Liberals’ “Alternative Facts” on Capping Entitlement Spending

Here’s a policy riddle for you: When is a spending cap not a spending cap? The answer: When a liberal finds it politically inconvenient.

During the confirmation hearing for Health and Human Services Secretary-designee Alex Azar, a staffer for the liberal Center for Budget and Policy Priorities tweeted that Azar supported capping Medicaid. I noted that meant he supported capping Medicaid spending like the caps Democrats enacted as part of Obamacare—and that’s when the fun began.

Then I pointed out that Section 3403 of Obamacare charges the Independent Payment Advisory Board (IPAB) with enforcing a cap on per-beneficiary spending in Medicare. She responded by saying that IPAB contains restrictions on “rationing health care, raising Medicare’s premiums or cost sharing, cutting benefits, or restricting eligibility.”

That response, while accurate, misses the point. First of all, while the law prohibits Medicare from “rationing” benefits, neither Obamacare nor any other law “defines” rationing. Former Health and Human Services secretary Kathleen Sebelius testified to Congress in 2011 that HHS would need to undertake rulemaking to define “rationing.” However, as I noted this summer, “the Obama Administration never even proposed rules ‘protecting’ Medicare beneficiaries from rationing under the IPAB per capita caps—so how meaningful can those protections actually be?”

Capping Spending Does Indeed Reduce It

Second, a cap on spending, by definition, will reduce spending. The implication that one form of cap on spending in Medicare will have no ramifications whatsoever for beneficiaries, while another form of cap on spending in Medicaid will lead to proverbial death and destruction, strains credulity.

But putting those distinctions aside for a second, I asked whether Obamacare capped Medicare spending. I sent links to the portions of Section 3403 that 1) establish a target growth rate for Medicare and 2) instruct IPAB to develop recommendations to reduce spending to meet that target—the definition of a cap in my book, and probably anyone else’s as well.

I asked a simple yes-no question: While they might be implemented in different ways than the caps in Republicans’ “repeal-and-replace” bills, doesn’t IPAB limit the growth rate of Medicare spending to meet a cap?

Answer came there none.

Politically Inconvenient Truths

The political hack—erm, I mean, “analyst”—in question, from the Center for Budget and Policy Priorities, has more than enough health policy experience to recognize a spending cap. According to the center’s website, she served in senior roles in California’s Medicaid program, worked as the primary health staffer for former U.S. senator Al Franken (D-MN), and holds a master’s degree in health policy. She knows better—she just chose not to.

As I have written previously, Democrats don’t want to admit that they imposed per capita spending caps in Medicare as part of Obamacare. They may still fear the political consequences of capping Medicare spending—and more importantly, do not want to give Republicans political “cover” to impose similar caps in Medicaid.

So rather than admit the obvious—yes, Democrats did impose spending caps in Medicare (albeit in a slightly different form than Republicans’ Medicaid proposals last year) as part of Obamacare—this person chose to obfuscate, deflect, deny, and ultimately join Twitter’s version of the Witness Protection Program rather than admit the politically inconvenient truth. And beclowned herself in the process.

After the “repeal-and-replace” process of 2017, I know full well what it means to tell politically inconvenient truths. Going out on a limb to point out flaws in alternatives to Obamacare won me no small amount of flack from others on the Right, and may have cost me business to boot.

But at bottom, I consider myself a conservative health policy analyst, not a Republican one. As such, I feel an obligation to call “balls-and-strikes” based solely on policy, regardless of party. Doing otherwise would harm my reputation and integrity. And in policy circles in this town, one’s good name is the only thing you’ve got.

People can propose “alternative facts” all they like, but not without cost. After our Twitter tete-a-tete, I think less of the analyst in question, and of the Center for Budget and Policy Priorities for employing her. While liberals can talk all they like about a “wonk gap,” or about Republican “science deniers,” they appear to have some in their own midst as well. Just ask liberal health analysts about IPAB’s per capita caps.

