- Maine voters approved Medicaid expansion ballot initiative in 2017 election
- State missed April 3 deadline to propose expansion plan to CMS, advocates sued
- Judge rules that Medicaid expansion must move forward, but DHHS has appealed
- Maine has until July 2 to implement Medicaid expansion
- Gov. LePage still opposes expansion; can’t block it, but can delay it
- Pending 1115 waiver would impose work requirements, premiums, & asset test
Voters approve Medicaid expansion, scheduled to take effect July 2. But state hasn’t taken action yet to expand coverage, so advocates filed a lawsuit. Judge ruled that expansion must move forward, and LePage Administration has appealed
After years of battling with their Governor, advocates for Medicaid expansion in Maine took the issue to the voters in the 2017 election. Question 2, the Medicaid Expansion Initiative, was approved, with 59 percent of voters supporting Medicaid expansion. It’s estimated that 70,000 to 80,000 additional people in Maine will qualify for Medicaid once eligibility is expanded to those with household income up to 138 percent of the poverty level, as called for in the ACA.
Unlike some other states that have used 1115 waivers to expand Medicaid with state-specific guidelines, Question 2 initiates a straightforward expansion as called for under the ACA, so Maine’s Department of Health and Human Services essentially just has to inform HHS, with a state plan amendment, that their Medicaid program will expand as called for in the ACA, rather than requesting HHS approval to create a unique approach to expansion.
Under the terms of the ballot initiative, Maine had until April 3 to submit a proposal to the federal government outlining their plan to expand Medicaid. And they have until July 2 to have expanded Medicaid coverage available to eligible Maine residents. This is required under state law now that the ballot initiative passed, and no legislation is necessary in order to move forward with expansion.
But April 3 came and went, and Governor Paul LePage’s administration did not submit a Medicaid expansion proposal to CMS. The governor has steadfastly refused to expand Medicaid — even after the ballot initiative passed — until lawmakers come up with what he considers adequate funding (it’s noteworthy that LePage’s office has cited a much higher state cost for Medicaid expansion than the projection from the Maine Office of Fiscal and Program Review), and LePage included several constraints in terms of what he’ll allow as far as funding sources, saying that lawmakers can’t raise taxes or tap the state’s rainy day fund.
Maine is set to receive a one-time tobacco settlement of $35 million, which the state’s Attorney General has suggested could be used to fund the state’s share of Medicaid expansion costs in the first year. The state also has $128 million in projected surplus revenue that could be used to fund expansion, but LePage has pushed back against both suggestions. Medicaid expansion advocates were hoping for a legislative solution in April, as opposed to a protracted legal battle, but they noted that if necessary, they would sue the LePage Administration in order to implement the legally binding ballot initiative.
The legislative session ended without an agreement on Medicaid expansion funding, and on April 30, a lawsuit was filed against the Maine Department of Health and Human Services. The plaintiffs in the case include two consumer advocacy groups (Maine Equal Justice Partners and Consumers for Affordable Health Care), the membership organization that represents Maine’s Community Health Centers (Maine Primary Care Association), the largest federally qualified health center in Maine (Penobscot Community Health Care) and five Maine residents who will gain access to Medicaid once expansion is implemented.
The lawsuit requests that the Maine Department of Health and Human Services file a state plan amendment with the federal government within three days, and move forward with the rest of the Medicaid expansion process in an expedited fashion, so that the coverage expansion can take effect by July 2, as originally scheduled. The petitioners also filed a motion to expedite the lawsuit.
In mid-May, the LePage Administration responded to the lawsuit, arguing that they cannot proceed with the implementation of Medicaid expansion until the Maine legislature allocates funding for the state’s costs associated with expansion. A few days later, attorneys for Maine Equal Justice Partners countered with a filing noting that the state already has enough money to fund the first year of Medicaid expansion without having to allocate any new funds, and clarifying that the administration cannot legally refuse to implement the law, regardless of the governor’s personal opposition to Medicaid expansion.
