Constitutional Challenges to ACA Medicaid Reforms Would Be a Lot Stronger If They Had a Constitutional Principle To Support Them
At oral arguments over the health reform law last week, the Eleventh Circuit panel showed a surprising amount of interest in the other constitutional challenge to the Affordable Care Act (ACA)—the states’ claim that the ACA’s Medicaid provisions are unconstitutionally coercive, effectively commandeering state governments into doing the federal government’s bidding. Brad Joondeph reviews the arguments presented by former Solicitor General Paul Clement on behalf of the states.
First there’s an argument from “sheer volume”: the enormity of federal Medicaid funding unconstitutionally tips the balance of federalism in favor of the feds. The difficulty with this argument is that, if the sheer volume of Medicaid makes new conditions on federal spending unconstitutionally coercive, then every new amendment that has increased states’ program costs in the past several decades must also have been unconstitutional.
Then there’s an argument from the disproportionality of new conditions: a state’s noncompliance with the new conditions jeopardizes all its federal funds, not just funds newly dedicated in the ACA. Same problem as before. If new conditions on existing federal funding were unconstitutionally coercive, then you’d have to explain why the Supreme Court reached the exact opposite conclusion in South Dakota v. Dole.
And then there’s a third argument that Joondeph sums up like this:
[T]he ACA (a) imposes an individual mandate on all Americans to acquire health coverage, (b) applies that mandate to everyone, including Americans below the poverty line, but (c) provides no subsidy for those persons falling below the poverty level (though it does provide subsidies for those between 133% and 400% of poverty). Thus, the ACA on its face assumes that every state will comply with the Act’s Medicaid conditions, for this is the only way envisioned by the Act for indigent Americans to satisfy the mandate.
So Congress imposed the mandate assuming that the states will comply with new Medicaid conditions, and therefore . . . the ACA is coercive? Hmmm. Well, the first problem with this argument is that it is not an argument—it doesn’t connect premises to a conclusion. 
But even if we spot them a major premise to be articulated later, there are two other, fatal problems with it: it confuses states with the people who live in them; and it does not take into account that the ACA provides exemptions to the mandate for those who cannot afford qualifying coverage.
If State XX decided to quit Medicaid rather than accept new conditions on federal funds, the formerly Medicaid-eligible population of XX would likely be less than enthused, mandate or no. But here’s the thing. Even if they were subject to the mandate, the fact that Congress had imposed that burden on them would have precisely nothing to do with the state and its former Medicaid program. In no sense does the individual mandate place demands on the states in their sovereign capacity. It is touching that these states would equate a mandate upon its less fortunate citizens as a mandate upon the sovereign state itself. Touching, but false. And irrelevant. The mandate has nothing to do with Medicaid and nothing to do with the states (except in the minor sense that state officials in the Exchanges might certify compliance with the mandate).
What’s more, if Medicaid coverage were not available, the mandate would not apply to many people with incomes under 133% of the poverty level (FPL). This gets pretty complicated, so I’m going to save the details for another post. Suffice it to say that the mandate may not apply to people earning under 100% FPL, and people between 100% FPL and 133% FPL will either have access to subsidies or will be exempt due to the ACA’s provision excusing anyone for whom the cost of the cheapest qualifying plan would be more than 8% of their income.
In fairness, it is probably best not to think of these as separate arguments. Each fails on its own, but together they loosely approximate plausibility. As Joondeph wrote in an earlier post:
Perhaps, as the states’ brief seems to suggest, it is not any one of these factors in isolation, but the three in combination, in the context of a singularly enormous federal spending program, which renders the ACA’s Medicaid expansion unconstitutional. This is not implausible. But it is also hard to figure out how the Court could ever articulate a rule or principle of constitutional law that actually operationalizes the idea. Even if one could articulate it, the implications could be extremely destabilizing for constitutional law, and in an area that really matters (and matters on a regular, ongoing basis).