This post was originally published at The Federalist.

Liberals Suddenly Rediscover Federalism — Will Conservatives?

On Thursday, a series of liberal groups sent a letter to the nation’s insurance departments, asking them to effectively undermine President Trump’s October executive order on health care. In so doing, the Left suddenly rediscovered the virtues of federalism in setting an independent policy course from Washington, particularly when governed by an executive of the opposite party.

Unfortunately, however, because Congress has yet to repeal Obamacare’s federally imposed regulations—as I noted just yesterday—legislators in conservative states will have little such recourse to seek freedom from Obamacare unless and until Congress takes action.

Liberals Want to Thwart More Affordable Coverage

For instance, the Trump administration likely will revoke an Obama administration rule prohibiting short-term insurance policies—which need not comply with any of Obamacare’s statutory requirements—from offering plans of longer than 90 days in duration. In such a circumstance, the liberal groups want states to “act swiftly if the federal rulemaking allows these plans to last beyond a reasonable ‘short term’”—in other words, reimpose the 90-day limit on short-term plans, currently codified via federal regulations, on the state level.

The liberal groups also asked states to “consider ways to protect against potential harm from” other elements of the executive order, including association health plans (AHPs) and health reimbursement arrangements (HRAs): “If the proposed federal rules are weakened for short-term plans, AHPs, or HRAs, we urge state insurance regulators to take action to protect consumers in your states.”

In this case, as in most cases with liberal groups, “consumer protection” means protecting individuals from becoming consumers—preventing them from buying insurance plans that liberals do not approve of.

One-Way Federalism, In the Wrong Direction

As a supporter of the Tenth Amendment, while I might not agree with state actions designed to prevent the sale of more affordable insurance options, I respect the rights of states to take such measures. Likewise, if Congress repeals Obamacare’s mandate to purchase insurance, and states wish to reimpose such a requirement at the state level, they absolutely should have the ability to do so.

Unfortunately, however, Congress’ failure to repeal Obamacare’s regulations has created a one-way federalism ratchet. Liberal areas can re-impose Obamacare’s regime at the state level, by blocking the sale of more affordable insurance plans, or re-imposing a mandate to purchase insurance. But because Congress has left all of Obamacare’s federally set regulations in place, conservative states cannot de-impose Obamacare at the state level, to allow more affordable coverage that does not meet all of the law’s requirements.

Admittedly, by not thwarting Trump’s regulatory actions, conservative states can allow the sale of more affordable insurance products—for now. However, those executive actions have real limits when compared to statutory changes.

Moreover, another president could—and in the case of a Democratic president, almost certainly would—undo those actions, collapsing what little freedom the executive order might infuse into the market. Regardless, states will remain hostage to actions in Washington to determine control of their health insurance marketplaces.

This dynamic brings no small amount of irony: Liberal groups have suddenly discovered the benefits of federalism to “resist” a Trump administration initiative, even as Republican senators like Louisiana’s Bill Cassidy, by keeping the federally imposed pre-existing condition mandate in place, want to dictate to other states how their insurance markets should function.

At the risk of sounding like an apostate, liberals are on to something—not with respect to their policy recommendations, but to federalism as a means of achieving them. Perhaps one day, the party that purports to believe in the Tenth Amendment will follow suit, by getting rid of Obamacare’s federal regulations once and for all.

This post was originally published at The Federalist.

How Graham-Cassidy’s Funding Formula Gives Washington Unprecedented Power

The past several days have seen competing analyses over the block-grant funding formula proposed in health-care legislation by Sens. Lindsay Graham (R-SC) and Bill Cassidy (R-LA). The bill’s sponsors have one set of spreadsheets showing the potential allocation of funds to states under their plan, the liberal Center on Budget and Policy Priorities has another, and consultants at Avalere (funded in this case by the liberal Center for American Progress) have a third analysis quantifying which states would gain or lose under the bill’s funding formula.

