The president's pick to replace retiring Supreme Court Justice Anthony Kennedy could have a long-lasting impact on U.S. healthcare policy.
President Donald Trump announced Monday evening that he will nominate D.C. Circuit Court Judge Brett Kavanaugh to serve as the next associate justice of the U.S. Supreme Court following the retirement of Justice Anthony Kennedy.
The nomination—Trump's second since taking office less than 18 months ago—would replace Kennedy's swing vote with a more-reliably conservative voice, perhaps with long-reverberating consequences for the nation's healthcare policy.
Kavanaugh's past rulings on politically charged healthcare topics, including the Affordable Care Act and abortion, are likely to face fresh scrutiny as senators mull his possible confirmation.
Despite railing against the ACA and promising on the campaign trail to nominate only justices who would overturn Roe v. Wade, Trump claimed Monday that he selected Kavanaugh without asking him about his personal opinions.
"What matters is not a judge's political views but whether they can set aside those views to do what the law and the Constitution require," Trump said, lauding Kavanaugh's accomplishments.
"There is no one in America more qualified for this position and no one more deserving," Trump later added.
For his part, Kavanaugh introduced himself and his family Monday with a brief summary of his approach to the law and the judiciary.
"My judicial philosophy is straightforward," he said. "A judge must be independent, must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent."
Past Healthcare Rulings
Senators will have a veritable mountain of material to sift through as they review Kavanaugh's nomination, possibly including millions of records from his time working for former President George W. Bush's administration and Whitewater Independent Counsel Ken Starr, as Politico reported.
For a window into his views on healthcare—especially on the ACA and abortion rights—there's perhaps no better place to look than his past rulings:
On the individual mandate: In 2011, the D.C. Circuit Court held 2-1 that the individual mandate was legal under the Commerce Clause. Kavanaugh dissented, contending that the mandate qualified as a tax (and was, therefore, not yet eligible for legal review). In 2012, the Supreme Court affirmed the mandate as a tax, rejecting the appellate court's Commerce Clause justification.
Kavanaugh's reading could come full circle, if a legal challenge launched by conservative states progresses to the Supreme Court. The states argue that the entire ACA was rendered unconstitutional when Congress zeroed out the tax penalty tied to the individual mandate, canceling its status as a tax. In response to the lawsuit, the Trump administration abandoned its defense of key ACA provisions.
On contraception: Kavanaugh concluded in 2015 that the ACA's requirements around mandatory contraception coverage violated the freedom rights of religious employers. But his dissent included a bit of a clarification: "The Government may of course continue to require the religious organizations' insurers to provide contraceptive coverage to the religious organizations' employees, even if the religious organizations object," he wrote, citing Supreme Court precedent.
On abortion: Kavanaugh, who identified himself Monday as part of D.C.'s Catholic community, dissented in 2017 in a case wherein the court sided with an immigrant seeking an abortion. The government has "permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating an abortion," and it "may further those interests so long as it does not impose an undue burden on a woman seeking an abortion," Kavanaugh wrote. All parties in that case had acknowledged Roe v. Wade as binding precedent, he noted.
At 53 years old, Kavanaugh could serve on the Supreme Court for decades to come.
The criminal complaint alleges the ex-exec sent harassing messages after he was placed on leave in February.
The former top executive of Mon Health System in Morgantown, West Virginia, has been charged with misdemeanor harassment for messages he allegedly sent to his successor.
After resigning in March from his post as the system's president and CEO, Darryl Duncan sent several emails designed to harass the person who would replace him, according to a criminal complaint acquired by HealthLeaders Media.
The complaint, which is signed by a detective with the Monongalia County Sheriff's Office, further alleges that Duncan sent harassing mail to the employer and to his coworkers' homes and places of worship.
The complaint does not include any detail on the substance of Duncan's messages, nor does it specify the names of the targets of his alleged harassment. If convicted, he could face a $1,000 fine and up to six months in jail, as The Dominion Post reported last week. Duncan pleaded not guilty.
A spokesperson for the health system told the Post that the organization is aware of the allegations.