On June 4, Superior Court Justice Michaela Murphy ruled that the Maine Department of Health and Human Services must proceed with filing a Medicaid expansion plan (a state plan amendment, or SPA) with the federal government, giving them until June 11 to do. The ruling noted that there is no cost associated with submitting an SPA to the federal government, and thus the lack of appropriation for the state’s portion of the cost of Medicaid expansion was immaterial.
On June 7, Maine Insurance Commissioner Ricker Hamilton filed an appeal, which will be heard by the Maine Supreme Judicial Court. The appeal requests that the Superior Court order be stayed pending the outcome of the appeal. The appeal itself is based on the argument that requiring DHHS to submit an SPA before the state legislature has allocated funds for Medicaid expansion is a violation of the separation of powers in the state’s government.
The appeal includes a suggestion that the case be heard in mid-July, which is after the July 2 date that expanded Medicaid was to take effect (note that there is a typo in the appeal; near the bottom of page 5, it describes the upcoming court session scheduled for July 18-19, 2019; that should be 2018).
So for the time being, the case is still in limbo. But when I discussed this with the Maine People’s Alliance, they noted that their hope is that once the situation is resolved, expanded Medicaid coverage will be available with a retroactive effective date as early as July 2, for people who apply on that date. People can apply for MaineCare at any time. If the eligibility guidelines haven’t been expanded, the application will be rejected. But it may eventually be possible to get retroactive coverage for people who apply on or after July 2.
Once the ballot initiative is eventually implemented as called for by voters, Maine will become the 33nd or 34th state (including DC) to accept federal funding to expand Medicaid under the ACA (Virginia will expand Medicaid starting in 2019, so depending on the timing, Maine may do so before or after Virginia).
Pending 1115 waiver would implement work requirement, premiums, asset test, & end retroactive eligibility — but would not expand coverage
Not only has LePage refused to move forward with implementation of a legally binding ballot initiative to expand Medicaid, his Administration is actively working to make the state’s existing Medicaid eligibility guidelines more stringent. Under the direction of Ricker Hamilton, whom LePage appointed to lead the state’s Department of Health and Human Services earlier in 2017, Maine submitted an 1115 waiver, which was still pending CMS approval as of early April, 2018.
Several states have submitted 1115 waivers to the Trump Administration, seeking various changes that were never allowed under the Obama Administration. But Maine’s goes farther than most. The state has proposed a work requirement for people up to age 64, premium contributions required if household income is 51 percent of the poverty level or above (for a family of four, that would start at incomes under $13,000/year), an asset test (with Medicaid only available to people with assets of under $5,000, as opposed to the current income-based system), and the elimination of retroactive eligibility.
Under the Trump Administration, work requirements have been approved for the Medicaid programs in Arkansas, Indiana, and Kentucky, and several other states are awaiting similar waiver approvals. Premiums and the elimination of retroactive eligibility have also been approved for some states, but no state has received approval to implement an asset test (asset tests were used in some states prior to the ACA, but the ACA switched all Medicaid programs to an income-based eligibility system, although eligibility for Medicaid to pay for long-term care still has an asset test).
Notably, Maine’s 1115 waiver would not expand Medicaid coverage in any way. Several states have used 1115 waivers to implement state-specific variations of Medicaid expansion, but the LePage Administration has proposed a waiver that, if approved, would result in fewer people enrolled in Maine’s Medicaid program.
Will other states follow Maine’s ballot initiative lead?
In all of the other states that have expanded Medicaid, the decision was made either by lawmakers or the governor or both — Maine is the first state where the issue has been decided via ballot initiative. The success of the ballot measure in Maine is likely to inspire similar initiatives in other states that have not yet expanded Medicaid, but where there is strong grassroots support for expansion. Idaho, Missouri, Nebraska, Oklahoma, South Dakota, Utah, and Wyoming are all states that have thus-far rejected Medicaid expansion, but that allow citizens to place measures on the ballot.
