Eventful Week for CMS: Agency Receives Court Pushback on Key Medicaid Priorities, Congressional Scrutiny

This week put the spotlight on the Centers for Medicare and Medicaid Services’ (CMS) work, which ANCOR is flagging for its members because of how these events might shape overall conversations around the future of Medicaid in coming weeks and months.

Federal courts blocked two Administration high priority projects:

•  Judge James Boasberg blocked Arkansas’ and Kansas’ Medicaid work requirement plans, which has the ripple effect of bringing in to question how much waiver authority CMS has in seeking to reform the program. The judge wrote: “The Court cannot concur that the Medicaid Act leaves the [Health and Human Services (HHS)] Secretary so unconstrained, nor that the states are so armed to refashion the program Congress designed in any way they choose.” CMS Administrator Seema Verma has stated that the ruling would not dissuade the agency’s work to approve work requirements in other states. ANCOR has expressed concerns on Medicaid work requirements potentially affecting people with disabilities and the frontline staff who support them.

• Judge John Bates also blocked the Administration’s efforts to enact state association health plans. As shared by Politico Pro: “‘The Final Rule is clearly an end-run around the ACA,’ U.S. District Court Judge John Bates wrote in his opinion. ‘Indeed, as the President directed, and the Secretary of Labor confirmed, the Final Rule was designed to expand access to AHPs in order to avoid the most stringent requirements of the ACA.’” ANCOR has been following this issue because of its potential applicability to our members who are state provider associations.

CMS Administrator Seema Verma is under Congressional scrutiny for her use of media consultants. As shared by Politico: “The communications subcontracts approved by CMS Administrator Seema Verma — routed through a larger federal contract and described to POLITICO by three individuals with firsthand knowledge of the agreements — represent a sharp break from precedent at the agency. Those deals, managed by Verma’s deputies, came in some cases over the objections of CMS staffers, who raised concerns about her push to use federal funds on GOP consultants and to amplify coverage of Verma’s own work. CMS has its own large communications shop, including about two dozen people who handle the press. […]

‘Outsourcing communications work to private contractors puts the agency’s ability to protect ‘potentially market-moving’ information from premature disclosure at considerable risk,’ said Andy Schneider, a Medicaid expert who worked at CMS during the Obama administration and is now a researcher at Georgetown University.”

Administrator Verma’s use of contractors has attracted the attention of U.S. Representative Frank Pallone (D-NJ), Chair of the House Energy and Commerce Committee, who is asking HHS’ Office of the Inspector General (an independent government watchdog) to investigate whether this is an appropriate use of taxpayer dollars.

Congressional reluctance puts the onus of action on HHS after President changes policy on maintaining ACA. The Department of Justice (DOJ) is now saying that the Affordable Care Act (ACA) should be entirely struck down in a lawsuit seeking to overturn the law. Previously, the Administration only sought for a partial curtailment of the law, including provisions that protect people with pre-existing conditions, which includes people with intellectual/developmental disabilities. Due to Congressional reluctance to provide an alternative to the ACA, HHS might find itself having to lead efforts for an alternative proposal – which could consume a lot of its bandwidth because much of existing Medicare and Medicaid policy is shaped assuming the continuation of the ACA, including Administration priorities.

As shared by Politico: “While the GOP leader [Senator Mitch McConnell, R-KY] has endorsed efforts to protect pre-existing conditions, McConnell told his caucus on Wednesday he will stick to a message of asking the administration for a plan and focusing on making Democratic measures unpopular, according to attendees. Soon after, Senate Republicans from across the caucus adopted a similar mantra: Let’s see what the White House proposes.”