As I’ve written before, the Supreme Court’s precedents have left the door open to this kind of challenge, but they don’t illuminate a distinct line between what is and isn’t coercion. Probably because there isn’t one.
Not All Medicaid Provisions Were Created Equal
I feel like some key points I wanted to make in my last post got lost in . . . well, all those words. So I’ll try again. I do not think it is optimal policy to enforce Medicaid’s Section 30(A) “equal access” provision by means of litigating cuts in provider payment rates. The analysis required is not within the institutional competence of the courts.
But that’s not to say that there’s anything wrong with private enforcement of Medicaid provisions in general. For example, Igor Volsky wrote favorably of the Washington state supreme court’s recent decision blocking reductions in coverage of personal care for children. I agree completely with that decision and with the use of private litigation to enforce the provisions of federal Medicaid law at stake in that case.
But there are significant differences between the Washington case and the Independent Living Center case which is now pending at the U.S. Supreme Court (and which I wrote about last time). The Washington case, Samantha A. v. DSHS (pdf), concerned the “comparability requirements” of the federal Medicaid law, 42 U.S.C. 1396a(a)(10)(B), aka “Section 10(B).” Independent Living concerns the “equal access” provision, 42 U.S.C. 1396a(a)(30)(A), aka “Section 30(A).” The relevant difference between them is that Section 10(B) is cast in terms of guaranteeing a clear and specific individual entitlement, whereas Section 30(A) issues a broad, multi-faceted directive to the states which, while intended to protect Medicaid beneficiaries as a whole, does not accord them specific rights individually.1
The point is, some statutory provisions are better suited than others for enforcement by litigation. It is one thing to adjudicate individuals’ rights, but another thing entirely to adjudicate whether broad policy objectives are met.
- To be enforceable under 42 U.S.C. 1983, a statutory provision must contain clear rights-creating language. Note that the case was decided in state court, which means that a federal cause of action was not necessary anyway. But the case undoubtedly could have been brought in (or removed to) federal court. Unlike Section 30(A), the provisions implicated in Samantha A.—Section 10(B) and the “early periodic screening, diagnosis, and treatment” (EPSDT) provisions of 42 U.S.C. 1396d—have been found enforceable via Section 1983 civil rights actions. And whether we like it or not, the same rationale that has led the Supreme Court to limit the availability of § 1983 actions is very likely to apply to the Court’s consideration of actions brought under the auspices of the Supremacy Clause theory being tested in Independent Living. [↩]
Explaining the Administration’s Brief against Suits to Block Medicaid Cuts
There’s a bit of dissension simmering among Medicaid advocates over the surprising amicus brief (pdf) filed with the Supreme Court a few weeks ago by then-acting Solicitor General Neal Katyal in the case of Douglas v. Independent Living Center of Southern California. The brief takes the position that Medicaid providers and beneficiaries do not have the right to sue state governments over cuts in provider payments, even if the cuts would violate federal Medicaid law. That might sound harsh, as it would leave people without a remedy when state cuts threaten to make vital medical care unavailable. But I would contend that Katyal’s brief for the Administration has it right. The remedy that is needed is a policy remedy—one that requires balancing interests and responsibilities of varied groups of citizens and multiple levels of government—and should be formulated, enacted, and overseen by policymakers, not the courts.
Medicaid is a cooperative program jointly administered and financed by the federal government and the states. States have flexibility in setting provider payment rates but must conform to certain federal requirements. The underlying dispute in the Independent Living case is about whether California’s decision to cut Medicaid rates breached those federal requirements.
Under 42 U.S.C. § 1396a(a)(30)(A) (“Section 30(A),” also known as the “equal access provision”), a state participating in the Medicaid program must:
provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the [state Medicaid] plan . . . as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area[.]
(Note: Don’t worry, there’s nothing wrong with your eyes or brain. You’ve just read a tiny portion of Title XIX of the Social Security Act, and it always feels like that.)
