Thursday, September 6, 2012
Of the actions to push the reach of the holding in NFIB that I mentioned last week, Maine's seems to be moving the most quickly. Maine submitted a request to amend its State Plan to the Department of Health and Human Services in August and demanded that HHS expedite the review to facilitate Maine's push to control its budget. HHS denied the request to expedite the review of the amendment (but not the substance of the amendment). On September 4th, Maine Attorney General William J. Schneider filed a petition to have the First Circuit review HHS's refusal to expedite as well as a motion for injunctive relief asking the First Circuit to order an approval of the State Plan Amendment (also seeking funding for money spent while waiting for approval of the Amendment). The heart of Maine's argument appears to be that HHS has "effectively denied" Maine's request, and that the proposal to amend Maine's State Plan flows naturally from the language of the Roberts plurality in NFIB.
Filling in the blanks: The Maintenance of Effort provision in the Medicaid amendments of the ACA requires states to preserve eligibility for current Medicaid enrollees until the insurance exchanges are established in 2014. Governor LePage has claimed that Maine is not bound by the MOE because, like the Medicaid expansion, states' Medicaid funding could be refused if a state violates the MOE provision. Like the Medicaid expansion, the MOE provision is on the radar of such well-funded organizations as the Cato Institute. Michael Cannon has been quoted (Download MOE challenge - BNA article) comparing the MOE to the Medicaid expansion because in both instances, the state could lose all of its Medicaid funding for refusal to comply with the new provision. Professors Jonathan Adler and Jim Blumstein (an architect of the new/old Medicaid analysis in NFIB) agree with Cannon.
Let's be clear about what's happening in Maine. Maine is intentionally pushing for a new decision on coercion and Medicaid, which is clear from the language of its brief to the First Circuit. NFIB does not give Maine permission to ignore the MOE requirement, as I've written here (with Weeks Leonard and Outterson). NFIB had no impact on the MOE provision. The plurality on Medicaid/coercion stated several times that the opinion was limited to the Medicaid expansion. The Court considered only whether states must participate in the expansion of Medicaid delineated in the ACA or if they should be able to 'opt out' without jeopardizing the existing funding they receive for pre-ACA Medicaid programs. In several places, both Roberts and Ginsburg emphasized that the Court's holding was limited to the Medicaid expansion, meaning the remedy of limiting the Secretary's application of 42 USC 1396c did not affect any other aspect of the Medicaid program. No provision of the ACA was struck down and no Medicaid Act provision was struck down; indeed, one could argue that the Medicaid expansion remains a mandate, but that it is unenforceable because the Secretary's administrative remedy for state noncompliance was limited. Thus, we say that effect of NFIB was to render the Medicaid expansion "optional". But, nothing else in the ACA or the Medicaid Act was touched.
Considering the long-standing Marks standard of finding the narrowest point of agreement to understand the precedential value of a plurality opinion, NFIB should not be read expansively. While the Court has clearly signaled an interest in hearing more coercion challenges, Maine is pushing the meaning of NFIB too far.