So who’s right? Which states will end up the proverbial winners and losers under the Graham-Cassidy bill? The answer is simple: Nope.

While the bill’s proponents claim the legislation will increase state authority, in reality the bill gives unelected bureaucrats the power to distribute nearly $1.2 trillion in taxpayer dollars unilaterally. In so doing, the bill concentrates rather than diminishes Washington’s power—and could set the course for the “mother of all backroom deals” to pass the legislation.

A Complicated Spending Formula

To start with, the bill repeals Obamacare’s Medicaid expansion and exchange subsidies, effective in January 2020. It then replaces those two programs with a block grant totaling $1.176 trillion from 2020 through 2026. All else equal, this set of actions would disadvantage states that expanded Medicaid, because the Medicaid expansion money currently being received by 31 states (plus the District of Columbia) would be re-distributed among all 50 states.

From there the formula gets more complicated. (You can read the sponsors’ description of it here.) The bill attempts to equalize per-person funding among all states by 2026, with funds tied to a state’s number of individuals with incomes between 50 percent and 138 percent of the poverty level.

Thus far, the formula carries a logic to it. For years conservatives have complained that Medicaid’s match rate formula gives wealthy states more incentives to draw down federal funds than poor states, and that rich states like New York and New Jersey have received a disproportionate share of Medicaid funds as a result. The bill’s sponsors claim that the bill “treats all Americans the same no matter where they live.”

Would that that claim were true. Page 30 of the bill demonstrates otherwise.

The Trillion-Dollar Loophole

Page 30 of the Graham-Cassidy bill, which creates a “state specific population adjustment factor,” completely undermines the rest of the bill’s funding formula:

IN GENERAL.—For calendar years after 2020, the Secretary may adjust the amount determined for a State for a year under subparagraph (B) or (C) and adjusted under subparagraphs (D) and (E) according to a population adjustment factor developed by the Secretary.

The bill does say that HHS must develop “legitimate factors” that affect state health expenditures—so it can’t allocate funding based on, say, the number of people who own red socks in Alabama. But beyond those two words, pretty much anything goes.

The bill says the “legitimate factors” for population adjustment “may include state demographics, wage rates, [and] income levels,” but it doesn’t limit the factors to those three characteristics—and it doesn’t limit the amount that HHS can adjust the funding formula to reflect those characteristics either. If a hurricane like Harvey struck Texas three years from now, Secretary Tom Price would be within his rights under the bill to cite a public health emergency and dedicate 100 percent of the federal grant funds—which total $146 billion in 2020—solely to Texas.

That scenario seems unlikely, but it shows the massive and virtually unprecedented power HHS would have under the bill to control more than $1 trillion in federal spending by executive fiat. To top it off, pages 6 through 8 of the bill create a separate pot of $25 billion — $10 billion for 2019 and $15 billion for 2020 — and tell the Centers for Medicare and Medicaid Services administrator to “determine an appropriate procedure” for allocating the funds. That’s another blank check of $25,000,000,000 in taxpayer funds, given to federal bureaucrats to spend as they see fit.

Backroom Deals Ahead

With an unprecedented level of authority granted to federal bureaucrats to determine how much funding states receive, you can easily guess what’s coming next. Unnamed Senate staffers already invoked strip-club terminology in July, claiming they would “make it rain” on moderates with hundreds of billions of dollars in “candy.” Under the current version of the bill, HHS staff now have virtual carte blanche to promise all sorts of “state specific population adjustment factors” to influence the votes of wavering senators.

The potential for even more backroom deals than the prior versions of “repeal-and-replace” demonstrates the pernicious power that trillions of dollars in spending delivers to Washington. Draining the swamp shouldn’t involve distributing money from Washington out to states, whether under a simple formula or executive discretion. It should involve eliminating Washington’s role in doling out money entirely.