Medicaid expansion advocates have successfully gathered enough signatures in Utah and Idaho to get Medicaid expansion initiatives on the ballot in those states in 2018 (assuming the signatures are certified), and Nebraska expansion advocates have until July 6 to gather enough signatures.
Most of the states that have expanded Medicaid did so as soon as possible, with coverage effective January 2014. But there have been several late expansions, the most recent of which was Louisiana, in July 2016. None of the holdout states expanded Medicaid during 2017, a year that was fraught with uncertainty over the fate of Medicaid expansion and the ACA itself.
But all of the bills that would have eventually repealed the ACA—and prevented any additional states from expanding Medicaid—ultimately failed, and Medicaid expansion remains available for any states that want to accept the federal funding to do so (the federal government currently pays 94 percent of the cost; that will decline to 90 percent by 2020, and remain at that level going forward, as long as the ACA’s Medicaid expansion provision is left intact).
Governor remains opposed. Cannot block Medicaid expansion from taking effect, but can delay it
Although Question 2 had strong support from voters in the 2017 election, Governor Paul LePage — who has long been outspoken in his opposition to Medicaid expansion — vowed immediately that implementation would not move forward until state lawmakers could find a way to fund the state’s portion of the cost of Medicaid expansion (the up-to-10 percent of costs that the state will have to pay). And LePage laid out several conditions in terms of that funding, saying that he wouldn’t support any measures that involve raising taxes, cutting benefits for existing disabled and/or elderly Medicaid enrollees, or tapping into Maine’s rainy day fund.
The legislative session in Maine began on January 3, 2018, and adjourned on April 18, without any measures to allocate funding for Medicaid expansion. But Maine People’s Alliance explained that because the ballot initiative became law, Medicaid expansion will eventually move forward, regardless of whether the legislature specifically allocates money to cover the state’s portion of the cost.
The state’s cost for the first full year of expansion is projected to be about $31 million to 55 million, while the federal government will contribute about $490 million to $525 million. These numbers make it clear why Medicaid expansion is a win for states; half a billion dollars in federal funding being pumped into the state’s economy will have a positive impact that goes well beyond the effect for people who gain coverage; thousands of jobs will be created, hospitals—particularly rural hospitals—will be more likely to remain financially viable, and of course, fewer people in Maine will be uninsured.
By mid-February, activists rallied during LePage’s State of the State address, and frustrations were mounting that the state had not yet made visible progress towards outlining an expansion proposal to submit to the federal government by the beginning of April. But according to Maine People’s Alliance, while Gov. LePage can throw up roadblocks that might delay the process, but he can no longer prevent Medicaid expansion from taking effect.
Lawmakers in Maine had been trying for years to accept federal funding to expand Medicaid and provide coverage for at least 70,000 of the state’s lowest-income residents (some of these people are eligible for premium subsidies in the exchange, but people with income under the poverty level are in the coverage gap created by the Governor’s refusal to expand Medicaid). Over the years, they’ve passed five bills that called for expanding Medicaid, but Governor LePage’s ongoing opposition on the issue has been an insurmountable stumbling block. LePage has vetoed all five Medicaid expansion bills, and lawmakers have not had the votes to override his vetoes. The 2016 bill, LD633, passed but only by one vote — far from a veto-proof majority. It was tabled and died at the end of the 2016 legislative session.
Medicaid has been a political battle in Maine. Not only has LePage rejected Medicaid expansion, he also cut existing coverage through eligibility changes that went into effect March 1, 2013, and Jan. 1, 2014. And many Republicans in the legislature have also opposed Medicaid expansion, preventing the legislature from getting enough votes to overcome LePage’s vetoes.
Wording of the ballot initiative was contentious
The Maine Secretary of State announced in February 2017 that the initiative to expand Medicaid had garnered enough signatures to appear on the November 2017 referendum ballot. But the wording of the ballot initiative became a point of contention, with proponents of Medicaid expansion calling it “insurance” and opponents — including LePage — insisting that it be called “welfare” or something similar.
