States that decline to participate in the coming vast expansion of Medicaid after the Supreme Court upheld the Affordable Care Act (ACA) have a Vanderbilt Law School professor to thank for the option.
An amicus brief filed by James F. Blumstein, University Professor of Constitutional Law and Health Law and Policy, provided the legal argument relied on by Chief Justice John Roberts in his decision that the ACA’s Medicaid mandate on states was unenforceable.
Under the ACA, states were obliged to expand coverage for all those with incomes under 133 percent of poverty. This represented a substantial increase in coverage and a decrease in the flexibility that states had traditionally enjoyed regarding setting eligibility criteria for Medicaid. If states did not accept the mandated expansion of coverage eligibility, they would no longer be eligible for Medicaid matching funding.
At the national meeting of the National Council of State Legislatures held in Louisville, Ky., in the summer of 2010, Blumstein set out his concerns about the excessive leveraging that the ACA was using to force the states to take on the new coverage mandated by the ACA. Even though the federal matching under the ACA (90 percent) is very generous, the decision whether to accept the ACA’s new conditions was not really left to the states.
“The Supreme Court had previously held that the relationship between the states and federal government under Medicaid was analogous to a contract,” Blumstein said. “Then the federal government decided to change the deal in mid-stream, linking states’ acceptance of the new terms to states’ eligibility to receive federal support for the Medicaid programs they had long had in place.
“This looked like excessive or predatory leveraging to me,” Blumstein said.
Blumstein helped persuade the lawyers for the state of Florida to make the Medicaid challenge part of their litigation and to keep the issue alive through appeals, including to the Supreme Court. He spoke at Harvard Law School on the issue and at the American Enterprise Institute, as well as at five other law schools, the Council of State Governments and the annual meeting of state attorneys who represented Medicaid agencies. With Glenn Cohen of the Harvard Law School, he highlighted the Medicaid issue in an article in The New England Journal of Medicine. And he filed the amicus brief in the Court of Appeals for the 11th Circuit and then in the Supreme Court.
As a result of the Supreme Court’s decision, states may opt in to Medicaid but they can decline to opt in without placing their preexisting Medicaid programs in jeopardy.