That’s what Republicans promised when they said they would repeal Obamacare—to end the law’s spending, not work on “spreading the wealth around.” That’s what they should deliver.

This post was originally published at The Federalist.

Weekly Newsletter: September 8, 2008

The Outlook Ahead

Congress returns from its annual summer vacation today with several health-related issues on the agenda for the month of September. Specifically, additional Medicaid funding could be included in economic “stimulus” legislation, and a massive expansion of the State Children’s Health Insurance Program (SCHIP) could come up for another vote. Finally, an agreement-in-principle that negotiators reached on mental health parity legislation could receive a final vote if disputes surrounding the bill’s pay-fors can be resolved.

Many conservatives may be concerned about the Medicaid spending provisions (H.R. 5268), which would provide more than $10 billion in aid to states without providing any “stimulus”—as federal spending would merely supplant state outlays. At a time when the federal government’s budget deficit stands at least eight times the size of states’ combined budget deficits, conservatives may question why the federal government should be asked to bail out states facing fiscal difficulties much smaller by comparison.

Just as important, many conservatives may be concerned that this giveaway to states would not be accompanied by any substantive reforms to a Medicaid program that often fails to provide adequate care to the vulnerable patients it was designed to serve. In many cases, bureaucratic obstacles discourage providers from participating, resulting in limited access and months-long waits for beneficiaries, while fraud remains a persistent problem in several states. Some conservatives may believe that time on the legislative calendar debating a Medicaid bailout should instead be used to discuss more comprehensive structural reforms to the program—so that the poorest beneficiaries are not subjected to more of the same from a government health system that does not work for many.

On SCHIP, many conservatives may retain concerns about a significant expansion of the program— which, according to an Congressional Budget Office score, would now cost significantly more than the $35 billion expansion (H.R. 3963) vetoed by the President last fall. At a time of economic uncertainty for many Americans, conservatives may not support a substantial increase in federal tobacco taxes, which would be borne primarily by working-class families, as a way to increase the government’s role in health care. In addition, many conservatives continue to support Administration guidance designed to ensure that states enroll poor children first before expanding their SCHIP programs to wealthier families, and oppose any efforts by Congressional Democrats to repeal this important principle.

In addition to the concerns that some conservatives may have regarding the increases in insurance premiums caused by mental health parity legislation, conservatives may also be concerned about the way in which the bill’s more than $3 billion price tag will be financed. During House consideration of a mental health parity bill (H.R. 1424) in March, many conservatives objected to provisions—restrictions on physician-owned specialty hospitals, and increased drug rebates demanded from pharmaceutical companies—that undermined free markets in health care and expanded government price controls. The mental health bill is currently attached to tax extenders legislation in the Senate, which remains deadlocked over unrelated disputes; if the impasse over tax provisions continues, it remains unclear which direction or form the mental health legislation may take.

The RSC has prepared two new Policy Briefs, providing an update on SCHIP enrollment statistics and analyzing the premium support provisions within SCHIP.

Uninsured Numbers Show Need for Entitlement Reform

During the recess, the Census Bureau released its annual report on income and health insurance coverage during 2007. The report found that the number of uninsured declined by 1.3 million in 2007 when compared to the previous year, due largely to a 2.8 million increase in the number of Americans receiving coverage under various public programs, particularly Medicaid and Medicare.

Some conservatives may believe the significant growth in the number of Americans receiving government-run health insurance coverage provides another reason to re-examine entitlement spending and reform the health care system. In particular, market-based health reforms have the potential to slow the growth of health costs that threaten both America’s fiscal future and the financial well-being of many families.

The RSC has released an updated Policy Brief analyzing the new Census data, as well as a new Policy Brief highlighting the impact of illegal immigrants—who constitute as much as one-fifth of the uninsured in America—on the health care system.