"We will fully cooperate as law enforcement investigates these claims, but it would not be appropriate for us to comment further at this time,” the spokesperson told the Post.
February 6: More than two dozen physicians with the system's Mon Health Medical Center signed a letter to the board, calling on Duncan to resign, as the Post reported.
February 7: Duncan was placed on leave, and Chief Operating Officer Dottie Oakes took over as CEO on an interim basis, as The Associated Press reported.
March 19: Duncan officially resigned from his post. Oakes also resigned in late March.
April 5: Thomas Senker takes over as interim CEO of Mon Health System and Mon Health Medical Center, as the AP reported.
The criminal complaint does not specify the dates on which Duncan's alleged harassment took place.
Health insurers could look to raise their 2019 premiums if the Trump administration doesn't follow through on payments that were supposed to be a permanent feature of the healthcare law.
There's a great deal of uncertainty among health insurers after the Centers for Medicare & Medicaid Services confirmed over the weekend that it would halt $10.4 billion in planned risk-adjustment payments for the 2017 benefit year.
The announcement came Saturday evening after The Wall Street Journal reported Friday that the Trump administration was expected to suspend the Affordable Care Act program, prompting concerned insurers to call for a quick resolution and critics to accuse the government of further chipping away at the ACA's foundation.
"We are very discouraged by the new market disruption brought about by the decision to freeze risk adjustment payments. This decision comes at a critical time when insurance providers are developing premiums for 2019 and states are reviewing rates," the Association of Health Insurance Plans said in a statement, adding that the move will affect millions of consumers.
"It will create more market uncertainty and increase premiums for many health plans—putting a heavier burden on small businesses and consumers, and reducing coverage options. And costs for taxpayers will rise as the federal government spends more on premium subsidies," AHIP said.
Blue Cross Blue Shield Association President and CEO Scott Serota said the association is "extremely disappointed" in the Trump administration's decision, noting that risk adjustment is required by law.
"Without a quick resolution to this matter, this action will significantly increase 2019 premiums for millions of individuals and small business owners and could result in far fewer health plan choices," Serota said in a statement. "It will undermine Americans' access to affordable coverage, particularly for those who need medical care the most."
The Stated Rationale
The CMS announcement cited a four-month-old decision by a federal judge in New Mexico as the basis for putting risk-adjustment payments on hold.
Although a federal judge in Massachusetts sided with CMS in January and ruled that the federal government acted within its authority when it created its risk-adjustment methodology in 2013 based on statewide average premiums, the federal judge in New Mexico barred CMS in February from collecting or making payments using that methodology, CMS said.
"As a result of this litigation, billions of dollars in risk adjustment payments and collections are now on hold," CMS Administrator Seema Verma said in Saturday's announcement.
"CMS has asked the court to reconsider its ruling, and hopes for a prompt resolution that allows CMS to prevent more adverse impacts on Americans who receive their insurance in the individual and small group markets," Verma added.
The government is waiting on the New Mexico judge to issue an additional ruling after a hearing was held June 21 on the government's motion to reconsider, CMS said.
Critics Cry 'Sabotage'
While acknowledging that the contradictory opinions issued by the judges in Massachusetts and New Mexico present a legitimate legal obstacle course, proponents of the ACA accused the Trump administration of taking an unnecessary action to weaken the oft-derided Obama-era law.
"It’s an excuse," University of Michigan health law professor Nicholas Bagley told the Journal over the weekend. The administration's claim that its hands are tied is false, Bagley said in a blog post Monday arguing that CMS still has "lots of options."
Jon Kingsdale, PhD, a former state health official in Massachusetts, told The Huffington Post that the administration "seems to be jumping at yet another opportunity" to undermine the ACA.
"On top of a half-dozen other hits to the ACA marketplace, this will add to health plans' anxieties about getting stuck with a deteriorating risk pool," Kingsdale said.
Andy Slavitt, who served as an acting CMS administrator in the Obama administration, described the freezing of risk-adjustment payments as "aggressive and needless sabotage" likely to cause chaos.
Slavitt said the administration could resolve the present uncertainty over risk-reduction payments by issuing an interim final rule.
