Stuart Gerson Quoted in Article, “States Eye Leveraging Health Reform Ruling to Cut Medicaid Eligibility”

American Medical News

Stuart Gerson, a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the Washington, DC, office, was quoted in an article titled "States Eye Leveraging Health Reform Ruling to Cut Medicaid Eligibility," by Jennifer Lubell.

Following is an excerpt:

For Maine, the U.S. Supreme Court's June 28 decision that states can't be penalized for opting out of the Affordable Care Act's Medicaid expansion also means that the state no longer has to go through a waiver process to tighten its current Medicaid eligibility standards.

Maine's governor and the state's attorney general are challenging the validity of the "maintenance-of-effort" requirements, first established under the most recent federal stimulus law and later extended under the health system reform law. Under the requirements, states must maintain certain eligibility levels for all existing adult Medicaid beneficiaries until 2014, and for all children in Medicaid and the Children's Health Insurance Program until 2019. ?...

Many governors and state legislatures are looking at the Medicaid provisions very carefully following the high court's decision, said Stuart Gerson, senior litigating partner at Epstein Becker Green in Washington and New York and former acting U.S. attorney general. "They have real economic problems," and Maine in particular is a poor state without many resources, he said.

Assuming the eligibility requirements established by the stimulus and health reform laws suddenly are invalid, however, may be stretching the court's opinion too far, Gerson said. Maine officials "are trying to reason that [congressional] tax power can't be used in a punitive way. The only thing that was discussed in the opinion was the concept that the federal government couldn't cut off federal money entirely if the state declined to participate in the expansion. It didn't say anything else piecemeal." ?...

Many states have long viewed the eligibility requirements as a barrier to controlling their program costs and making budgetary decisions. Governors of 32 states made their concerns known in a January 2011 letter to President Obama, Sebelius, and House and Senate leaders, asking for flexibility and relief from the mandate.

But many want to see the provisions remain intact. The American Medical Association at its 2011 Interim Meeting approved a policy that opposes any efforts to repeal these eligibility requirements in the reform law and the stimulus act.

States are using some strong language about the high court's ruling right now but may ultimately be looking for more modest concessions, Gerson said. He predicted that virtually all states eventually will opt into the Medicaid expansion, but that this will take some time as states and the federal government engage in negotiations on how exactly both sides will proceed.