Cooking the Books

During the recess, the Department of Health and Human Services’ Inspector General released a report criticizing the auditing process undertaken by the Centers for Medicare and Medicaid Services (CMS) with respect to the integrity of purchases of durable medical equipment (DME). The report stated that CMS’ guidance to the external auditors hired to examine DME claims failed to implement a rigorous level of scrutiny, and that as a result the level of questionable claims was significantly higher than CMS had first reported. Responding to the IG report, Ways and Means Health Subcommittee Chairman Pete Stark (D-CA) said that “to look better to the public, [CMS] cook[s] the books;” he called the agency “incompetent.”

However, three weeks earlier Mr. Stark himself made dubious claims with respect to Medicare reform and President Bush’s tax relief. During debate on the resolution (H.Res. 1368) turning off the Medicare “trigger” mechanism, Mr. Stark claimed that extending the Bush tax relief would cost $100 trillion over 75 years—about three times’ Medicare’s unfunded obligations over that period—such that forgoing an extension of the tax relief provisions would somehow end Medicare’s long-term financial difficulties. However, a report by the liberal Center for Budget and Policy Priorities cites the 75-year cost of the tax relief as $13.6 trillion—less than one-seventh the number cited by Stark in debate—and explicitly states that Medicare and health costs pose a greater threat to the nation’s fiscal solvency than the President’s tax relief. Asked repeatedly to provide a source of information justifying Stark’s statement, Ways and Means Committee staff could not substantiate his comments, or provide an explanation for the $86 trillion higher figure.

Weekly Newsletter: June 30, 2008

Senate Blocks Deep Cuts to Medicare Advantage…

Before recessing for the Independence Day recess, the House passed—and the Senate declined to limit debate on—legislation (H.R. 6331) addressing physician reimbursement levels under Medicare. The bill would prevent for 18 months a reduction in fee schedule levels scheduled to take effect on July 1, and would expand access to certain subsidy programs for low-income beneficiaries. These provisions would be offset largely by cuts to private Medicare Advantage plans, particularly private fee-for-service plans.

Some conservatives may be concerned that the House-passed bill’s significant cuts to Medicare Advantage would have the effect of driving beneficiaries away from a privately-run model of health insurance that has provided enhanced benefits and choice for millions of seniors, especially the 2.2 million beneficiaries in private fee-for-service plans. Some conservatives also may be concerned that the bill fails to address the long-term integrity of the Medicare program, relying on funding gimmicks and government-controlled price-fixing rather than undertaking comprehensive reform that would inject market forces into the program as a means to slow the growth of health care costs.

Following the House vote, nearly six dozen House Members—including RSC Chairman Hensarling— weighed in asking the Senate to revive bipartisan compromise legislation, crafted by Finance Committee Chairman Baucus and Ranking Member Grassley, that would address physician reimbursements without damaging beneficiary access to Medicare Advantage plans.

The Legislative Bulletin on H.R. 6331 can be found here.

…While Democrat Political Gamesmanship Prevents Physician Fix

After the Senate vote to limit debate on physician payment legislation that included significant cuts to Medicare Advantage failed on Thursday, Senate Republican Leader Mitch McConnell attempted to pass by unanimous consent a 30-day extension of current reimbursement provisions. However, Majority Leader Reid objected, and in so doing referred to several House special election results while commenting that “I don’t know how many people are up here for re-election, but I am watching a few of them pretty closely.” Because Senate Democrats objected to Republicans’ unanimous consent requests to pass a “clean” physician payment bill, physicians will take a 10% cut in their reimbursement levels beginning today unless and until Congress passes a retroactive fix. However, today’s Politico reports that the Administration is considering ways to delay the impact of the reimbursement adjustment, pending efforts by Congress after the recess to address the matter.

Some conservatives may be concerned by the Senate Majority Leader’s actions blocking a “clean” extension of current-law policies on physician reimbursement. Some conservatives may also believe that the short-term nature of current physician reimbursement extensions, coupled with their potential to become entwined in unrelated disputes and/or “held hostage” due to various political considerations, makes a powerful argument for more comprehensive reforms to Medicare, including a long-term solution to physician reimbursement policy.