"But instead Trump is using this as a big bullet in hopes of finally killing the ACA," he said in a tweet.
What's to Come?
Katie Keith, JD, MPH, wrote for HealthAffairs that issuing a clarification could be the quickest way for CMS to address the New Mexico judge's concerns and ensure that insurers receive their payments for 2017 and 2018 in a timely fashion.
"Although the ongoing litigation raises the question of whether there will be a delay in risk adjustment transfers for 2017 and 2018, the payments themselves should not be at risk," Keith wrote.
Larry Levitt, senior vice president for the Kaiser Family Foundation, said in a tweet that how this story unfolds will depend on what the government does next.
"The key thing to watch is whether the Trump administration uses the legal dispute as an excuse to cancel payments to insurers and create chaos, or instead tries to work through the legal process and make the payments as planned," he wrote.
Editor's note: This story has been updated to include additional information attributed to Nicholas Bagley. John Commins contributed to this report.
In latest filing, HHS argues there's a broader principle at play than the potential reimbursements totaling up to $4 billion.
As the U.S. Supreme Court prepares to consider this fall whether to take up a case implicating potentially billions of dollars in Medicare payments, hospitals that provide high rates of uncompensated care are lining up to ask the federal government for their piece of the pie.
The D.C. Circuit Court ruled less than a year ago that Health and Human Services violated the Medicare statute by failing to conduct a notice-and-comment rulemaking process when it implemented a policy affecting disproportionate-share hospital (DSH) reimbursements. Since then, providers have filed about 30 lawsuits in the D.C. District Court raising similar claims, according to a filing submitted Thursday to the Supreme Court on HHS Secretary Alex Azar's behalf.
Some of the suits include dozens of plaintiffs. Most of them have been stayed pending the Supreme Court's next move.
"The monetary stakes and hospitals' legal sophistication will likely lead to future cases raising similar issues being litigated in the District of Columbia, where the decision below constitutes binding precedent," Solicitor General Noel J. Francisco wrote in the filing, arguing that the Supreme Court should take the case so HHS may argue that the appellate court's decision should be overruled.
The respondents—who argued the Supreme Court should deny the HHS request and let the Circuit Court decision stand—include just nine hospitals, but their claims for a single year total $48.5 million in additional reimbursement. Considering that about 2,700 hospitals receive DSH payments, the financial stakes surrounding this case are clearly quite high.
Although the appellate court sided with the hospitals' claim that HHS broke the law by skipping notice-and-comment rulemaking, the latest HHS filing argues that the ruling was faulty and that there's a broader issue at play.
The respondents both "miss the point and are wrong" about the legal standard, the HHS filing states.
"They miss the point because the logic of the decision below would apply to any context in which the agency gives its contractors interpretive instructions about making initial reimbursement decisions," the filing states, noting that providers have the option to challenge initial cost-reporting determinations.
In other words, if HHS is required to engage in notice-and-comment rulemaking to calculate DSH reimbursements, then it must be required to do the same in other matters that would make running Medicare and other programs unworkable, HHS argues.
The Supreme Court is set to consider in a conference September 24 whether to take up the case.
The controversial payroll policy has been 'standard practice' for many healthcare organizations, the hospital said.
Under pressure from the U.S. Department of Labor, a Texas hospital recently ended its practice of automatically deducting 30-minute lunch breaks from its employees' time cards.
Lubbock County Hospital District's University Medical Center (UMC) in Lubbock, Texas, paid $119,175 in back wages to 197 healthcare workers in the hospital's emergency department to settle alleged violations of the Fair Labor Standards Act (FLSA), according to a DOL announcement.
Investigators found that the hospital had been recording lunch breaks for its employees regardless of whether they actually stopped working to eat. The government accused the hospital of FLSA violations pertaining to overtime pay and recordkeeping.
In a statement, the hospital confirmed that it had quit using automatic deductions, while noting that the system it had been using is common in the industry, as EverythingLubbock.com reported.
"Automatic deductions for lunch has been a standard practice for many hospitals and other health care facilities. UMC had methods by which employees could report a missed lunch, but those methods were not effective in capturing all missed lunches," the UMC statement said.
