Amendment viewed as threat to Medicaid expansion may be pulled from bill

Rep. Kim Moser, R-Taylor Mill | Photo via LRC Public Information

State Rep. Kim Moser stated in a tweet Thursday evening that she would pull her floor amendment filed to a bill this week that health care advocates say would allow the Bevin administration to follow through on its threat to end the Medicaid expansion that covers 450,000 Kentuckians.

While suggesting on Twitter that she was “surprised” that her own amendment requested by the Bevin administration could do so, she later defended the intent of the amendment to Insider Louisville and left open the possibility that she would not actually withdraw the amendment.

Groups like the Kentucky Equal Justice Center and Kentucky Voice for Health sounded the alarm earlier on Thursday when they discovered the language in the last-minute House floor amendment, which was attached on Wednesday to an uncontroversial bill that passed the Senate with a unanimous vote last month.

On Friday, such concerns about the amendment were shared by the Kentucky Hospital Association and Norton Healthcare, which worried about unintended consequences that could jeopardize the ability of hospitals to take advantage of federal funding.

The amendment would change a state statute to no longer require the governor’s administration to “take advantage of all federal funds that may be available for medical assistance,” instead providing discretion to the secretary of the Cabinet for Health and Family Services (CHFS) to decline funds after considering the impact of federal requirements for the state to require matching funds or other budgetary considerations.

Noting that CHFS Sec. Adam Meier and Gov. Matt Bevin have both stated that they will end Medicaid expansion in Kentucky if the lawsuit challenging the administration’s federal Medicaid waiver is ultimately successful, Ben Carter of the Kentucky Equal Justice Center — one of the groups representing the plaintiffs in that case — stated that this statutory change proposed in the amendment would make it easier for the governor “to make good on his dangerous promise to take away health coverage from almost half a million Kentuckians.”

“Until now, Governor Bevin has been waving an unloaded gun when threatening to end Medicaid expansion,” stated Carter. “With this bill, the Kentucky lawmakers would give him a bullet.”

Initially unaware of the specific content in Moser’s amendment, Sen. Julie Raque Adams, R-Louisville, the sponsor of Senate Bill 167 that it was attached to, immediately told Insider Louisville: “I just told the cabinet that they should put it somewhere else. I don’t like last-minute surprises.”

That sentiment appeared to be shared by Moser later that night, replying to a tweet by Insider about Adams’ displeasure with the amendment by stating “I am with (Adams) and am pulling the amendment. I too will not tolerate surprises.”

Sen. Julie Raque Adams, R-Louisville | Photo courtesy LRC Public Information

Asked how this surprise occurred and who suggested the amendment, Adams told Insider Thursday night that the cabinet sent Moser the amendment for her consideration, adding that “it’s really hard near the end of the session to catch every nuance, but I believe Rep. Moser was under the impression that this allowed more flexibility between federal and state drawdowns and matches.” Adams added that she believed that Moser was attempting to gather more information and specifics from the cabinet that night.

Moser then stated in a text message that the intention of the amendment was not to dismantle any program, but left open the possibility that she would not actually withdraw the amendment.

“The intention was to keep the cabinet from being tied to federal strings where it doesn’t benefit the state, not to dismantle anything,” stated Moser. “I’m looking for clarity, but am absolutely reserving the right to withdraw. If it doesn’t have the support it needs, it won’t be called anyway.”

Moser added that she would not be able to pull the amendment until Tuesday, which is the next day that the House gavels into session.

A few hours later, Moser texted a long statement defending the purpose of the amendment, as she had “many conversations with folks in the cabinet in the last few days” and Sec. Meier “explained that was merely meant to clarify statue as to legislative intent.”

She added that strict interpretation of current law could force officials into making decisions that would hurt the state’s budget.

