Publisher's note: The author of this post is Dan Way, who is an associate editor for the Carolina Journal, John Hood Publisher.
GOP lawmakers, former Perdue health chief Cansler say Washington could not review and approve plan fully before Obama leaves office
State Rep. Nelson Dollar, R-Wake, is confident President-elect Trump would overturn any unlawful agreement to fast-track the state's Medicaid program.
It would be unprecedented for Sylvia Burwell to work with Cooper to approve the expansion before President Obama leaves office Jan. 20, said Dollar and Lanier Cansler, former secretary of the state Department of Health and Human Services.
"We will process the governor's proposal as expeditiously as possible when we get it," U.S. Health and Human Services Secretary Burwell said Monday at Washington's National Press Club.
Cooper has said the Medicaid expansion could provide coverage to as many as 650,000 uninsured North Carolinians at a cost of about $6 billion over 10 years.
Republicans reacted swiftly.
"It is clear Gov. Roy Cooper and President Obama have conspired for months on a plan to break both state and federal law," said Amy Auth, spokeswoman for Senate Leader Phil Berger, R-Rockingham.
"State legislative and congressional leaders have clearly outlined why Cooper's proposal is illegal, and expect [the federal Centers for Medicare and Medicaid Services] to make the right decision in accordance with the law. That's the definition of a coup right there as opposed to following what the clear law is in statute," said Dollar, chief budget writer in the state House of Representatives.
- "Neither the governor nor anyone in any agency in state government has any authority to pursue Medicaid expansion without the express permission of the General Assembly, which is obviously not there."
Even if CMS approved a Medicaid expansion plan from the Cooper administration, "as soon as the Trump administration is sworn in, they will have 90 days to do a look-back" at actions from Obama and accept, modify, or rescind them, Dollar said.
- "There is no question in my mind that they would invalidate this state plan amendment. It's a fool's errand that the Cooper administration is on."
The U.S. Supreme Court ruling in National Federation of Independent Businesses v. Sebelius clearing the way for implementation of Obamacare also constructed specific barriers to forcing states to expand Medicaid, Dollar said.
That ruling barred the federal government from working with one branch of a state government to expand Medicaid, Dollar said, so Cooper could not negotiate a plan on behalf of North Carolina unilaterally.
"To the extent it would cost us money, whatever that amount might be, they certainly couldn't force us to do that" by demanding a legislative allocation of state tax dollars, he said.
Cooper said he would consider meeting the 5 percent state match for federal funding of Medicaid expansion by asking hospitals to voluntarily assess an occupied bed tax. He got a
frosty reception.
That mechanism
"would require a change in state statute, which the General Assembly would not be obligated to pursue," Dollar said.
For Cooper's plan to be approved, CMS would have to waive every rule it has imposed on states for years to obtain federal permission to expand Medicaid or make other changes to a state Medicaid program.
That would include omitting public comment periods and hearings, and the painstaking, back-and-forth deliberations that normally occur.
"If this is approved at the federal level, it would significantly undermine the credibility of CMS and the Department of Health and Human Services," Dollar said.
"To get it approved in the time frame that they have before the inauguration of Donald Trump will be precedent-setting, because I don't know of anything that's been approved that quickly before," said Cansler, DHHS secretary under Democratic former Gov. Bev Perdue from 2009 to early 2012.
"I can't remember any time that I've been involved that an amendment was turned around in less than six months," while some took three and almost four years, Cansler said.
"I think the department probably had developed something that was put on the shelf when they decided not to do the expansion initially" during Perdue's term in office.
"My guess would be that it's going to be something similar in line to the way the program operates right now," Cansler said.
"So, basically, you're just adding more individuals to the coverage, and they get the same coverage they would get under the existing program.
"I don't know of any time we've sent anything up [to CMS] that was not permitted by the legislature, or approved or directed by the legislature. The legislature has basically controlled through legislation who's eligible for Medicaid, what are the basic optional services that are offered to Medicaid, and sometimes how the rates are set for Medicaid providers," he said.
Aside from a direct appropriation from the General Assembly, or the bed tax, which would apply to all occupied beds in a hospital, not just those used by Medicaid patients, the only other way to raise the state matching share would probably would be adjusting rates paid to providers of Medicaid services, Cansler said. CMS applies heightened scrutiny to reducing provider pay.
