News: CJ Exclusives

Berger, Moore send letter to feds in response to Cooper’s Medicaid plans

House Speaker Tim Moore, at left, and Senate leader Phil Berger. (CJ file photo)
House Speaker Tim Moore, at left, and Senate leader Phil Berger. (CJ file photo)

The leaders of the General Assembly have sent a letter to the federal Centers for Medicare and Medicaid Services opposing the governor’s plan to expand Medicaid.

Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, sent the letter in response to Democratic Gov. Roy Cooper’s proposal to amend North Carolina’s Medicaid program by expanding enrollment to mostly able-bodied, single adults of working age.

“We are disappointed by this news, as such action is clearly prohibited under state law, and encourage CMS to decline the Governor’s illegal request for expansion,” Berger and Moore wrote in the letter, sent today to CMS Acting Administrator Andrew M. Slavitt, and copied to all 13 members of the state’s congressional delegation.

“Clearly, Governor Cooper does not have the legal authority to submit this State Plan Amendment to expand Medicaid. Additionally, the most recent estimate shows Medicaid expansion would require a state commitment of roughly $600 million each year, which would represent a significant increase to the Medicaid budget,” the letter stated.

“Even if the governor had the authority to submit the amendment, such a decision should not be made unilaterally without the consultation of the legislature,” the legislative leaders wrote. “For these reasons, and since Governor Cooper has unfortunately chosen to defy the law, we respectfully request CMS reject this amendment.”

Cooper said he plans to file his Medicaid expansion request Friday. He and his lawyers have sent signals they might be willing to wage a constitutional, separation-of-powers battle on the issue.

“I do believe that it invades on the core executive authority of the governor to accept federal funds, to look out for the public health of the people,” Cooper said Wednesday at the 15th annual Economic Forecast Forum sponsored by the North Carolina Chamber and the North Carolina Bankers Association.

“We believe we can” act unilaterally to seek federal approval to expand Medicaid enrollment despite state law, and state and federal constitutional provisions that bar such an approach, Cooper said.

“We would like to have the legislature to help us because it’s important to have their input in the process. I would hope they would not try to stop us,” Cooper said. The required 5 percent funding match for the 95 percent federal Medicaid expansion share could come from a voluntary self-assessment on hospitals, or through a state appropriation, Cooper said.

“It’s important that we move expeditiously,” Cooper said. “This has been debated back and forth [by legislators] now for several years. So it’s time now to move forward, and someone needs to take action. So I’m going to take action. Then we’ll work it out with them.”

Sen. Ralph Hise, R-Mitchell, chairman of the Joint Legislative Oversight Committee on Medicaid and N.C. Health Choice, has sternly criticized Cooper’s plan, and speculated on a possible rationale for the governor’s methods.

“I think he’s simply taking action that he can ignore the laws of the state, and maybe looking for us to try to file a lawsuit or an injunction to justify” his approach to working with an opposition Republican-controlled General Assembly, Hise said.

In their letter to CMS outlining reasons Cooper’s action is illegal, Berger and Moore cited a number of legislative and constitutional barriers.

They said a state law passed in 2013 says, “The State will not expand the State’s Medicaid eligibility under the Medicaid expansion provided in the Affordable Care Act … for which the enforcement was ruled unconstitutional by the U.S Supreme Court in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services.”

Expansion of the state’s Medicaid program is barred by any entity “unless directed to do so by the General Assembly,” the law states.

Another law passed in 2015 states, “The General Assembly shall determine the eligibility categories and income thresholds for the Medicaid and N.C. Health Choice programs.”

Berger and Moore said a law passed in 2016 grants authority to the state Department of Health and Human Services to administer the state’s Medicaid program “except for eligibility categories and income thresholds of the Medicaid and N.C. Health Choice programs within the appropriated and allocated budget.” DHHS cannot exceed its authorized Medicaid budget under this law.

Berger and Moore further said the state constitution “expressly reserves all taxing authority and appropriations responsibility for the General Assembly.” No law can be passed to raise revenue unless it passes three readings in both legislative chambers, and both chambers approve it. The constitution further prohibits using any state revenue unless appropriated by law.

Dan E. Way (@danway_carolina) is an associate editor of Carolina Journal.