"UMC values its employees and works to assure accurate payment," it added.
Ryan Martin, assistant district director for the DOL Wage and Hour Division's Lubbock-area office, encouraged employers to proactively review their policies to avoid problems like the ones UMC encountered.
"Wage violations can be avoided when employers understand the rules," Martin said. "We encourage employers to contact us for guidance on laws governing rest breaks and any other requirements so they can avoid violations. The division offers many tools to help employers comply."
When an employer discovers overtime or minimum-wage violations, they may self-report them to DOL and resolve the matter without litigation through the Payroll Audit Independent Determination (PAID) program.
The latest case comes as the U.S. Supreme Court mulls whether to take up a related case involving Allina Health Services.
Three more hospitals filed suit Tuesday against Health and Human Services Secretary Alex Azar over the way HHS calculated disproportionate share hospital (DSH) payments a decade ago.
The plaintiffs—East Carolina Health's Roanoke Chowan Hospital in Ahoskie, North Carolina; Baystate Wing Hospital and Medical Center in Palmer, Massachusetts; and Pitt County Memorial Hospital in Greenville, North Carolina—say HHS should be ordered to recalculate their DSH payments and promptly send them the additional funds they're owed, plus interest.
The suit accuses HHS of continuing to use a 2004 version of the formula despite court decisions repeatedly finding cracks in the formula's policymaking foundation.
"Although the D.C. Circuit has now twice ruled against the Secretary’s 2004 policy, the Secretary has not acquiesced in either of those decisions," the complaint filed Tuesday in the D.C. District Court states. "Instead, the Secretary’s agency has continued to apply the … policy adopted in the now-vacated 2004 rule, including in the payment determinations at issue for the plaintiff hospitals in this case."
The plaintiffs argue that HHS inappropriately shortchanged them in fiscal year 2008 (during former President George W. Bush's second term). Court records indicate that the reimbursement in question amounted to hundreds of thousands of dollars for each plaintiff.
Why HHS Hasn't Acquiesced
The reason why Azar hasn't implemented either of the D.C. Circuit decisions, both of which involve lead plaintiff Allina Health Services, is because he has asked the U.S. Supreme Court to review the matter, suggesting up to $4 billion in reimbursements for uncompensated care may be at stake.
Azar's petition for a writ of certiorari was filed April 27. Allina Health Services and its fellow respondents filed a brief in opposition June 19. And the court noted Tuesday that it will consider the HHS petition in a conference scheduled for September 24.
It is during this conference that the justices will decide whether to consider the case, though it's worth noting that the court grants certiorari in only about 1%of petitions filed each year.
The firm representing the three plaintiffs in the latest case, Akin Gump Strauss Hauer & Feld LLP, also represents more than 100 plaintiffs in a related suit filed in June 2017. That case has been stayed pending a decision by the Supreme Court on whether to grant Azar's petition.
The firm's website says it has represented a Massachusetts hospital in the first appellate decision that invalidated the HHS formula on DSH payments; represents more than 30 of the largest DSH hospitals in the lead case challenging the formula; and won the lead case among 270 consolidated federal lawsuits involving more than 600 hospitals seeking additional DSH payments.
An attorney with the firm could not immediately be reached Tuesday for comment.
Effectuated enrollment was about 3% higher this year than last year, with 10.6 million people paying their first-month premiums.
In a statement released Monday with three reports on the individual health insurance market, the Centers for Medicare & Medicaid Services bemoaned the way middle-income Americans and the federal government are being squeezed.
Rising premiums have reduced the number of affordable coverage options for some consumers and increased the cost of premium subsidies for the government. That reality, the agency argued, highlights the need for CMS to move forward with plans to allow more affordable coverage alternatives.
"These reports show that the high price plans on the individual market are unaffordable and forcing unsubsidized middle class consumers to drop coverage," CMS Administrator Seema Verma said in the statement.
