Wednesday, April 10, 2019

Trump administration appeals rulings that blocked Medicaid work rules in Ky. and Ark.; decision not likely until after Nov. 5 election

As expected, the Trump administration has appealed a decisions by a federal judge in Washington, D.C., that stopped Kentucky and Arkansas from requiring some people on Medicaid to work.

The Centers for Medicare and Medicaid Services appealed April 10 to the U.S. Court of Appeals for the District of Columbia Circuit, "which often has the final say on the legality of controversial regulatory policies," reports James Romoser of Inside Health Policy. Gov. Matt Bevin has said the issue will be decided by the U.S. Supreme Court, which could refuse to hear a further appeal.

U.S. District Judge James Boasberg
District Judge James Boasberg "ruled that CMS failed to show how the waivers would promote Medicaid’s central purpose of providing people with medical coverage," Romoser notes. "Boasberg’s rulings sent the waivers back to CMS for further review, meaning CMS had the option to re-evaluate or modify the waivers in hopes of satisfying Boasberg’s concerns. But the agency indicated in court papers last week that, rather than take any further action on the waivers right now, it intended to bring the case to the D.C. Circuit and seek to have Boasberg’s rulings overturned."

Appeals in federal courts are randomly assigned to three-judge panels. "It is not clear whether a single panel will oversee both the Arkansas and Kentucky cases," Romoser writes. "Among the D.C. Circuit’s 11 full-time judges, seven were appointed by Democratic presidents and four were appointed by Republican presidents. The court also has six senior judges, who handle a reduced caseload. Five of them are Republican appointees and one is a Democratic appointee."

The cases are likely to spend several months at the D.C. Circuit, probably beyond the Nov. 5 election, in which Bevin is highly likely to be the Republican nominee for another four-year term. Kentucky officials have intervened in the case and have said they will participate in the appeal. The Kentucky case is Stewart v. Azar, No. 1:18-cv-152.

The Trump administration is "expected to argue that Boasberg, an Obama appointee, failed to provide enough leeway to HHS Secretary Alex Azar to test new policies that he believes will serve Medicaid’s goals," Romoser writes.

UPDATE: In a statement, state Health Secretary Adam Meier voiced confidence that Boasberg would be found wrong, and that his worst mistake was his "unprecedented conclusion that Medicaid does not care about improving people’s health." That was a reference to the following passage in Boasberg's ruling (emphasis added):

"Rather than adequately addressing Kentucky HEALTH’s potential to cause loss of medical coverage, the Secretary continues to press his contention that the program promotes his alternative proposed objectives of beneficiary health, financial independence, and the fiscal sustainability of Medicaid. The Court finds that the first two of those three goals are not objectives of the [Medicaid] Act in their own right, and, regardless, the Secretary’s failure once again to adequately consider the effects of Kentucky HEALTH on coverage is alone — as it was in [the initial case] — fatal to the approval."

The state and federal governments argued that the objectives of Medicaid for the 450,000 people in the expansion differed from those of traditional Medicaid, and that the new plan would improve their health. Boasberg rejected that argument both times. In the latest ruling, he wrote, “The Secretary’s primary contention is that health must be an independent objective because there is little value in paying for health care if it is not advancing that goal. As the Court explained in its prior opinion, health was not necessarily the ultimate aim Congress pursued when it decided to 'provide health insurance to needy populations.' . . . Congress thus designed a scheme to address not health generally, but the provision of care to needy populations. The Secretary is not free instead to extrapolate the objectives of the statute to a higher level of generality and pursue that aim in the way he prefers.”

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