State Republican legislative leaders have agreed - for now - to withdraw their request for a preliminary injunction that has halted Gov. Roy Cooper's request to expand North Carolina's Medicaid program.
The motion was filed Monday by Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. They are the plaintiffs in the lawsuit.
The legislative leaders said they made their motion "because state defendants have not yet submitted a state plan amendment to federal defendants, and because plaintiffs are continuing their efforts to secure a resolution of this matter with federal defendants."
The lawsuit is an attempt to prevent Cooper from submitting an amendment request to the federal Centers for Medicare and Medicaid Services that would affect a state Medicaid waiver request submitted June 1 by the McCrory administration.
The motion was filed without prejudice, which means it can refiled.
Berger and Moore claim that Cooper, a Democrat, is trying to defy a 2013 state law that governs Medicaid expansion. The law prohibits the executive branch from making any expansion attempt without the General Assembly's approval. The law, signed into effect by then-Gov. Pat McCrory, a Republican, is being challenged by Cooper.
"We are prepared to take swift legal action if (the governor) makes this unlawful move," Berger spokeswoman Amy Auth said Tuesday. She said the withdrawal does not signal that Cooper's proposal can go forward unchallenged.
The state's response to the litigation was filed April 19 on behalf of state Health Secretary Mandy Cohen.
On Jan. 13, Berger and Moore sued both the federal and state departments of health and human services. At that time, the federal DHHS was under the Democratic Obama administration.
The legislative leaders included a request for a temporary restraining order.
On Jan. 27, a 60-day block on Cooper's request was approved. A federal judge extended the response time to mid-April.
On April 7, acting U.S. Assistant Attorney General Chad Readler filed the federal response, asking that Berger and Moore's lawsuit be dismissed.
Readler's motion wrote that "a federal court cannot enjoin an executive agency from considering an unsubmitted proposal on the grounds that the agency would be required to reject the proposal if it were ever submitted."
"Yet, that is precisely what plaintiffs have asked this court to do. There are many deficiencies in plaintiffs' case, but that is the fundamental flaw."
"Rather than allowing the Secretary of Health and Human Services to evaluate a proposed Medicaid state plan amendment once it is submitted, plaintiffs would have this court preemptively declare its view," Readler wrote. "Plaintiffs lack standing to bring this premature case ... and their complaint (must be) dismissed for lack of standing and failure to state a claim on which relief can be granted."
Supporters cite studies
Supporters of expanding Medicaid coverage in North Carolina, as well as several academic studies, have determined that it could benefit more than 500,000 North Carolinians - potentially raising total Medicaid recipients to 2.4 million.
The goal would be having Medicaid expansion in effect by Jan. 1.
When Berger and Moore filed their lawsuit, they referred to the state Medicaid program as a "welfare entitlement program" and Cooper's request as "an expansion ploy."
The state DHHS officials' motion piggybacks significantly on the federal DHHS response, saying "the General Assembly has not authorized them to bring suits challenging federal action, and any injuries they purportedly suffer as individual legislators are not cognizable."
Both defendants said the legislators lack standing because they are not facing "actual or imminent" harm from Cooper's motion.
State DHHS officials cited the introduction of bipartisan-sponsored House Bill 662 on April 6 as evidence that Berger and Moore don't speak for the entire legislature.
HB662 requires "participant contributions," defined as working "more like an insurance product for those working who can pay a portion of the cost, and the benefits and coverage are built around preventive and wellness care."
For example, participants must follow protocols for routine physicals and screenings to improve their health if they have conditions such as diabetes, overweight, etc.
Participants' contributions would consist of an annual premium, billed monthly, representing 2 percent of their household income.
That element appears to be based on the Healthy Indiana Medicaid expansion plan established by former Gov. Mike Pence, now vice president of the U.S.
Participants must be employed or pursuing a job to qualify, a component that may draw criticism from some expansion supporters.
McCrory's waiver request focused on creating a hybrid oversight solution involving for-profit insurers and not-for-profit health-care systems. It didn't include an expansion of Medicaid in the state.
The N.C. Medical Society and N.C. Hospital Association have signaled their support for Cooper's proposal that would include not-for-profit health-care systems helping to pay the state's 5 percent match of Medicaid expansion administrative costs for 2017, 2018 and 2019.
The hospital association said it is studying HB662.
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