Now, the issue on appeal to the Supreme Court is not the substantive issue of whether California’s rate cuts violated the bolded provision, but the threshold issue of whether Medicaid beneficiaries and providers have the right to sue the state to enforce that provision. There’s a bit of a history to this, but the short version is that, at least since its 2002 decision in Gonzaga v. Doe, the Supreme Court has curtailed access to the courts in cases like this by narrowing application of Section 1983 of the Civil Rights Act (42 U.S.C. 1983). It was once, but is no longer, possible to sue state officials via Section 1983 for violations of Medicaid’s equal access provision. So the California plaintiffs in Independent Living had to get creative and find a cause of action elsewhere.
Enter the Supremacy Clause theory. The Ninth Circuit let the plaintiffs’ substantive claims go forward, holding that the state can be sued via a nonstatutory “implied” right of action under the Supremacy Clause of the U.S. Constitution. The idea here is intuitive: there’s gotta be some way to make states conform to the federal statute—federal law being the “supreme law of the land” and all.1
But that intuitive rationale assumes a false dilemma between private enforcement and none. And while every right deserves a remedy, not every provision of law confers a right. There are good reasons not to read Section 30(A) to establish an enforceable individual right. One is the difficulty of assessing what constitutes compliance—what payment levels are sufficient to ensure access to care and are “consistent with efficiency, economy, and quality”—and, hence, of fashioning an appropriate remedy. The judiciary’s institutional competence to make those assessments is, in a word, suboptimal.2 To give just a little flavor to the point, consider that for any rate cut in provider payments, the state saves money which it might then use to finance more Medicaid enrollment or more expansive coverage. (The likelihood that it would in fact do so is beside the point.) How’s a court to decide if the new allocation has worsened access or improved it?
The fundamental obstacle to realizing the promise of equal access in Medicaid has not been simply a failure of enforcement. It is deeper than that. The problem has been that there is no broadly accepted measure of access to care. But as a result of a new report from the Medicaid and CHIP Payment and Access Commission (MACPAC) established in 2009, CMS has now proposed regulations (pdf) which would require states to develop data and methods for evaluating Medicaid beneficiaries’ access to care. The MACPAC report lays out a framework for analyzing access along three dimensions: (1) enrollee needs, (2) availability of care and providers, and (3) utilization of services. Within that broad framework, states would have flexibility to design methods as they see fit. The data and analysis would be publicly available and reviewed by CMS for sufficiency of access whenever the state proposed to amend its State Medicaid Plan in a way that reduced rates or restructured payments.
Medicaid advocates say federal enforcement is not a viable alternative to private suits, because it is hampered by limited means. CMS may withhold federal funds from states who fall out of compliance with Section 30(A), but such withholding only hurts providers and beneficiaries of Medicaid, not the state officials responsible.
However, the new regulatory scheme, if adopted, would transform the whole landscape. The metrics developed will for the first time give CMS the ability to make evidence-based evaluations of state plan amendments and—crucially—to reject amendments that are inconsistent with the mandate of equal access.
The Administration’s brief in Independent Living is not some sort of concession to states who want to cut Medicaid, or a betrayal of the goals of PPACA. As Suzy Khimm suggested in a guest post at Ezra Klein’s blog last week, it should be understood as part of a strategy to consolidate federal regulation and oversight in Medicaid. It seems to me that’s the approach most likely to realize the promise of Medicaid’s equal access provision.
- There’s a deeper legal rationale to the Supremacy Clause theory—one which explains some mysterious gaps in federal court jurisprudence and which I may post on separately—but it would take us pretty far afield from the Medicaid policy implications of interest here, so I’ll leave it aside for now. But it’s important to note that this is not an established theory recognized by the Supreme Court, and the chances it will be adopted now are slim. Furthermore, it is not the case that a decision in agreement with Katyal’s argument would undo a vibrant regime of private enforcement of Section 30(A). At present there is no regime of private enforcement of 30(A). [↩]
- Prior to Gonzaga, private enforcement of the equal access provision had been the norm, and the federal circuit courts developed their own, sometimes inconsistent standards for evaluating state compliance. For helpful background, see this discussion (pdf) by Boston University law professor Abigail Moncrieff. Also, see Moncrieff’s article on the trend toward federal enforcement. [↩]
Dual Eligibles, with Charts
Lester Feder, out from behind the curtain of Politico Pro, commits a blatant act of policy journalism in a piece about what may or may not be wishful thinking by the Administration, which is hoping to find ways to reduce the costs of caring for Medicare-Medicaid dual eligibles through better coordination of care and financing.
