Health-law expert says Bevin's idea to cap Medicaid enrollment or use a lower income limit than 138% of poverty 'is a nonstarter'

In his successful campaign for governor, Republican Matt Bevin said he would not continue to enroll in the Medicaid program people with incomes at 138 percent of the federal poverty level, the limit for the Medicaid expansion that Gov. Steve Beshear ordered under the federal health-reform law. But he will have to keep doing that in order to get the federal waiver he needs to reshape the program, health-law expert Sara Rosenbsum predicts in an online article for the Milbank Quarterly, a public-health journal.

Bevin has been "hinting that he might support retention of Medicaid for current beneficiaries while capping or eliminating coverage for those who might qualify for coverage in the future, Rosenbaum writes. "Medicaid is a legal entitlement, however. This means that people who are eligible for coverage must be allowed to enroll when they successfully apply. And because Medicaid is a safety-net program, people who believe that they may qualify for assistance must be allowed to apply for it when the need arises, unconstrained by formal open enrollment periods or special enrollment rules. As a result, despite the states’ broad discretion to shape their Medicaid programs to meet their residents’ needs, Gov. Bevin, acting on his own, cannot simply cap enrollment.''

Sara Rosenbaum, Ph.D.

Rosenbaum notes that in its 2012 decision upholding almost all of the Patient Protection and Affordable Care Act, the U.S. Supreme Court "emphasized that the secretary of health and human services retains full power to enforce the terms of the Medicaid expansion even if it is, effectively, optional. Moreover, HHS has made clear that the expansion under the ACA retains Medicaid’s full entitlement criteria, thereby barring states from imposing artificial limits on coverage."

None of the seven states operating Medicaid programs under a federal waiver (Arkansas, Montana, Iowa, Michigan, New Hampshire, Indiana and Pennsylvania) "uses enrollment caps. Simply put, capping enrollment is a nonstarter," Rosenbaum writes. (Bevin and state Senate President Robert Stivers have said they are looking to Indiana's program as a possible model for Kentucky.)

Also, "No other Republican governor elected in an expansion state with expanded Medicaid coverage has chosen to eliminate benefits; indeed, nearly a dozen Republican governors have embraced the expansion," Rosenbaum notes. "One reason may be that, as the Kaiser Family Foundation reports, more than half of Republican voters in non-expansion states favor expansion."

In seeking a waiver, the Bevin administration will start "an intricate, closely watched dance between Kentucky and the Obama administration," Rosenbaum writes. How will it play out? "No one should bet on life and health," she cautions. "But if one were to do so, the odds are that HHS will stand firm, Gov. Bevin will blink, and Medicaid coverage in Kentucky will prevail. To bet otherwise would be politically inadvisable and, more important, morally unacceptable."

Rosenbaum is the Harold and Jane Hirsh Professor of Health Law and Policy in the Milken Institute School of Public Health at George Washington University in Washington, D.C.