Between 2016 and 2017, when premiums increased 21%, average monthly enrollment in individual market plans decreased 10%, according to the report. That included a 3% decline in APTC-subsidized enrollment and an "alarming" 20% decline in unsubsidized enrollment, CMS said, noting that this occurred while the Obama administration's rules and rates were still in effect.
Open enrollment for 2017 coverage ran from November 2016 through January 2017, bridging the gap between Donald Trump's election as president—in which his campaign's promise to repeal and replacethe Affordable Care Act featured prominently—and his inauguration.
The CMS statement noted that certain states have seen especially large drops in enrollment among residents who don't qualify for APTC subsidies.
"The unsubsidized portion of some state individual markets have clearly entered a death spiral, with unsubsidized enrollment dropping by more than a third in 14 states, including an astonishing 73% decline in Arizona," the agency said.
Only six states saw an increase in the number of unsubsidized enrollees between 2016 and 2017, according to the CMS data. All of them were single-digit increases.
Lower-Cost Options
The conclusion CMS reached aligns with the Trump administration's push for short-term limited duration (STLD) options and association health plans (AHP)—alternatives that are cheaper than ACA-compliant plans because they offer skimpier coverage than ACA-compliant plans.
Since these lower-cost options are especially attractive to healthier consumers, expanding access to STLD plans and AHPs would leave sicker beneficiaries behind, ultimately increasing premiums by an estimated 2-3% for other small-group and nongroup plans, according to a report published in May by the Congressional Budget Office.
But skimpy health plans aren't the only Trump administration policy that CBO projected would increase health insurance premiums. In a report last August, CBO and the Joint Committee on Taxation said ending cost-sharing reduction (CSR) payments to insurers would increase silver-plan premiums in 2018 by about 20% above the previous baseline.
The reports CMS released Monday seem to confirm the sequence of events CBO had predicted:
CSR payments discontinued. The acting secretary of Health and Human Services halted CSR payments last October, according to the effectuated enrollment snapshot CMS published Monday. Even so, the ACA still requires insurers to provide reduced cost-sharing to eligible consumers.
CBO predicted higher premiums and subsidies would ensue. In addition to predicting a 20% increase in silver-plan premiums in 2018, the CBO estimated last August that the federal government would wind up paying more in federal subsidies for health insurance in the nongroup market because both the number of people receiving subsidies and the average amount of subsidy per person would increase.
CMS reported higher premiums and subsidies ensued. In its statement Monday, CMS said the average monthly premium for coverage purchased through the exchanges rose 27% this year and that federal premium subsidies increased 39%, from $373 in 2017 to $520 in 2018.
The CMS statement suggested Obama administration rules and rates were to blame for a 20% drop in unsubsidized enrollment in late 2016, and it credited the Trump administration for taking "immediate steps" in 2017 to improve the exchanges and stabilize the market.
The statement made no mention of the halted CSR payments, and a CMS spokesperson did not respond when asked whether CMS disputes CBO's projection.
The Trump administration's decision to end CSR payments is far from the only political move to weaken the ACA, of course, as Sam Baker wrote for Axios. Some provisions that had been planned for the Obama administration's signature healthcare law never passed, and CBO seems to have overestimated enrollment.
The three reports CMS released Monday are as follows:
Although fewer people signed up for 2018 coverage through state and federal exchanges than they did for 2017, more people effectuated their coverage (by paying their first-month premiums) this year than they did last year, according to the enrollment snapshot.
Of the 11.8 million people who made 2018 plan selections during open enrollment on the exchanges, about 91% of them, or 10.6 million people, had effectuated coverage as of March 15, 2018. That's about 3% higher than the 10.3 million people who had effectuated coverage as of March 15, 2017.
Customer satisfaction rose from 85% last year to 90% this year, an all-time high, according to the exchange trends report.
The company's stock price has declined 94% since its peak three years ago.
After closing at an all-time low of $3.32 on Friday, shares for Community Health Systems slipped even further on Monday, falling as low as $3.12 in mid-day trading.
The company's stock price has declined about 94% since its peak at $52.71 three years ago. The hospital operator, based in Franklin, Tennessee, has struggled financially in recent years, selling off hospitals as it grapples with a high debt burden.