Ultimately, the wording of the ballot initiative was changed to “coverage” and the official language of Maine Question 2 is as follows:
“Do you want Maine to expand Medicaid to provide healthcare coverage for qualified adults under age 65 with incomes at or below 138% of the federal poverty level, which in 2017 means $16,643 for a single person and $22,412 for a family of two?”
According to Ballotpedia, Medicaid expansion supporters had raised $196,163 by September 22, 2017 in support of a “yes” vote on Maine Question 2. Opponents had raised $229. Ultimately, by the conclusion of the campaign, supporters of Question 2 had raised nearly $2.7 million, while opponents had raised about $428,000.
Eligibility guidelines for Maine Medicaid
As of 2016, Maine residents who meet the following income limits qualify for Medicaid:
- Children up to 1 year old: 191 percent of the federal poverty level (FPL)
- Children ages 1 to 18: 157 percent of FPL; children with family income up to 208 percent of FPL qualify for the Children’s Health Insurance Program
- 19 and 20 year olds: 156 percent of FPL
- Pregnant women: 209 percent of FPL
- Parents and other caretakers: 100 percent of FPL
Details for each state’s Medicaid and CHIP eligibility rules are here.
Apply for MaineCare
Maine’s Medicaid program is called MaineCare. If you think you may qualify, here is how you can submit an application.
- Go to MyMaineConnection to apply online.
- Print an application and mail it 114 Corn Shop Lane, Farmington, ME 04938.
- Call 1-855-797-4357 to enroll by phone.
- Visit your local Office for Family Independence (OFI) to enroll in person.
LePage reversed Maine’s pre-ACA Medicaid expansion
Gov. LePage has reversed the course on Medicaid set by former Gover John Baldacci, who authorized Dirigo Health in 2003. The program expanded Medicaid and subsidized private health insurance for middle-income residents. However, the program faced several financial difficulties as about 25 percent of the state’s residents enrolled in Medicaid by 2010 and Medicaid spending consumed nearly 30 percent of the state budget. The state fell behind in Medicaid reimbursements to hospitals, which were due nearly $500 million in state and federal payments.
LePage took office in 2011 and has since led efforts to cut the state’s Medicaid program. First, he reduced the eligibility limits for adults with dependents and reduced benefits for elderly Medicaid beneficiaries. Second, Maine ended coverage for adults without dependents, effective Jan. 1, 2014. The stricter eligibility limits resulted in about 25,000 people losing Medicaid eligibility. Third, the LePage administration petitioned the federal government for approval to end coverage for 19- and 20-year olds.
When the federal government rejected the request, the administration appealed the decision in circuit court with the help of outside counsel. The state’s attorney general declined to represent the state, saying the appeal had lacked merit. The 1st Circuit Court of Appeals in November 2014 upheld the federal government’s decision. The state petitioned to have the case heard by the Supreme Court, but the petition was denied in June 2015. Since the Supreme Court wouldn’t hear Maine’s case, the lower court’s decision stands, and Maine has continued to provide Medicaid coverage for roughly 6,500 eligible 19 and 20-year-olds.
As of October 2014, about 291,000 people were enrolled in MaineCare. By July 2016, enrollment had decreased to 270,827. And by November 2017, it had decreased even further, to 261,478. Nationwide, Medicaid/CHIP enrollment has grown by 29 percent since the end of 2013, including states that have expanded Medicaid as well as those that have not. Medicaid enrollment in Maine is expected to increase by at least 70,000 people once coverage is expanded, which will take it well above the 291,000 who were enrolled as of 2013.
But as described above, the state also has a pending 1115 waiver that was submitted to HHS in August 2017. If approved, it would result in fewer people covered under Maine’s Medicaid program, as it includes proposals for a work requirement, premiums, an asset test, and the elimination of retroactive eligibility.
Louise Norris is an individual health insurance broker who has been writing about health insurance and health reform since 2006. She has written dozens of opinions and educational pieces about the Affordable Care Act for healthinsurance.org. Her state health exchange updates are regularly cited by media who cover health reform and by other health insurance experts.