“Current language could be strictly interpreted to require (Kentucky) to pursue all federal funds, without regard to matching funds, effort and other costly considerations,” stated Moser. “In other words, it could be interpreted to require that the Cabinet pursue $1 federal dollar even if it means it takes $99 state dollars to get it. The result would be damaging to the Medicaid budget, potentially harmful to recipients and is certainly not in line with legislative intent.”

While Moser used the example of the state accepting $1 and paying $99, Medicaid and the expansion of Medicaid work in the opposite direction. Whereas Kentucky pays 30 percent and the federal government pays 70 percent for the care of recipients on traditional Medicaid, the federal government currently picks up over 90 percent of the tab for the expanded Medicaid population whose income is up to 138 percent of the poverty line.

Moser also stated that the amendment “is merely a safeguard from any legal or other challenges that would assert that we are not pursuing all federal funds, even when it would not be feasible to do so.”

“After speaking again with Sec. Meier, I agree that this is not the narrow context that advocates fear is an end to the Medicaid expansion program, however there is clearly a need for tighter language,” stated Moser. “(Although) the cabinet has some discretion, the legislative intent should be clear to avoid unnecessary expense to the state and interruptions to beneficiaries.”

Friday morning, the cabinet emailed a statement from Jim Musser, its legislative and regulatory affairs director, which closely resembled the arguments and language used by Moser to defend the intent and effect of the amendment in question.

“The confusion seems to be the result of a misinterpretation by some advocate and provider groups that this language applies only to Medicaid expansion funding,” stated Musser. “This requested change is not narrowly focused, as the advocates claim, and does not give any new power or authority; rather, it is meant to clarify existing statute to more clearly reflect legislative intent and to mitigate the chances of frivolous lawsuits against the cabinet.”

Musser added that the current statutory language “could be strictly interpreted as requiring the Cabinet to pursue all federal funds” without federal requirements and budgetary considerations, but the language in their proposed amendment “directly incorporates reasonable discretion to reflect such intent.”

In response to the cabinet’s statement, Carter of the Kentucky Equal Justice Center noted that the next hearing in the lawsuit challenging the Trump administration’s approval of Bevin’s Medicaid waiver program is next Thursday, with the judge expected to make a decision by the end of the month.

“The House Floor Amendment would clear a path for Governor Bevin to end Medicaid expansion if he loses again in court,” said Carter.

Rep. Joni Jenkins, D-44 | Photo via LRC Public Information

Rep. Joni Jenkins, D-Louisville, told Insider on Friday that the House Democratic Caucus remains “very, very concerned” about the language in Moser’s amendment and the possibility that it may not only remain in the bill but be passed into law without being fully vetted by legislators.

“When you get to this time of year and you have policy changes that have not been vetted through committee, it’s just very dangerous to let those things slide into statute,” said Jenkins. “We are communicating with our members and others to highlight this.”

Jenkins added that Democrats “stand fully supportive of Kentuckians having access to health care through all means, including traditional and expanded Medicaid.”

Nancy Galvani, senior vice president of the Kentucky Hospital Association, told Insider Louisville on Friday that while her organization does not have an official position on Moser’s amendment, they do have concerns about its broad wording and the possible unintended negative consequences it could have for hospitals.

“We do have concerns with some of the language in there, particularly language that appeared to permit the cabinet to disregard other laws that require the cabinet to draw down federal funds,” said Galvani. “While it could be read to (affect) Medicaid expansion – which, of course, we support – I think our broader concern was that it appeared to allow laws that require federal funds to maybe not be implemented,” including disproportionate share funds.

Galvani added that St. Elizabeth Hospital in Moser’s district has expressed those concerns to her.

A spokeswoman for Norton Healthcare told Insider on Friday that “as a member of the Kentucky Hospital Association, we support their position on this issue” regarding the amendment.

Senate Bill 167 and Moser’s amendment could be taken up by the House when the session resumes on Tuesday — unless Moser withdraws it — with just four legislative days remaining in this year’s legislative session. If the bill passes the House with that amendment, it would be sent back to the Senate for another vote.