While it is currently unclear whether Democrats will continue to block Republican attempts to pass noncontroversial physician payment legislation, or what precise form a more bipartisan bill designed to address the reimbursement provisions will take, the RSC will weigh in with conservative concerns and updates on H.R. 6331 and any other physician payment legislation which may be introduced or considered following the recess.

There are additional RSC Policy Briefs on issues related to the Medicare bill: Physician Payments; Medicare Advantage; Bidding for Durable Medical Equipment; and the Medicare Trustees Report.

Report Could Presage Democrat Efforts at Insurer Price Controls

In a related development, Ways and Means Health Subcommittee Chairman Pete Stark released a Government Accountability Office (GAO) study on Tuesday, which noted that in 2005 Medicare Advantage plans had lower medical costs and higher profits than first projected when submitting their bids for that contract year. Although the Centers for Medicare and Medicaid Services (CMS) noted that the profit projections were made under a now-defunct bidding process that may have explained much of the disparity, Democrats may attempt to use the GAO study to revive provisions in legislation (H.R. 3162) the House passed last year imposing a minimum “medical loss ratio” that would require Medicare Advantage plans to spend at least 85% of their total revenues on health care expenses.

To the extent that the higher-than-expected profits highlighted in the report are derived from improved care models and administrative and related efficiencies, some conservatives may view these proceeds as consistent with the free-market principles that reward companies who take measures to streamline operations while improving quality of care. Conversely, some conservatives may also believe that efforts to restrict medical loss ratios constitute de facto price controls on the insurance industry that will prove ineffective at controlling the growth of health care costs and could lead to unintended and potentially adverse consequences for enrollees.

The RSC has prepared a Policy Brief on this issue, available here.

Article of Note: Public vs. Private Debate Revolves Around Taxes

A study released last week by researchers affiliated with the liberal Center for Budget and Policy Priorities, and published online by Health Affairs, studied the relative efficiencies of private and public health insurance models. The authors conclude that public coverage through government programs like Medicaid is more efficient than private insurance, largely because public programs feature less cost-sharing than private coverage.

Given that a similar study released in 2003 found that lower reimbursement rates to providers were the primary reason that public programs had lower medical costs than private insurance, some conservatives may take issue with the study’s findings. The authors admit that providers are paid less under Medicaid than most private payers, and advocate an increase in reimbursement rates that would “improve patients’ access to and quality of care.” Yet the study methodology fails to take into account that medical spending for Medicaid patients is lower than private insurance precisely because beneficiaries in public programs have poorer access to provider care—in other words, that costs for Medicaid patients could be lower because they have coverage they cannot as readily use.

Some conservatives may believe that the authors’ admission that public programs reimburse providers at lower levels highlights the double taxation associated with expansions of Medicaid or the State Children’s Health Insurance Program (SCHIP). In addition to the amounts government spends to cover individuals in a public program, the cost-shifting that results from unrealistically low government reimbursement rates represents secondary taxes throughout the economy—on individuals with private insurance who pay more to subsidize health care costs the government will not pay; on Medicaid beneficiaries with reduced access to care; and on providers who are forced to work longer hours, or shorten the amount of time spent with each patient, in order to compensate for costs the government will not pay. For these reasons, many conservatives may believe that market-based reforms to the health care sector represent a far more preferable way to improve the quality of care while controlling the growth of health care costs.

Question and Answer: Medicaid Anti-Fraud Legislation

In advance of the floor vote on legislation (H.R. 5613) regarding several Medicaid regulations, the RSC has prepared the following document providing context and background information on the proposal.

What would H.R. 5613 do?

