State health officials request dismissal of lawsuit holding up Medicaid expansion – Winston-Salem Journal

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State health officials have asked a federal judge to dismiss a lawsuit, filed by legislative leaders, that targets Democratic Gov. Roy Cooper’s request to expand North Carolina’s Medicaid program.

The response, filed Wednesday on behalf of state Health Sec. Mandy Cohen, is the latest legal step involving the Jan. 13 lawsuit filed by Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland.

On April 7, an assistant U.S. attorney general filed for dismissal of Berger and Moore’s lawsuit.

Expansion supporters, as well as several academic studies, have determined that expanding Medicaid could benefit more than 500,000 North Carolinians — potentially raising total Medicaid recipients to 2.4 million. The goal would be having Medicaid expansion in effect by Jan. 1.

The Republican legislative leaders sued both the federal and state departments of health and human services. At that time, the federal DHHS was under the Obama administration.

Berger and Moore claim Cooper is trying to defy a 2013 state law that governs Medicaid expansion. The law prohibits the executive branch from making any expansion attempt without the General Assembly’s approval. The law, signed by former Republican Pat McCrory, is being challenged by Cooper.

The lawsuit is an attempt to prevent Cooper from submitting an amendment request to the federal Centers for Medicare and Medicaid Services that would affect a state Medicaid waiver request submitted June 1 by the McCrory administration.

When Berger and Moore filed their lawsuit, they referred to the state Medicaid program as a “welfare entitlement program” and Cooper’s request as “an expansion ploy.”

On Jan. 27, a 60-day block on Cooper’s request was approved. A federal judge extended the response time to mid-April.

In the federal DHHS response filed April 7, the motion by Chad Readler argues that “a federal court cannot enjoin an executive agency from considering an unsubmitted proposal on the grounds that the agency would be required to reject the proposal if it were ever submitted.

“Yet, that is precisely what plaintiffs have asked this court to do. There are many deficiencies in plaintiffs’ case, but that is the fundamental flaw.

“Rather than allowing the Secretary of Health and Human Services to evaluate a proposed Medicaid state plan amendment once it is submitted, plaintiffs would have this court preemptively declare its view,” Readler said. “Plaintiffs lack standing to bring this premature case … and their complaint (must be) dismissed for lack of standing and failure to state a claim on which relief can be granted.”

The state DHHS officials’ motion piggybacks significantly on the federal DHHS response, saying “the General Assembly has not authorized them to bring suits challenging federal action, and any injuries they purportedly suffer as individual legislators are not cognizable.”

Both defendants said the lawmakers lack standing because they are not facing “actual or imminent” harm from Cooper’s motion.

State defendants argued that the lawmakers’ claims “rest upon a bizarre notion of ‘state sovereignty,’ namely that the secretary of DHHS is … required to take (their) side in their dispute with the governor over the state authority, because they are right and he is wrong.”

Finally, the defendants argue that “the acceptance of a state plan amendment submitted by the designated state Medicaid agency simply does not threaten to upend republic governance in the state of N.C.”

State DHHS officials cited the introduction of House Bill 662 on April 6 as evidence that Berger and Moore don’t speak for the entire legislature.

Rep. Donny Lambeth, author of the 2016 Republican legislative initiative on Medicaid reform, is one of four Republican primary sponsors.

HB662 requires “participant contributions,” defined as working “more like an insurance product for those working who can pay a portion of the cost, and the benefits and coverage are built around preventive and wellness care.”

For example, participants must follow protocols for routine physicals and screenings to improve their health if they have conditions such as diabetes, overweight, etc.”

Participant contribution would consist of an annual premium, billed monthly, representing 2 percent of their household income. That element appears to be based on the Healthy Indiana Medicaid expansion plan established by former Gov. Mike Pence, now vice president of the U.S.

Participants must be employed or pursuing a job to qualify, a component that may draw criticism from some expansion supporters.

The dismissal request comes when the Trump administration and the Republican-controlled U.S. House failed — at least for now — to advance an Affordable Care Act repeal initiative.

Since that repeal bill was withdrawn, the Republican-controlled Kansas legislature voted to approve expanding its Medicaid program, only to fail to override Republican Gov. Sam Brownback’s veto.

McCrory’s waiver request focused on creating a hybrid oversight solution involving for-profit insurers and not-for-profit health-care systems. It didn’t include an expansion of Medicaid in the state.

The N.C. Medical Society and N.C. Hospital Association have signaled their support for Cooper’s proposal that would include not-for-profit health-care systems helping to pay the state’s 5-percent match of Medicaid expansion administrative costs for 2017, 2018 and 2019.

The hospital association said it is studying HB662.