They are among the patients with the severest need for care and the fewest resources to get it. [...]
Caring for these individuals is complicated by the fact that Medicare and Medicaid don’t always interact well with one another. Medicare — the federally funded program for seniors and some younger people with disabilities — is the primary insurer for dual eligibles. Medicaid — the joint federal/state program that covers many low-income Americans with disabilities — fills in its gaps in coverage.
And the gaps in Medicare coverage for dual eligibles are big. So big that the costs of Medicaid’s gap-filling coverage are greater than the costs of the Medicare coverage itself:
Feder again:
The two programs, said Barbara Lyons, director of the Kaiser Commission for Medicaid and the Uninsured, “have different policies, and those policies don’t line up very well.”
To illustrate her point, she suggested imagining you’re a patient with multiple chronic conditions who lands in the hospital. Medicare will pick up the tab once you’re admitted. But after you’re discharged, neither program covers the intensive follow-up care required to keep you healthy. So you deteriorate, and after another Medicare-financed hospital stay, you wind up in a nursing home, which is covered for a limited period by Medicare and then indefinitely by Medicaid.
This fractured financing is obviously a tragedy for the beneficiary’s health. Gaps in care can result in an individual who could have had many more years at home being confined to an institution for life. But it also is a disaster for the health care financing system. Public programs are paying for an extra hospitalization plus nursing home care that could have been avoided through better care after the initial discharge.
“If you could better coordinate care,” Lyons said, “you could decrease some unnecessary hospitalization and potentially some long-term-care costs.”
I don’t have any valuable analysis to add, but here’s another chart from KFF that illustrates the most dramatic fact about Medicaid spending on its highest cost enrollees: that 5% of enrollees account for about 54% of program spending:
Some but not all of that 5% are dual eligibles. The dual eligibles themselves make up about 15% of Medicaid enrollees and account for about 40% of costs, as shown in the first chart above.
Read the rest of Lester’s piece. H/t Austin Frakt.
Make Medicaid Better
I am by no means equipped to referee Avik Roy’s challenge to the methodology behind the studies Austin Frakt reviewed in his series, Medicaid-IV. Basically the studies compare health outcomes for people with public insurance (Medicare or Medicaid), private insurance, or no insurance at all. The findings, Austin concludes, generally support the non-shocking proposition that Medicaid improves health—it is better for your health than being uninsured, though not as good for your health as being privately insured.
Roy takes issue with the IV studies (“IV” stands for “instrumental variables.” See here.) on various grounds and dismisses their results, pointing to a University of Virginia study that purportedly contradicts them. I think everyone agrees that the UVa study Roy cites shows dismayingly poor outcomes for Medicaid patients, outcomes even worse than those for the uninsured. But Roy wants to parlay these results into an argument that Medicaid is actually harmful—that Medicaid actually causes harm and makes people sicker than they’d be without any insurance at all.
But that conclusion is not merited if the data is tainted by selection bias. Austin writes:
Medicaid enrollment or being uninsured is not random. Worse, some of the factors that affect self-selection into Medicaid or uninsured status also affect (health and non-health) outcomes. This is a source of selection bias. For example, if sicker individuals are more motivated to enroll in Medicaid we will find that Medicaid is correlated with worse health outcomes. But that’s a selection effect, not an effect of Medicaid.
