As Medicaid Expansion Looms, Remember the Alamo

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“Remember the Alamo” is a mantra all Texans know well. Others should learn it and embrace it.

More than a historic phrase, those words have come to serve as a reminder and symbol of the sacred American duty to fight relentlessly, at all costs, for what is right. Texans do not cower in the face of what might seem to others to be overwhelming odds, because that type of fear is simply not a part of their heritage.

Today, Texas finds itself under attack again. This time the threat comes not from a force led by General Santa Anna, but rather from the U.S. Department of Health and Human Services, and the victims aren’t towering figures such as Davy Crockett, but rather the elderly, low-income children, and people with disabilities.

In 2020, to better address significant challenges associated with certain hospital care costs, Texas submitted to the Centers for Medicare and Medicaid Services (CMS) an application to amend and extend its Medicaid Section 1115(a) demonstration waiver titled the “Texas Healthcare Transformation and Quality Improvement Program” (THTQIP). In a nutshell, this program is a solution developed by Texas to address this great challenge in a way that makes sense to Texas. 

This past December, CMS informed Texas that its application was complete, and that CMS was approving the state’s request for an exemption from the public notice and comment requirements, citing the reasoning carefully laid out by the state of Texas in addition to its own arguments. Then, on January 15, 2021, CMS approved the State’s request, extending the Texas plan through September 30, 2030.

But, on April 16, 2021, everything changed. With the Biden administration now in power, CMS, suddenly reversed course, issuing a letter to Texas rescinding the approval it had granted just three months earlier. In rescinding its approval CMS claimed that it had “materially erred in granting Texas’s request.” The true reason for the sudden reversal: An attempt to strong-arm Texas into accepting Medicaid Expansion.

This sudden vindictive move on the part of the current administration jeopardizes the health and wellbeing of those who truly need Medicaid.

Expanding Medicaid is a bad idea for many reasons that supporters never mention. For starters, the supposed financial windfall that is promised is only a fraction of what is actually needed and will run out after just two years, leaving Texas taxpayers to foot the bill. Even more troubling, is the permanency of expansion. Once a state expands it can never un-expand due to federal law. This means Texas is on the hook to pay for the expansion, forever.

Texas lawmakers responded to this federal strongarm tactic in true Texan form: by rejecting a proposal to saddle the state with immense future debt by expanding Medicaid coverage beyond those who truly need it.

Now, with the Biden administration in control of CMS, and with the sudden CMS reversal of its earlier decision to approve Texas’s Medicaid plan, the state is left with three options.

First, Texas can go through the trouble of resubmitting the same application as before, only this time to a Biden-controlled CMS. Given this unprecedented reversal in course, and the new administration, the likelihood of Texas prevailing after this arduous process is undeniably low.

Second, Texas could abandon its attempt to secure a waiver, a move that would have disastrous economic and health consequences for state residents.

Neither of these options would serve the interests of Texans, which leaves the third option.

Texas can fight this. Texas can bring this matter to court under the Administrative Procedure Act (APA) or other authority and demand that the federal government be compelled to adhere to its earlier decision given the “arbitrary and capricious” nature of this sudden reversal.

To date, only 13 states have managed to stand their ground in the face of immense federal pressure to expand Medicaid. Not surprising given its resume, one of the most steadfast states has been Texas.

Given its history and its current leadership, there is little doubt which course of action Texas will choose. The open letter sent by the Texas Congressional Delegation to the U.S. Department of Health and Human Services asking that CMS reverse its waiver rescission is a welcome sign, but it is only the first step. Remember the Alamo and get ready for a fight.

Stewart Whitson is a Legal Affairs Fellow at The Foundation for Government Accountability.

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