September 5, 2012

Maine sues feds over LePage's proposed Medicaid cuts

The governor would like to remove 24,000 low-income parents, some elderly people and 19- and 20-year-olds from the program to balance the budget.

By Steve Mistler smistler@pressherald.com
Staff Writer

AUGUSTA — Maine's standoff with the federal government over an estimated $20 million in Medicaid cuts has escalated to a court battle.

Attorney General William Schneider said Tuesday that his office has petitioned the U.S. 1st Circuit Court of Appeals to force the federal government to approve Maine's application to eliminate health care benefits for about 33,000 people, or begin paying Maine's share of the coverage.

The petition follows last week's announcement that the U.S. Department of Health and Human Services' Centers for Medicare and Medicaid Services would not expedite its decision on the state's application. The LePage administration asked the agency in August to rule on the application by Sept. 1.

Federal law allows 90 days to ratify or deny changes to a state's Medicaid plan. The LePage administration says an expedited decision is necessary because Maine has balanced its budget based on the $20 million in anticipated savings from the health care cuts.

The administration submitted its application Aug. 2.

Schneider said in a written statement that the Centers for Medicare and Medicaid Services' failure to immediately ratify the state's plan amendment was "in effect a denial" of Maine's application.

He said Maine had explained that it preferred not to resort to the courts, but would "suffer irreparable injury absent CMS's expeditious review of the (plan) or CMS's commitment to pay Maine for its costs."

He wrote, "Given the response from CMS, Maine has no choice but to present this matter to the United States Court of Appeals for the First Circuit."

In a letter released last week, the Centers for Medicare and Medicaid Services told LePage that the government needs more time to decide whether to approve changes that Maine has proposed. A CMS spokesperson said Tuesday that the agency can't comment on pending litigation and referred to the letter.

The cuts to MaineCare, the state's version of Medicaid, are scheduled to take effect Oct. 1. The reductions, passed this spring by the Republican majority in the Legislature, would eliminate health care benefits for an estimated 24,000 low-income parents, nearly 7,000 19- and 20-year-olds, and 1,800 Medicare recipients who receive additional benefits under MaineCare.

"I appreciate that your budget is predicated on the savings anticipated from ending the Medicaid coverage of the groups of individuals at issue in the proposed (plan), but your request raises issues that require careful consideration," wrote Marilyn Tavenner, acting commissioner of the Centers for Medicare and Medicaid Services, in last week's letter to the state.

Tavenner wrote that federal regulations allow 90 days, which would give Maine its response at the end of October. "I want to assure you that we will review your plan amendment carefully and render a decision promptly," she wrote.

Rep. Emily Cain, D-Orono, Maine's House minority leader, said Tuesday that the lawsuit is "pure politics," designed to distract Mainers from the fact that LePage and other Republicans want to eliminate health care coverage for low-income Mainers.

The state has been moving forward with plans to make the changes as of Oct. 1. It published legal ads in the Portland Press Herald in early August giving formal notice of the changes.

Policy experts differ on whether the changes require a waiver from federal health care law. The federal DHHS has never granted a waiver to any state.

Schneider and the LePage administration say the U.S. Supreme Court's ruling in June on the Affordable Care Act eliminates the waiver provision, giving states more flexibility to make changes to their Medicaid programs.

A recent opinion from the Congressional Research Service, which works as a think tank for Congress, concluded that the Supreme Court's decision did not change the waiver requirement.

Thomas Barker, a former general counsel in the federal DHHS and the Center for Medicare and Medicaid Services under President George W. Bush, took the opposite position in a recent interview with the Portland Press Herald.

"I do think (Maine officials) have a strong argument, but I don't believe that HHS is going to back down," said Barker. "The state may end up having to sue HHS."

LePage has defended the cuts as necessary to restore fiscal solvency in the state Department of Health and Human Services.

Staff Writer Steve Mistler can be contacted at 791-6345 or at: smistler@pressherald.com

Twitter: stevemistler

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