDICAID AND ITS FISCAL AGENT TO IMPLEMENT A CONTINGENCY REIMBURSEMENT AND ELIGIBILITY VERIFICATION PLAN IN THE EVENT OF A YEAR 2000 PROBLEM; TO AMEND SECTION 43-13-115, MISSISSIPPI CODE OF 1972, AS AMENDED BY HOUSE BILL NO. 403, 1999 REGULAR SESSION, TO DEFINE THOSE INDIVIDUALS ELIGIBLE FOR MEDICAID ASSISTANCE; TO AMEND SECTION 43-13-116, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR LOCAL AND STATE HEARING REQUESTS BY CLAIMANTS; TO AMEND SECTION 43-13-117, MISSISSIPPI CODE OF 1972, AS AMENDED BY HOUSE BILL NO. 57, 1999 REGULAR SESSION, AND HOUSE BILL NO. 403, 1999 REGULAR SESSION, TO DELETE THE REQUIREMENT FOR DIVISION OF MEDICAID APPROVAL FOR REIMBURSEMENT FOR MORE THAN 15 DAYS OF INPATIENT HOSPITAL CARE, TO AUTHORIZE HOSPITAL REIMBURSEMENT FOR IMPLANTABLE PROGRAMMABLE PUMPS IN AN INPATIENT SETTING, TO DIRECT THE DIVISION TO DEVELOP A COST-TO-CHARGE RATIO CALCULATION FOR OUTPATIENT HOSPITAL SERVICES AND REPORT TO THE MEDICAL ADVISORY COMMITTEE FOR RECOMMENDATIONS TO THE 2000 REGULAR SESSION, TO DELETE THE REPEALER ON THE CASE-MIX REIMBURSEMENT SYSTEM FOR NURSING FACILITY SERVICES, TO AUTHORIZE THE DIVISION TO REDUCE THE PAYMENT FOR HOSPITAL LEAVE AND HOME LEAVE FOR A NURSING FACILITY RESIDENT USING CERTAIN CASE-MIX CRITERIA AND TO AUTHORIZE THE DIVISION TO LIMIT CERTAIN MANAGEMENT FEES AND HOME OFFICE COSTS FOR NURSING FACILITIES, ICFMR'S AND PSYCHIATRIC RESIDENTIAL TREATMENT FACILITIES, TO DELETE CERTAIN REQUIREMENTS FOR REIMBURSEMENT TO NURSING FACILITIES FOR RETURN ON EQUITY CAPITAL, TO DELETE THE PROVISION ESTABLISHING AND EMPOWERING THE MEDICAID REVIEW BOARD FOR NURSING FACILITIES, TO AUTHORIZE A CASE-MIX REIMBURSEMENT ADD-ON AND DEPRECIATION REIMBURSEMENT FOR RESIDENTS OF NURSING FACILITIES WITH ALZHEIMER'S OR RELATED DEMENTIA, TO DIRECT THE DIVISION OF MEDICAID TO DEVELOP AND IMPLEMENT A REFERRAL PROCESS FOR LONG-TERM CARE ALTERNATIVES FOR MEDICAID BENEFICIARIES AND APPLICANTS; TO PROVIDE THAT NO MEDICAID BENEFICIARY SHALL BE ADMITTED TO A MEDICAID-CERTIFIED NURSING FACILITY UNLESS A LICENSED PHYSICIAN CERTIFIES ON A STANDARDIZED FORM THAT NURSING FACILITY CARE IS APPROPRIATE FOR THAT PERSON; TO PROVIDE THAT THE PHYSICIAN MUST FORWARD A COPY OF HIS CERTIFICATION TO THE DIVISION OF MEDICAID WITHIN 24 HOURS; TO REQUIRE THE DIVISION TO DETERMINE, THROUGH AN ASSESSMENT OF THE APPLICANT CONDUCTED WITHIN TWO BUSINESS DAYS AFTER RECEIPT OF THE PHYSICIAN'S CERTIFICATION, WHETHER THE APPLICANT ALSO COULD LIVE APPROPRIATELY AND COST-EFFECTIVELY AT HOME OR IN SOME OTHER COMMUNITY-BASED SETTING IF HOME- OR COMMUNITY-BASED SERVICES WERE AVAILABLE TO THE APPLICANT; TO PROVIDE THAT IF THE DIVISION DETERMINES THAT A HOME- OR OTHER COMMUNITY-BASED SETTING IS APPROPRIATE AND COST-EFFECTIVE, IT SHALL ADVISE THE APPLICANT THAT A HOME- OR OTHER COMMUNITY-BASED SETTING IS APPROPRIATE AND PROVIDE A PROPOSED CARE PLAN FOR THE APPLICANT; TO PROVIDE THAT THE DIVISION MAY PROVIDE THE SERVICES FOR THE APPLICANT DIRECTLY OR THROUGH CONTRACT WITH CASE MANAGERS FROM THE LOCAL AREA AGENCIES ON AGING; TO DELETE THE REQUIREMENT THAT THE DIVISION OF MEDICAID PROVIDE HOME- AND COMMUNITY-BASED SERVICES UNDER A COOPERATIVE AGREEMENT WITH THE DEPARTMENT OF HUMAN SERVICES, TO INCREASE THE PHYSICIAN'S FEE AND DENTIST'S FEE REIMBURSEMENT UNDER MEDICAID, TO INCREASE THE NUMBER OF MEDICAID PRESCRIPTIONS UNDER CERTAIN CIRCUMSTANCES, TO AUTHORIZE THE DIVISION TO REQUIRE HOME HEALTH SERVICES PROVIDERS TO OBTAIN A SURETY BOND, TO AUTHORIZE THE DIVISION TO REQUIRE DURABLE MEDICAL EQUIPMENT PROVIDERS TO OBTAIN A SURETY BOND AND TO DELETE THE LIMITATION ON DURABLE MEDICAL EQUIPMENT REIMBURSEMENT, TO PROHIBIT THE EXPANSION OF THE CAPITATED MANAGED CARE PROGRAM INTO ANY COUNTY OTHER THAN CERTAIN SPECIFIED COUNTIES, TO GUARANTEE MEDICAID ELIGIBILITY FOR RECIPIENTS WHO ENROLL IN THE CAPITATED MANAGED CARE PROGRAM FOR NOT LESS THAN SIX MONTHS, TO AUTHORIZE MEDICAID REIMBURSEMENT FOR ONE PAIR OF EYEGLASSES EVERY THREE YEARS, TO DELETE THE AUTHORITY FOR THE PERSONAL CARE SERVICES PILOT PROGRAM, TO DIRECT THE DIVISION TO APPLY FOR A FEDERAL WAIVER TO DEVELOP A PROGRAM OF SERVICES TO PERSONAL CARE AND ASSISTED LIVING HOMES, TO DELETE THE REPEALER ON THE PROVISION FOR CHIROPRACTIC SERVICES REIMBURSEMENT, TO CHANGE THE DATE FOR CHANGES IN REIMBURSEMENT RATES REQUIRING LEGISLATIVE APPROVAL, TO DIRECT THE DIVISION TO PAY THE MEDICARE DEDUCTIBLE AND 10% COINSURANCE FOR QUALIFIED MEDICAID BENEFICIARIES, AND TO PROVIDE FOR MEDICAID REIMBURSEMENT FOR SERVICES PROVIDED BY THE DEPARTMENT OF REHABILITATION SERVICES TO PERSONS WITH SPINAL CORD OR TRAUMATIC BRAIN INJURIES, AS ALLOWED UNDER FEDERAL WAIVERS; TO AMEND SECTION 43-13-121, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR ACCESS TO PROVIDER RECORDS FOR DIVISION STAFF AND TO DISQUALIFY CERTAIN PROVIDERS FOR REIMBURSEMENT; TO AMEND SECTION 43-13-122, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO AMEND SECTION 43-13-125, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THE DIVISION OF MEDICAID'S SUBROGATION RIGHTS ARE TO THE EXTENT OF BENEFITS PROVIDED BY MEDICAID ON BEHALF OF THE RECIPIENT TO WHOM THIRD PARTY PAYMENTS ARE PAYABLE; TO AMEND SECTION 43-13-137, MISSISSIPPI CODE OF 1972, TO DIRECT THE DIVISION OF MEDICAID TO COMPLY WITH THE ADMINISTRATIVE PROCEDURES LAW; TO AMEND SECTION 43-13-305, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE DIVISION OF MEDICAID TO ENDORSE MULTI-PAYEE CHECKS; TO AMEND SECTION 43-27-107, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE DEPARTMENT OF HUMAN SERVICES TO CLASSIFY CERTAIN NEWLY CREATED SOCIAL WORKER POSITIONS AS TIME-LIMITED EMPLOYEES; AND FOR RELATED PURPOSES," without my approval and respectfully present the following reasons for my veto:

I must note at the start that much of what is contained in this technical amendments bill has already become law. Provisions allowing for the extension of Medicaid coverage for disabled workers, increasing the number of leave days to allow nursing home patients to spend more time at home with their families, additional reimbursement to nursing facilities for Alzheimer's patients, the payment of Medicare deductibles and copayments, increased monthly prescription limits, extension of Case Mix authority, and expansion of home and community based services became law this session under my signature. Physicians and Dentists have also already seen their reimbursement rates raised. This bill is not needed for any of those things.

Section 3 contains a provision that is likely unconstitutional and at the least, bad public policy. It provides for the creation of a Medical Care Advisory Committee comprised of legislators and health care professionals chaired by the Chairs of the House and Senate Public Health and Welfare Committees on a rotating basis. Medicaid is clearly an executive branch function. Administration of the Medicaid program by the legislature would be a violation of the principle of separation of powers and possibly, a violation of federal law. It may be called an "Advisory" committee in this legislation but it clearly is intended to be much more. The responsibilities of this new committee even include approval of payments for a new Medicaid mandate created in the bill: "programmable implantable pumps".

The Medicaid program is one of the few remaining clear examples of gubernatorial authority. It was created that way by Congress and has remained that way under the Mississippi Constitution. To attempt to run it through a committee composed of service providers (Medicaid payment recipients) and legislators is both unwise and a further weakening of the authority of the Mississippi Governor's Office.

The provision of payments for programmable infusion pumps is a startling example of micro management by the legislature. The benefits would inure to a sole source distributor without the safeguard of competition to control price. It is no justification to tell legislators that patients are being denied this service because of the current methodology, but rather it is a shocking admission of non-compliance with medical ethics and federal laws and regulations. Hospitals are already reimbursed on a cost basis and are made whole for their purchases of durable medical equipment.

The expansion of Medicaid eligibility contained in the bill for poverty level aged and disabled persons will not become law as a result of my veto. However, when you consider the expansions of the Medicaid program that have become law with my signature on bills and State Plan amendments the last few years, I can honestly say that much has been done. I have asked the Division of Medicaid in the Office of the Governor to explore ways through amendments to our State Medicaid Plan to expand service to the disabled and aged in a responsible manner. We will continue to find ways to meet the aims of the program while still maintaining accountability to the taxpayers. Let us keep in mind that Medicaid is still the second largest single component of the total Mississippi budget.

Respectfully submitted,

KIRK FORDICE
GOVERNOR