H.R. 5613 would extend certain existing moratoria on the Centers for Medicare and Medicaid Services (CMS), prohibiting the agency from promulgating rules related to the integrity of the Medicaid program until April 1, 2009.  In addition, H.R. 5613 would impose additional new moratoria on CMS relating to other proposed Medicaid regulations, also until April 2009.

Why have these regulations been issued?

Since 1994, the Government Accountability Office (GAO) has compiled more than a dozen reports highlighting problems with Medicaid financing, and specifically the ways in which state governments attempt to “game” Medicaid reimbursement policies in order to maximize the amount of federal revenue funding state health care programs.  The persistent shortcomings in federal oversight of these state funding schemes prompted GAO to add the Medicaid program to its list of federal entities at high risk of mismanagement, waste, and abuse in 2003.

Many of the GAO reports—as well as audits performed by the Department of Health and Human Services’ Inspector General—have included calls for additional federal oversight around various state Medicaid reimbursement initiatives, particularly the need for clear and consistently applied guidance from CMS about the permissiveness of various financing arrangements.  Several of CMS’ proposed regulations attempt to remedy this problem, and restore clarity and fiscal integrity to the Medicaid program.

Why is CMS publishing clearer regulatory standards on a permanent basis?

Press reports, as well as the GAO studies and Inspector General audits, have provided several specific examples of waste, fraud, and abuse in the Medicaid program:

  • Over $300 million—far more than any other state Medicaid program—in spending by the New York state Medicaid program on transportation services, some of which involved rides for seniors mobile enough to rely on public transportation and other services which investigators believe may not have been performed at all; [1]
  • A May 2003 claim for Medicaid targeted case management reimbursement that included the following notation from the case manager explaining her contact with the beneficiary:

Phone call with mother.  Discussed the outstanding warrant for [name redacted].  She does not know where he is.  She will call police when he shows up;

  • Rehabilitation services that include such activities as trips to Wal-Mart and bingo games;
  • A New York nursing home that was forced to return more than half its gross revenues to state and county offices, resulting in net revenues that were $20 million less than its operating costs—and creating significant staffing shortages that may have affected patients’ quality of care.[2]

Does this bill rely on a PAYGO gimmick?

According the Congressional Budget Office, the bill withdraws more than $750 million from the Physician Assistance and Quality Improvement (PAQI) fund in 2013.  While H.R. 5613 replenishes the PAQI fund in later fiscal years, some conservatives may be concerned that a mechanism designed to reward physician quality is being used as a “slush fund” to overcome what would otherwise be a scoring problem under the five-year budgetary model and House PAYGO rules.

How much does this bill cost?

According to the Congressional Budget Office, a moratorium prohibiting further regulatory action by CMS until April 2009 costs $1.65 billion over both five and ten years.  However, this score presumes the full implementation of the regulations in April 2009 under a new Administration.  If the moratoria are maintained, the lost savings would total $17.8 billion over five years, and $42.2 billion over ten.

Could a future Administration decide to withdraw the pending regulations before they go into full effect?

Yes.  In fact, staff for Energy and Commerce Committee Chairman Dingell have publicly stated that H.R. 5613 is intended to delay the implementation of the Medicaid rules just long enough so that a future Administration can withdraw them.

If a future Administration chose to withdraw some or all of the regulations, how much savings would the Executive branch have to find to replace the foregone $40 billion in savings?

Not a dime.  PAYGO rules apply only to House consideration of legislation, and do not extend to Executive branch actions.

Does the Administration support H.R. 5613?

No.  In a Statement of Administration Policy released yesterday, the White House placed a veto threat on H.R. 5613 because it would “put billions of dollars of Federal funds at risk, and would turn back progress that has already been made to stop abusive State practices” in Medicaid.

Should H.R. 5613 be considered under suspension of the rules?

During debate on H.R. 5613, Energy and Commerce Ranking Member Joe Barton—a supporter of the bill—expressed his disappointment that, given the importance of the bill and the Administration’s veto threat on it, the bill was not brought to the floor under a rule, to allow additional time for deliberation and debate—as well as an opportunity for a Republican motion to recommit the legislation.

