Does Alaska law already authorize Gov. Bill Walker to implement the Medicaid expansion? Sen. John Coghill's commentary raises that important question, but the answer to is "yes," not "no."
I am writing a response because several years ago, I helped write an amicus brief before the U.S. Supreme Court explaining that Medicaid expansion was constitutional.
Sen. Coghill's July 31 Alaska Dispatch News commentary depends on a rather technical legal argument, and so I apologize in advance for making a rather technical legal response. There are many reasons why the Medicaid expansion is a good idea for Alaskans, but the senator's complaint is about a possible conflict with state Medicaid statutes, and that is what I need to address.
The complaint suggests that Medicaid expansion is an option for states, and Alaska Medicaid statutes do not allow for options unless the Legislature explicitly accepts those options in state statutes.
The response is under federal law, Medicaid expansion is mandatory on states, not optional, and so the governor may expand Medicaid without the Legislature's adding it to the list of state Medicaid options.
There should be no dispute that our state Medicaid statutes distinguish between mandatory "required" federal Medicaid eligibility categories and optional federal Medicaid eligibility categories. The state statute that directs us to accept all mandatory federal Medicaid eligibility categories is AS 47.07.020(a). This statute reads:
(a) All residents of the state for whom the Social Security Act requires Medicaid coverage are eligible to receive medical assistance under 42 U.S.C. 1396 - 1396p (Title XIX, Social Security Act).
The Social Security Act's Medicaid title, Title XIX, is not the easiest statute to understand, but one place where it distinguishes between mandatory Medicaid eligibility categories and optional Medicaid eligibility categories is in section 1902(a)(10)(A) of the Social Security Act. Categories set out in subsection (i) of that section are mandatory. Categories set out in subsection (ii) are optional.
The Medicaid expansion is set out in section 1902(a)(10)(A)(i)(VIII) of the Social Security Act. That's subsection (i), not subsection (ii). The Medicaid expansion is mandatory, not optional.
Therefore, the Social Security Act requires Medicaid coverage for the people who will be eligible under the expansion, and state statutes already accept those people into Medicaid. Walker does not need to go back to the Legislature to get additional authorization.
What about the Supreme Court -- and, more specifically, what about Sen. Coghill's claim the Supreme Court's decision in National Federation of Independent Business v. Sibelius has converted the people who would be helped by the expansion into "an 'optional 138-percent group' or 'optional expansion group'"?
Take a look at what the Supreme Court actually said, and didn't say. The court's NFIB decision did not say Medicaid expansion is not a mandatory Medicaid eligibility category, or that its own decision was converting Medicaid expansion into an optional Medicaid eligibility category. It did not move section 1902(a)(10)(A)(i)(VIII) from subsection (i) to subsection (ii). Contrary to Sen. Coghill's interpretation (and quotation marks), it did not refer to the expansion population as an "optional 138-percent group" or "optional expansion group."
Instead, the Supreme Court said that under a different Medicaid statute than section 1902(a)(A)(i)(VIII) of the Social Security Act, it would be unconstitutional for the U.S. Department of Health and Human Services to strip all federal Medicaid funding from a state's existing Medicaid program because the state refused to implement the expansion.
The federal "requirement" that state Medicaid programs accept expansion along with other mandatory Medicaid eligibility categories continues to be in effect. It's a requirement the Supreme Court says the federal government cannot enforce against the states, but states can choose to accept. Alaska has already chosen to accept all mandatory Medicaid requirements in a state Medicaid statute that has been in effect since the 1970s. Walker does not need to go back to the Legislature to get additional authorization because of the Supreme Court's decision either.
Mark Regan is legal director for the Disability Law Center of Alaska.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.