And because you can’t (ethically) randomize who enrolls in Medicaid and who remains uninsured, you must resort to clever techniques like instrumental variables, which effectively achieve retroactive randomization.
I don’t fully understand all the technical issues here, but I understand even less the conclusions Roy would have us draw. Roy complains that “very few people on the Left were willing to take on the challenging task of exploring why Medicaid patients fare worse than the uninsured, and how we might make Medicaid better.” But his own solution doesn’t seem aimed at making Medicaid better so much as dismantling it and replacing it with direct cash or vouchers.
Those are not unreasonable ideas to advocate for, and I can appreciate that Roy would like everyone to achieve the improved health outcomes associated with private insurance coverage. But it does strike me as unreasonable to think that voucherizing Medicaid is necessarily the right solution, whatever the problem. Roy says, “It’s Medicaid that restricts access to the best hospitals and the best doctors and the best treatments.” But that could just as well be an argument for raising Medicaid’s reimbursement rates to private-insurance (or Medicare) levels. He also thinks that “welfare dependency” and “social disrepair” are part of the problem. But if those things are factors in poor health outcomes in Medicaid, why shouldn’t we expect them to have a similar effect on outcomes in Voucher-caid?
So, even if all the relevant studies showed what Roy thinks they show, that Medicaid is more harmful than helpful, it would not be obvious whether the explanation should be sought on the provider side or the patient side or both. But surely it would be irresponsible in any case to set about dismantling Medicaid without identifying to a reasonable degree of confidence why its outcomes are bad. The responsible thing to do would be to take obvious action likely to improve the program—say, increasing provider reimbursements to Medicare levels—and to make a dedicated effort to study Medicaid quality issues more closely. Conscientious policymakers would pursue those objectives in any case, because they are prudent things to do.
Interestingly enough, if one scrolls through one’s PDF of the Patient Protection and Affordable Care Act, one finds: § 1202, which raises Medicaid payments to primary care physicians to Medicare levels, at least in 2013-2014;1 § 2701, which establishes a Medicaid Quality Measurement program for adults (one already exists for children), and § 2801, which enhances the quality assessment capabilities of MACPAC (the Medicaid and CHIP Payment and Access Commission).
Maybe those measures will be ineffectual. But surely the thing to do is to try to make current policy better, even as we study and debate how to make future policy best.
- The provision is codified at 42 U.S.C. §1396a(a)(13)(C). The amended portion of the Social Security Act is here: § 1902(a)(13)(C). I don’t know why it only raises reimbursement for those 2 years. [↩]
Big MOE
Health and Human Services Secretary Kathleen Sebelius has given the state of Arizona the go-ahead to pare back its Medicaid program by dropping coverage for 250,000 childless adults, a move which could cut the state’s budget deficit in half, saving about $541 million. In general, the Affordable Care Act’s maintenance-of-effort (MOE) requirements make it very hard for states to reduce Medicaid or CHIP coverage—that is, their “eligibility standards, methodologies, or procedures”—any time before 2014. If they do so for any period in the interim, they will lose all federal Medicaid funds for that period.
But Arizona’s current coverage of childless adults is part of a special agreement (known somewhat confusingly as a “waiver” because it operates outside the terms of the State Medicaid Plan) between the state and HHS to expand coverage beyond the minimum essential categories of eligibility. Under certain narrow circumstances, the ACA allows states to let such waivers expire:
During the period that begins on January 1, 2011, and ends on December 31, 2013, the requirement under paragraph (1) shall not apply to a State with respect to nonpregnant, nondisabled adults who are eligible for medical assistance under the State plan or under a waiver of the plan at the option of the State and whose income exceeds 133 percent of the poverty line (as defined in section 2110(c)(5)) applicable to a family of the size involved if, on or after December 31, 2010, the State certifies to the Secretary that, with respect to the State fiscal year during which the certification is made, the State has a budget deficit, or with respect to the succeeding State fiscal year, the State is projected to have a budget deficit.
