News: CJ Exclusives

Feds join Berger, Moore in asking for halt in Medicaid lawsuit

U.S. HHS backs Berger and Moore in motion convincing judge to halt Medicaid expansion actions for at least 60 days

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 Cooper administration may have lost a key ally in its attempt to expand Medicaid under the Affordable Care Act: the U.S. Department of Health and Human Services, the Cabinet agency that controls Medicaid.

HHS officials joined Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, in a motion in the federal lawsuit trying to block Gov. Roy Cooper’s unilateral efforts to expand enrollment in the government health insurance program primarily serving the poor, aged, and disabled.

Outgoing Obama administration HHS Secretary Sylvia Burwell was named as a defendant along with Dempsey Benton, the state’s interim secretary of the state Department of Health and Human Services, in the original court filing.

Now, the federal government may have changed sides.

U.S. District Court Judge Louise Flanagan signed an order Friday granting the request by the plaintiffs and HHS in the form of a 60-day halt of further litigation. The dispute had been scheduled for a hearing Friday morning before Flanagan.

Berger, Moore, and HHS asked the court for the stay Wednesday “to allow time for incoming officials in the new administration to evaluate the issues in this case.”

Both the plaintiffs and state Department of Health and Human Services officials noted the Trump administration might decide to reject Cooper’s request.

Because President Trump’s incoming administration has 60 days to review, approve, alter, or reject any new or proposed federal agency rules and regulations, some lawmakers and Medicaid experts believe Cooper’s proposal is doomed.

That’s due, in large part, to Trump’s opposition to Obamacare, under which Medicaid expansion occurs. Rep. Tom Price, R-Ga., Trump’s nominee for Health and Human Services secretary, opposes Medicaid expansion, and Trump and the Republican-controlled Congress have begun the process of repealing Obamacare.

Flanagan issued a temporary restraining order Jan. 14 blocking Cooper’s attempt to expand Medicaid enrollment without legislative approval.

Flanagan canceled the Friday hearing and said that a 60-day stay would be in effect while the court “is positioned to decide the matter on the parties’ written submissions.” State defendants were required by the judge to file their position on the ruling today.

At the end of the 60-day stay, a joint notice from both sides in the dispute must be filed, “alerting the court whether a live dispute remains in this case.” The parties have a March 31 deadline to file a response “as to what disputes, if any, remain,” Flanagan’s order states.

State DHHS officials filed a motion Wednesday opposing the preliminary injunction, citing a variety of constitutional claims. Those included an argument that Medicaid expansion is a matter to be decided at the state level and that Berger and Moore cannot sue on behalf of the General Assembly.

“No amount of artful pleading can disguise that their claim arises under state law, nor can they conceal that this ‘intramural dispute’ between state officials … has no business in federal court,” they said in their brief.

In their filing DHHS officials noted that the case is not “ripe” for federal action because the Centers for Medicare and Medicaid Services, to which Cooper’s expansion proposal was submitted, “might decline to approve” the request. They also said “a dramatic change of circumstances has occurred … with the inauguration of a new president and the appointment of a new acting secretary” at HHS in Washington.

Editor’s note: The initial version of this story said Flanagan issued the 60-day order Thursday. She did not sign the order until Friday.