The latest slump in CHS shares comes after the company offered more than $1 billion in senior secured notes Thursday, which CHS plans to use to pay some of its outstanding loans and related fees, according to documents filed with the Securities & Exchange Commission.
The sale of the notes, which is expected to be completed this Friday, comes after S&P Global Ratings lowered its corporate credit rating for CHS last spring.
Beneficiaries who would have been subject to work requirements under Kentucky's waiver are the ones affected by the loss in coverage.
Kentucky residents who gained coverage for dental and vision care under Medicaid expansion lost it Sunday after a judge decided to block changes to the commonwealth's program.
The judge found the federal government's approval of Kentucky's waiver request, which included work requirements for some beneficiaries, to be "arbitrary and capricious." So he halted implementation of the changes and sent the matter back to Health and Human Services for further review.
The beneficiaries who would have been subject to those work requirements, including able-bodied adults without dependents, would have had access to dental and vision coverage only through earning dollars in a "My Rewards" account, as WFPL Health and Innovation Reporter Lisa Gillespie reported Sunday.
A spokesperson for the Kentucky Cabinet for Health and Family Services told WFPL that the court's decision invalidated the "My Rewards" program, leaving no legal mechanism to fund the coverage for about 460,000 people on the alternative benefit plan.
Kentucky reassured Medicaid beneficiaries that they will continue to have medical benefits despite the judge's ruling.
"However, if you received a notice saying you could access vision and dental services through a My Rewards Account, you will not have access to dental and vision benefits," a notice on the Kentucky HEALTH website states. "The legal decision has stopped the ability to use the My Rewards dollars in order to purchase dental and vision services."
The loss in dental and vision coverage does not affect kids, pregnant women, medically frail beneficiaries, former foster care recipients up to age 26, and those who received Medicaid coverage before expansion, as WFPL reported.
Kentucky Gov. Matt Begin has threatened to abandon Medicaid expansion entirely if any part of his waiver request for the program is blocked. An appeal is expected.
The federal judge in D.C. deemed the approval of Kentucky's waiver 'arbitrary and capricious' and sent the matter back to HHS for further review.
A federal judge in Washington, D.C., vacated the approval of Kentucky's Medicaid waiver Friday afternoon, just hours before the commonwealth was to begin implementing work requirements Sunday for some beneficiaries.
Kentucky was the first of four states, thus far, to secure approval for such work requirements. At least seven more have applications pending. But this decision could prove to be a major setback for the Trump administration's plans for the program.
D.C. District Court Judge James E. Boasberg wrote in an opinion that federal officials approved Kentucky's waiver request inappropriately because they failed to account for Medicaid's purpose, which is to provide for medical services.
"Although the Secretary is afforded significant deference in his approval of pilot projects like Kentucky's, his discretion does not insulate him entirely from judicial review. Such review reveals that the Secretary never adequately considered whether Kentucky HEALTH would in fact help the state furnish medical assistance to its citizens, a central objective of Medicaid," Boasberg wrote. "This signal omission renders his determination arbitrary and capricious."
There may be circumstances in which Health and Human Services Secretary Alex Azar could approve waivers that reduce Medicaid enrollment or coverage without violating the law, Boasberg noted.
"After all, the point of the waivers is to give states flexibility in running their Medicaid programs, and experimental projects may (at least inadvertently) adversely affect healthcare access," he wrote.
Kentucky Threatens Cuts
In a statement realeased by Gov. Matt Bevin's office, Kentucky Cabinet for Health and Family Services Secretary Adam Meier acknowledged the ruling as a setback, but he suggested the problem could be fixed with some additional review by the Centers for Medicare & Medicaid Services. The court concluded that HHS had "simply failed to consider the impact of Kentucky HEALTH on Medicaid coverage," Meier said.
"While we disagree with the Court's ruling, which delays implementation of Kentucky HEALTH, we look forward to working with CMS to quickly resolve the single issue raised by the Court so that we can move forward with Kentucky HEALTH," Meier's statement continued. "Without prompt implementation of Kentucky HEALTH, we will have no choice but to make significant benefit reductions."