Do states believe that their current actions on Medicaid are appropriate?

During the Energy and Commerce Committee hearing on H.R. 5613, most witnesses supporting the legislation—and opposing the regulations—did not attempt to argue the point that the regulations are inappropriate, or that there are not abuses currently within the Medicaid system.  Most of the testimony from witnesses—and most of the arguments made by Members supporting the legislation—instead focused on the impact for hospitals, states, and local governments associated with losing a current source of funding.

In addition, several states have reached agreement with CMS on curtailing practices that various audits have identified as being inconsistent with the fiscal integrity of the Medicaid program and its shared federal-state partnership.  The regulations that would be blocked by H.R. 5613 attempt to codify these clear standards for states and future Administrations to follow in future years.

Do States not need the money in the current economic environment? 

According to the liberal Center for Budget and Policy Priorities, the combined total of all states deficits in FY 2009 is expected to be $40 billion.  The federal government faces a FY 2009 deficit of $340 billion—8.5 times greater than the combined shortfall facing the states—and lacks a balanced budget requirement that many states are forced to operate under.  In addition, much of the financial difficulties facing states results from their expansions of the Medicaid program in recent years that they now cannot afford.

Haven’t Congressional Republicans recently taken action to slow the growth in Medicaid spending and improve Medicaid’s fiscal integrity?

Yes.  The Deficit Reduction Act (P.L. 109-171), which passed in December 2005 with the support of 212 Members—all Republicans—included $4.8 billion in Medicaid savings over five years as a first attempt to restore its fiscal integrity by slowing its growth.  However, if the moratoria remain intact, those modest reductions in Medicaid’s growth rate would be more than exceeded by the $16-18 billion in foregone savings over five years associated with the regulations’ repeal.

Why is reforming Medicaid so important? 

The growth of Medicare, Medicaid, and Social Security are unsustainable.  These entitlement programs have a total unfunded liability of more than $50 trillion, which amounts to over $450,000 for every American family.  A baby girl born this morning in America automatically inherits a full mortgage as she takes her first breath.  By 2040, taxes would need to double in order to pay for the compounded spending if the federal budget is left on automatic pilot—and that’s assuming no more additional spending.  If taxes are not doubled, by 2040, Social Security, Medicare, and Medicaid—just three programs—will crowd out all other national priorities in the federal budget, including defense programs, veterans programs, etc.  Some conservatives may be concerned that this bill is an attempt to undo a modest effort on the part of the Administration to begin rooting out waste, fraud, and abuse in Medicaid and slow its growth.

What changes were made to the bill in Committee?

During consideration in the Energy and Commerce Committee, Chairman Dingell and Ranking Member Joe Barton (R-TX) reached agreement on several modifications to the legislation.  The revised language narrowed the scope of the proposed moratoria to permit CMS to engage in outreach activities with states to curtail abusive and/or questionable financing tactics, while maintaining the moratoria on CMS’ ability to enact clear standards prohibiting these activities permanently.  In addition, the substitute language adopted in Committee included increased funding for anti-fraud enforcement, an independent study assessing the need for the regulations and their potential impact on states, and inclusion of an asset verification system to pay for the moratorium.  Some conservatives may argue that, while these changes have improved the bill, GAO has provided Congress with a wealth of studies highlighting problems that the CMS regulations blocked by H.R. 5613 seek to address.


[1] Clifford Levy and Michael Luo, “Medicaid Fraud May Reach into Billions,” The New York Times 18 July 2005, available online at (accessed March 29, 2008).

[2] “Adequacy of Medicaid Payments to Albany County Nursing Home,” (Washington, DC, Department of Health and Human Services Office of the Inspector General Report #A-02-02-01020), available online at (accessed April 20, 2008), pp. 6-7.