By Stan Soloway, Ian Walton, and Taylor Keeney | RealClear Policy
At some point in the next three to six months, absent explicit action from the Biden Administration or Congress, it is anticipated that the official “Public Health Emergency (PHE)” tied to the pandemic will be lifted. At that time, a number of special authorities and flexibilities afforded an array of public benefits programs will, logically, also be lifted.
However, the end of the PHE does not mean the end of the challenges for families brought on by the pandemic. And the precipitous elimination of some of those authorities could place tens of millions of Americans at risk now and well into the future.
Indeed, doing so is tantamount to ignoring some of the most important lessons of the last two years as well as the realities of today.
The confluence of facts is not complicated: During the pandemic, the massive surge in the need for benefits assistance required state and local governments to capitalize on a range of flexibilities granted by the federal government. In the end, more than forty states, led by governors of both parties, took advantage of the hiring flexibilities authorized for unemployment insurance, nutrition, and health care assistance.
Without those flexibilities, there can be little doubt that millions of people would have fallen through one of the many holes in the safety net that were exposed by the pandemic.
Moreover, the end of the PHE does not signal the end of the caseload surge or the continued need for flexibility. In fact, some state officials have estimated that given staffing shortages, the continued, massive case backlogs will take years, even decades, to erase. This challenge and potentially soon-to-be-crisis rang clear at a recent meeting of the National Association of State Budget Officers. There, one common theme that resonated across officials from both parties centered on their workforce; that is, their continued shortage of staff and the challenges they have in hiring.
Local, state, and federal agencies have struggled for years to attract adequate talent in a labor market where unemployment is historically low and the competition for people is fierce. Some economic reports estimate that there are at least two jobs available across the economy for every individual seeking employment. In governments, the situation is often worse. As the Pew Center recently reported, the pay gap between public and private sector employees is greater today than ever and is being further exacerbated by rising inflation. In Connecticut, one in every six state government positions is vacant; in Denver, there are only a few dozen people available to handle the city’s entire benefits caseload. And the list goes on.
Which is why we question proposed Department of Labor policies that will sharply constrain the use of outside contractors to assist states in their administration of employment services programs. The Department is proposing to pull back on existing regulatory flexibilities in employment services for the long-term unemployed (itself a growing issue in the economy). Given the workforce challenges, and the success of the hiring flexibilities for unemployment insurance utilized in forty-one states and the District of Columbia, why would we now want to tie the hands of the states? Indeed, state workforce directors have unanimously called on the administration to extend the staffing flexibility for at least 12 months.
The same is true for the recent decision by the Centers for Medicaid and Medicare Services (CMS) to start enforcing an Obama-era regulation that prohibited the use of other than government employees in a range of areas associated with eligibility for Obamacare assistance. These restrictions were not required by the statute itself but were, instead, added later in the rule-making process. But, again, due to realities on the ground, they have never been enforced. For no particular reason, CMS has decided to change that now. This will require states such as Pennsylvania and Delaware to eliminate their use of any outside assistance from contractors that have long supported the “fair hearings” process – a critical part of the eligibility redetermination process that allows a beneficiary to challenge a state decision to remove them from Medicaid. Worse, this comes just as the end of the PHE means that states will soon have to embark on the extraordinary challenge of redetermination for some 85 million Medicaid patients, which has been on hold during the pandemic. Talk about a surge…and a risk to beneficiaries.
Moreover, while some argue that allowing non-government employees to perform some of those tasks is necessary because the tasks are what is known as “inherently governmental,” the decisions being made are not subjective; they are based on a clear and immutable set of criteria established by the agency and government representatives at the state (and sometimes county) level. The workers performing them have no discretion other than to follow the rules set by the agency.
Concerns have also been raised that some contracts under which this work has been done contain the wrong kinds of incentives or performance measures; that they could reward the wrong outcomes (i.e., reducing numbers of beneficiaries). These types of contracts are plainly inappropriate and should not be utilized. Good contracts have much more appropriate performance measures attached that are focused on ensuring beneficiaries receive timely, efficient and effective support and service. Expanding the use of contracts that set out metrics for such things of timeliness of cases handled, beneficiary satisfaction with the support, and other components of the “citizen experience” would be a win-win for all.
Employment services and Medicaid are just two of the critical programs on which constraints on flexibility have been or are likely to soon be imposed. For example, SNAP (formerly known as Food Stamps) in some states faced massive pandemic surges, but USDA did not allow state and local governments any of the administrative staffing flexibility afforded to programs like UI. As more than a dozen large food banks said at the time, this resulted in children and families experiencing food access challenges that could have — and should have — been avoided.
Finally, it is sometimes claimed that utilizing non-government employees for this or other work is tantamount to eliminating unions. But in fact, the quest for innovation and efficiencies is and should only be about better serving the citizen and remain agnostic on the question of union involvement.
When crises occur, our focus is, necessarily, on immediately addressing the wide array of problems they create. In those times of obvious need, governments have to find alternative pathways and be given latitude to ensure that needed services are interrupted as little as possible.
But when the crisis abates, the tendency is to simply fall back on traditional thinking and execution. It shouldn’t be that way, especially when many of the structural weaknesses exposed during the emergency continue to threaten efficient and effective service delivery.
This is an opportunity to evaluate lessons learned and, where proven effective, make them a part of day-to-day operations. We don’t have to return to the status quo. Eliminating the very flexibilities that will enable state and local governments to meet citizen needs in a timely and efficient manner, particularly as they continue to face challenges driven by the PHE, simply doesn’t make sense — especially for an administration that has placed citizen service at the center of its agenda.