The threat of cuts reiterates a message Bevin himself made in an executive order in January, when he threatened to end Medicaid expansion if "one or more components" of Kentucky's waiver request were blocked.
CMS Administrator Seema Verma expressed disappointment in Friday's decision without committing to a particular course of action.
"States are the laboratories of democracy and numerous administrations have looked to them to develop and test reforms that have advanced the objectives of the Medicaid program. The Trump Administration is no different," Verma said in a statement. "We are conferring with the Department of Justice to chart a path forward. In the meantime, we will continue to support innovative, state-driven policies that are designed to advance the objectives of the Medicaid program by improving health outcomes for thousands of low-income Americans."
Despite Kentucky's suggestions that the problem with its waiver approval can be resolved promptly, critics contend the plan isn't salvageable.
"From our perspective, you can dress up this program any way you want to, but it's still rancid because the underlying impact of the waiver is to drive people off of coverage," Eric Carlson, directing attorney with Justice in Aging, which contributed to an amicus brief, tells HealthLeaders Media.
"The state and CMS can do a better job to dress up their proposal a little bit more and consider various factors," Carlson added. "But from our perspecitve, if it's the same type of program, it's inconsistent with the objectives of the Medicaid program."
A Possible Blueprint
Although the decision does not directly affect waivers approved or pending for other states, it could provide a blueprint for other successful legal challenges, say Phillip Escoriaza, an attorney with the firm Feldesman Tucker Leifer Fidell LLP in Washington, D.C.
"You can extrapolate some lessons from what has just happened," Escoriaza tells HealthLeaders Media. "The court in [this] case was very generous in terms of explaining quite a few shortfalls in the process that led to the approval of Kentucky HEALTH that was challenged in this case. And I'll tell you: Other states that have or are planning on doing things similar to work requirements or community engagement requirements ... they really have to look at this decision."
Escoriaza, who helped prepare an amicus brief arguing that the approval of Kentucky HEALTH's waiver was illegal, said the matter primarily affects adult beneficiaries in Kentucky who are able-bodied, not elderly, and who became Medicaid-eligible in 2014 under the Affordable Care Act.
In a joint statement by the National Health Law Program (NHELP), the Kentucky Equal Justice Center (KEJC), and the Southern Poverty Law Center (SPLC)—which represent the 16 plaintiffs who challenged the waiver's approval—NHELP Legal Director Jane Perkins called the decision "a victory" for the program, its beneficiaries, and the rule of law.
"The Trump administration’s attempt to transform the Medicaid program through executive action has been restrained," Perkins said. "The purpose of the Medicaid Act is to furnish medical assistance, and this approval could not stand because it was doing just the opposite—restricting coverage."
NHELP Senior Attorney Catherine McKee noted that the plaintiffs expect Bevin and the Trump administration to appeal.
Along Ideological Lines
Immediate reactions to the decision largely fell along ideological lines, with liberals praising the decision and conservatives expressing disapproval:
"Justice served in federal court today as a judge tosses out Kentucky's harmful new Medicaid barriers. By law changes are supposed to strengthen coverage & improve health, but Kentucky's were designed to trip people up and kick people off. A ruling to save lives," tweeted Jason Bailey, executive director of the Kentucky Center for Economic Policy.
"An important moment, a relief, a victory for law over lawlessness and brazen bad faith," tweeted Eliot Fishman, senior director of health policy at FamiliesUSA.
"Obama-appointed judge blocks Medicaid work requirements in Kentucky. Today’s decision attempts to substitute the court’s judgment for that of the agency, ignoring record and evidence clearly showing work requirements would likely further the objectives of the program,"tweeted Jonathan Ingram, vice president of research for the Foundation for Government Accountability.
The Kentucky Democratic Party tweeted its approval: "Reason has prevailed once again against the Bevin and the Republican majority's agenda."
Democratic Party chairman Ben Self added, "Bevin's work requirements for Medicaid recipients was not only immoral but goes against who our leaders should stand up for and who we are as Kentuckians.
The 60-page opinion is included below:
HealthLeaders Media associate editor Jack O'Brien contributed to this report.