Sunday | July 05, 2015
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GOP governors request leeway on Medicaid expansion

WASHINGTON — Republican governors are ratcheting up pressure on President Barack Obama to scale back a key provision of his health care law.

In a letter to Obama last week, 11 governors asked for a meeting “as soon as possible” to negotiate for greater control over their Medicaid programs.

Among other things, the governors want the option of expanding Medicaid — the state-federal program for the poor and disabled — in a much more modest way than envisioned in the law.

“To make any health care reform truly successful, (the administration) should let states do what they do best — innovate and tailor solutions to the needs of their citizens,” the governors wrote. The letter was signed by Jan Brewer of Arizona, Bobby Jindal of Louisiana, Rick Scott of Florida, Robert McDonnell of Virginia and the governors of Iowa, Maine, Mississippi, Ohio, South Dakota, Utah and Wyoming.

The law calls for opening the program to people with incomes up to 138 percent of the federal poverty level, or about $31,810 for a family of four. That’s more generous than what many states offer. It would result in about 18 million Americans being newly enrolled, according to recent estimates by the Kaiser Family Foundation and the Urban Institute.

In June, the Supreme Court ruled that the federal government cannot penalize states for refusing to go along with the full Medicaid expansion called for in the law as of 2014.

Since then, state officials have floated the idea of partly expanding Medicaid. But legal scholars sharply disagree over whether Obama administration officials have the legal power to authorize partial expansions.

Obama officials have declined to say whether partial expansions could be an option or when they will make that determination.

Charles Miller, a senior attorney at the law firm Covington & Burling, is advising more than 25 state governments on the issue. He said states are stuck in limbo.

“I don’t see how governors can plan and get legislative authority to do what they want to do without knowing what these ground rules are,” Miller said. “You’re talking about a major program here. Medicaid accounts for 20 to 25 percent of a lot of state budgets.”

Under the law, the federal government would pay the full amount of covering the newly eligible recipients for three years. The federal match would phase down to 90 percent by 2020. But that’s still much higher than the regular federal match rate for Medicaid, which varies from 50 to 78 percent.

The governors pushing for a more modest approach want to get the enhanced federal match for a partial expansion — covering people with incomes of up to, say, only 100 percent of the poverty line.

Many of those people without Medicaid coverage could still get insurance by using federal subsidies to buy insurance from private plans. But those plans would probably be less generous than Medicaid and could cost the federal government more.

Miller said there’s a strong case to be made that the Supreme Court at least opened the door to partial expansion.

“The court said … we’re not allowing you to enforce this so-called mandate,” Miller said. “So what is a mandate when you can’t enforce it? I think it’s not un-sensible to say that a mandate then becomes an option. And in that context does it have to be all-or-nothing? Neither the Supreme Court nor the original statute addressed that point.”

Sara Rosenbaum, a professor of health law and policy at George Washington University, disagreed.

She argued that in approving the expansion, Congress made clear it was designating a new mandatory-coverage group under Medicaid. And just as with the program’s other mandatory coverage groups — poor children, for instance — Congress intended for this one to be covered in its entirety, not in part.

The Supreme Court decision does not change that, Rosenbaum said, because in his majority opinion, Chief Justice John G. Roberts Jr. specified that the rest of the law was “unaffected” by the court’s decision.