The partial shutdown of the federal government has prompted the Department of Justice to ask for a delay in the lawsuit challenging Kentucky’s planned overhaul of Medicaid. But it won’t be for as long as the department had hoped for.
Judge James Boasberg issued an order late Friday rejecting a motion for an indefinite stay in a case centering on the state’s section 1115 waiver known as Kentucky HEALTH, but he is allowing a one-week extension for the Department of Justice to meet briefing deadlines.
More than a dozen Medicaid recipients are suing the Trump administration in Washington, D.C., to block the recently approved Kentucky HEALTH program, which includes features, such as premiums and a work or “community engagement” requirement.
Earlier this week, the Department of Justice filed a motion saying that the counsel for the federal defendants in the case have been unable to work on the case, except in a very limited way, because of a lack of funding since late December when the shutdown began.
DOJ asked for “a stay of the case until Congress has restored appropriations” to the department. If that wouldn’t be possible, a 10-day extension to meet briefing deadlines would be the favored alternative, the department’s motion said.
But, before making a final decision, Boasberg indicated, in the court record, that he’d be inclined to extend the briefing deadline by only a week unless the state of Kentucky agreed to delay the April 1 implementation of the Kentucky HEALTH program.
When contacted by Insider Friday to ask whether Kentucky planned to delay implementation, Cabinet Secretary Adam Meier issued a statement reiterating that “the Kentucky Department for Medicaid Services will continue to work toward implementation of the Kentucky HEALTH waiver on April 1st. Kentuckians, and specifically our Medicaid members, deserve a Medicaid program that will improve health outcomes and provide paths for employability, long-term stability, and future success while also ensuring the long-term sustainability of Medicaid for those who need it most.”
In an official response to the DOJ’s motion, Kentucky had said Thursday that it wasn’t opposed to a 10-day extension of the briefing deadline but was opposed to a more general stay.
“The Commonwealth prefers that this action, and any appeal, be resolved sooner rather than later,” the response says. “Because a 10-day extension of all briefing deadlines provides somewhat more flexibility to keep this case moving than does an open-ended stay, the Commonwealth, for now, opposes a stay of this case and supports a 10-day extension of all briefing deadlines, with the option to revisit the necessity of a stay should appropriations continue to lapse.”
The plaintiffs, who are represented by the National Health Law Program, the Kentucky Equal Justice Center and the Southern Poverty Law Center, argued that Medicaid recipients in Kentucky would be hurt by an indefinite stay.
“The briefing schedule, as proposed jointly by the parties and adopted by the Court, was designed to ensure that the Court will be able to consider arguments and decide the case prior to April 1, 2019,” the plaintiffs’ response notes. “… After that date, it is Plaintiffs and other Medicaid recipients who will face immediate benefit cuts and be forced to comply with work and premium requirements or lose Medicaid coverage altogether. The benefit cuts, which include eliminating non-emergency transportation, and new restrictions on eligibility will leave Plaintiffs and Medicaid recipients unable to afford medically necessary health care.”
The plaintiffs, who have filed a motion for partial summary judgment, went on to say that “there is little chance that Congress or the Commonwealth of Kentucky will take action to pay the costs of medical care for those removed from Medicaid or losing currently covered benefits under Kentucky HEALTH. And it is impossible to compensate Medicaid recipients for medical care forgone because they are unable to afford it.”
Friday night, Cara Stewart, a health law fellow with the Kentucky Equal Justice Center, applauded the judge’s decision, noting that Boasberg’s “concern in not allowing an indefinite stay shows he understands the risks in allowing the defendants to push closer to their proposed implementation date.”
It is unclear when the government shutdown will end, but it could have further ramifications in the federal courts.
The New York Times is reporting that the federal courts themselves are running out of money and that “judges and court officials around the country are bracing for the likelihood that the federal judiciary will be unable to maintain its current operations within the next two weeks, once it exhausts the money it has been relying on since the shutdown began last month.”
This story has been updated with the judge’s decision and a comment from Cara Stewart.