PPACA § 2001. So, a state can drop coverage for non-pregnant, non-disabled adults with incomes over 133% FPL, if the state has a budget deficit. Only a handful of states extend coverage to childless, low-income adults. My guess is that Arizona is not the only one projecting a budget deficit.
Hat tip Don Taylor.
We Get What We Pay For
Health reform politics can have a bit of a Bizarro World feel to it at times: the ACA saves hundreds of billions of dollars/costs too much; “keep the government out of my Medicare”; and so forth. Aaron Carroll presents another classic of the genre:
Complaints about Medicaid seem to fall into two camps: (1) we need to cut it, and (2) it doesn’t reimburse enough. The odd part is that I often hear these same arguments coming from the same people. Please understand that the reason that Medicaid doesn’t reimburse enough is that it is underfunded. The Medicaid population, on the whole, is sicker and more costly than the privately covered pool. But, because we underfund it, it’s cheaper to put people in Medicaid than to pay for them to get private insurance. The reason that the PPACA puts 20 million more people in Medicaid is that it was cheaper than putting them in the exchanges to get private insurance.
It turns out that Medicaid—despite its problematic duplicity as a state-administered federal law—adheres to the rather non-paradoxical principle of “you get what you pay for.” That’s good to remember. It’s also worth noting that people who are on Medicaid get more than they would otherwise get for the very same dollars spent independently or through a health savings account, as conservative policymakers would generally prefer. That’s a result of the leverage that government has over providers by virtue of being a comparatively large insurer. In other words, this is an area where big government adds value. There are plenty of problems with Medicaid, and reimbursement is low, but the fact that it is a government insurance program that achieves cost-savings on care for the poorest and sickest Americans should not count against it.
Alabama’s Medicaid Forms
I lived in Alabama for a two-year stretch in the Aughts, and I don’t usually accentuate the positive when I think about its state government. So I feel I should acknowledge when it does something smart.
The feds gave states extra Medicaid money based on how many public health insurance eligible children they could sign-up. Alabama was the big winner thanks to some pre-filled forms. The NYT reports:
Alabama will receive a $55 million bonus, more than twice as much as any other state, for having 133,000 more children on its Medicaid rolls than projected by a formulated base line, according to the Department of Health and Human Services. The 15 states that will receive bonuses reported a total of 874,347 children above the baseline, which factors in population growth and, to some degree, demand driven by the economy.
To make enrollment easier, Alabama has eliminated asset tests for children, ended requirements for an in-person interview and allowed children to remain eligible for a year without renewal. It also sends out renewal forms with blanks filled in when data is known, and allows applicants to verify their forms with an electronic signature. The state has adopted “express lane eligibility” so that Medicaid application processors can use income findings from other safety net programs to validate eligibility.
Via Nudge blog. That money is from the CHIP Reauthorization of 2009, not the ACA, in case you were wondering. Under the ACA, HHS has awarded Alabama $17.1 million in grants, according to healthcare.gov.
The Other Issue in Florida
Today’s hearing in Pensacola—city of five flags, America’s first European settlement (sort of), and birthplace of me—concerns not only the familiar arguments over the individual mandate, but also the states’ claim that the ACA’s Medicaid reforms are unconstitutionally coercive, effectively commandeering state governments.
Medicaid is administered by state-government agencies but funded jointly by state and federal dollars (with the feds paying the lion’s share). State participation in the program is voluntary. The 20 states challenging the ACA claim that, by requiring state Medicaid programs to expand eligibility to everyone earning up to 133% the federal poverty level and to dispense with all other categorical eligibility restrictions, the federal government is imposing a huge liability on state government. The argument is that, even though Medicaid is a voluntary program, states are not “really” free to drop out if they don’t like the strings attached to the federal funding.
