HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Thursday, July 12, 2012

Some Old-Fashioned Letter Writing on a New Morass

The Court's fractured decision on Medicaid continues to generate confusion and discussion.  And why wouldn't it?  To recap, a total of seven justices voted that the Medicaid expansion was unconstitutionally coercive because HHS has the power to withdraw all Medicaid funds for non-compliance with the Medicaid expansion, but they were fractured into a three vote plurality and the joint dissent (which pointedly did not join the plurality).  Two justices would have upheld the Medicaid expansion but voted with the plurality to make five justices voting to sever the penalty for state failure to comply with the expansion.  And, the four dissenting justices would not have severed the penalty but instead would have struck down the whole law. 

Today, what's more interesting is the flurry of letters on the Medicaid issue.  The National Governors' Association meets this week in Williamsburg (starting today, actually), where the Medicaid expansion is guaranteed to be a hot topic.  In anticipation of the meeting, the NGA sent a letter to HHS asking, in so many words, exactly how much wiggle room the decision in NFIB v. Sebelius gives governors. 

Also this week, the National Association of Medicaid Directors' letter asked a more technical and better set of questions that hones in on the open questions resulting from separating the remedy for non-compliance from the Medicaid expansion. 

Thus far, Secretary Sebelius has sent a general letter that encourages states to implement ACA, including the Medicaid expansion, but specifics have not been forthcoming.  Undoubtedly, HHS will need time to answer the many questions that now confront CMS on the Medicaid expansion, as the Court's King Solomon decision has left many unintended openings in the ACA implementation.

To continue the letter theme, Republican Governors have also sent a letter to Sebelius seeking absolute flexibility in implementing exchanges.  And, a small letter-writing war appears to have broken out between Governor LePage and Representative Pingree regarding Maine's maintenance of effort in Medicaid, which LePage says has been negated by NFIB and Pingree holds is untouched.  Stay tuned for more acrimony...

[NH]

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