The recent experience of the state of Texas provides a good illustration. Texas studied (pdf) the likely consequences of dropping out of Medicaid when Governor Rick Perry began publicly mulling the possibility. It found that “the state would…lose billions each year in federal funds; billions of dollars in indigent health care costs would shift from the state and federal levels to local governments, public hospital districts, medical providers, and the privately insured; and 2.6 million Texas residents could lose health insurance, depending on future coverage options the state chooses to pursue.” (Hat tip Igor Volsky.) Clearly certain state politicians resent being subordinate to federal legislative power, but also it’s true that, in a very real political sense, they have no viable alternative to implementing the ACA’s Medicaid reforms.
However, the question is whether the political pressure thus applied by the ACA is so coercive as to constitute unconstitutional interference with state-sovereign government. And that’s a hard sell.
But the states do have a colorable claim here. That’s because the Supreme Court’s precedents in the area do not articulate a “bright-line rule” to follow. In South Dakota v. Dole, the Court upheld federal conditions on grants to state and local governments, specifically in that case the condition that 5% of highway funds would not be available to states who did not adopt a drinking age of 21. However, the Court acknowledged that at some point “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.” And compulsion is verboten.
Obviously this raises the problem of how to distinguish mere pressure or encouragement from excessive coercion or compulsion. It has been my intuition that the Court’s majority couldn’t settle on any objective limitation on the spending power but also did not want to give Congress carte blanche to impose draconian conditions. So they said the conditions must be related to the spending purpose; they must be clearly stated in the legislation; and they can’t be too harsh—or at least not tooooo harsh.
That not-tooooo-harsh qualification is the basis for the 20 states’ challenge to the ACA’s upgrade of Medicaid eligibility standards. It seems like a weak claim, because the basic qualitative framework of Medicaid—feds pay the lion’s share of the state-administered health insurance for the poor—remains the same. Many more people will be eligible (more than 15 million nationwide), but the feds will pick up a greater portion of the tab. Nevertheless the claim is not meritless, because no rule or principle exists that can tell you how much is tooooo much when it comes to federal conditions on grants to the states.
Check out Brad Joondeph’s excellent, in-depth analysis of the commandeering issue at the ACA Litigation blog.
Medicaid Expansion
Since its inception, Medicaid benefits have been available only to certain categories of people: the disabled, the elderly, pregnant women, and dependent children and their families. Income requirements in many states have varied between each of these categories, and each state’s requirements are different from every other state’s.
For example, in Georgia, pregnant women are eligible if they earn 200% of the federal poverty level (FPL) or less. A child under age one is eligible up to 185% FPL; a child between one and five, up to 133% FPL; between six and nineteen, up to 100% FPL. Working parents are eligible up to 52% FPL, non-working parents…up to 29%. And so on. The Foundation for Health Coverage Education helpfully compiled matrices of all the options in every state here (pdf).
The Affordable Care Act does away with all the eligibility categories. Beginning in 2014, anyone with income under 133% FPL will be eligible for Medicaid. This is expected to expand coverage to 16 million people, assuming normal rates of participation—another 7 million who will be eligible are expected not to enroll. (See this report [pdf] from the Kaiser Family Foundation.) The following graphic from the Washington Post breaks down projected percentage increases in Medicaid enrollment by state:
Don’t Forget The Real Public Option
It’s worth remembering that the bill’s real public plan, the one that matters most, is still intact: Medicaid expansion. CBO estimates that extending Medicaid eligibility to everyone under 133% FPL will insure 15 million people who would otherwise be uninsured. The public option, by contrast, was projected to cover between 3 and 4 million people who could just as easily buy a private plan. We don’t have numbers on the Medicare buy-in yet (if we ever will), but it is probably in the ballpark of 3 million people.
So remember that. Expanding Medicaid is a much, much bigger deal than the “public option” in the exchanges. It helps more people, and it helps the people who need it most. That’s no reason to be disconsolate. This is an epic victory for liberal America.
And one more thought: what’s to stop the Congress from taking up a reconciliation bill with a robust public option (pegged to Medicare reimbursement, as originally conceived) within the next year or two? Let the public option and Medicare buy-in be the goal posts for the next bill.
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