MEDICAID EXPANSION MYTHS 5/8/2013, Revised 5/21/2013

LB577 is just an extension of the present program• Original focus was the most vulnerable populations of needy • New focus is everybody – it's a fundamental change in PHILOSOPHY, shift in kind

Expansion gives the uninsured access to health care• Standing law forces hospitals to treat anyone who presents (While this law increases cost-

shifting problems, it is a FACT. People are not dying in the streets.)• Medicaid is insurance, NOT access to health care, NOT health care • Medicaid is a plastic card equal to a hunting license – to hunt for providers, for health care • Physicians won't accept new Medicaid patients NOW, all incentives against into future• Already have a shortage of physicians in Nebraska , ACA exacerbates that problem • Health care outcomes for Medicaid patients are poor , likely to get worse with expansion

Expanding Medicaid will clear emergency rooms of “frequent flyers”, especially for routine care

• Medicaid recipients are the most frequent flyers in emergency rooms, NOT uninsured• Uninsureds' and privately insureds' use of ER essentially the same

Uninsured people misuse the ER, causing hospitals to shift losses• Medicaid and Medicare recipients are the most “frequent flyers”• Medicaid recipients 2.5 to 3 times more likely to use ER for routine care than uninsured • Cost-shifting greater from underpayment by Medicare, Medicaid than from charity care

Primary care physician Medicaid reimbursement will be increased to Medicare levels• Medicare underpays too , so providers still lose, just at a slower rate• Increase is TIME-LIMITED ; only for two years (2013 – 2014)

Including a “sunset” clause in LB577 ensures an opportunity to review and reverse the expansion

• States had to sue to over Medicaid mandate – that signals trouble going forward• ACA bestowed vague, sweeping powers on Federal DHHS Secretary • ACA's M aintenance of Effort provisions likely problematical in future (note Maine)• Promises from DHHS regarding ability to withdraw are not legally binding• Waivers granted prior to passage of ACA irrelevant in light of new powers to Secretary• Proponents of LB577, such as Sen. Krist during bracket motion, are just a preview

If Nebraska turns down Federal money, it will just go to some other state • 18 states have already refused to expand Medicaid ; saves Federal budget $400 billion+ • If remaining states resisting expansion don't expand, total savings projected to exceed

$609 billion (half of annual deficit).

Medicaid expansion would promote economic development• Same logic as employed by Rep. Nancy Pelosi who argued unemployment and food

stamps are “job creators” (see average unemployment rates since 2008)• Takes money from Nebraska and sends it back. Why not cut out the middle man?• Doesn't account for lost opportunity costs; any grow th is in government, is taken from

taxpayers and not available in the private sector

Authors: Shelli Dawdy, Linda Rohman. Sharing encouraged if includes attribution & website http://grassrootsne.com

LB577 PROPONENTS FRAMING ARGUMENT, BREAKING OWN “RULES” 5/7, 5/21/2013

Must make arguments based on facts, not emotions• Proponents tell very detailed, heart-wrenching stories and read individual letters• Senators referencing their relatives and personal vows to rectify wrongs

Christians are hypocrites if they don't support Medicaid expansion• Christians are admonished not to impose Christian values on others regarding abortion,

homosexual “rights”, etc., yet ARE told to employ them regarding expanding Medicaid?• Many Christians believe it is a violation of their faith's teachings to supplant private

charity through government programs• Assisting with the implementation of ACA by expanding Medicaid is NOT

consistent with PRO-LIFE philosophy if valuing life through from natural birth to natural death

• Law empowers bureaucrats and political appointees – not doctors - to decide whether life-saving treatments are administered or not (primary care physicians, concerned)◦ Insurance Exchange commissions (state) must prohibit participating insurers from

paying for medical treatments “necessary to prevent patients' deaths in circumstances the Exchange determines are inappropriate or too costly”

◦ Federal Independent Payment Advisory Board “quality and efficiency” measures, doctors' decisions reviewed; must be “appropriate and cost effective”

LB577 Opponents can't talk about or “re-litigate” the ACA- Proponents, however, are free to mention for purpose of twisting implications and politicizing- States must actively choose to accept or reject. From NFIB v Sebelius : “The States are separate and independent sovereigns. Sometimes they have to act like it.”

LB577 Medicaid Expansion assists in implementing the ACA and is part of a comprehensive plan proponents want, but know is unpopular with Nebraskans

ACA is like a three-legged stool and is becoming increasingly unstableDesign was dependent on all three legs, always susceptible to de-stabilization

1. Individual mandate – upheld by Supreme Court as tax, but...• Dependent upon penalties, subsidies, premium supports via Exchanges • Dependent upon Medicaid to provide coverage to certain individuals

2. Medicaid – mandate ruled unconstitutional, now weakened• Dependent in part upon Exchanges which screen for Medicaid eligibility • Supreme Court ruling left many questions, points in dispute• Maintenance-of-effort provisions in dispute

3. Exchanges – written with expectation of STATE-based exchanges• “Federal-fall back” portions missing language found in State sections

• Funds not appropriated • Missing provisions for delivering penalties, subsidies : at least two

lawsuits have been filed against IRS for issuing rules absent legislative authority

• State Senators represent Nebraskans, not paid lobbyists or political parties– NE citizens have been consistently opposed to the ACA since the debate regarding it began (opinion polling 60%+ against since 2009)

• 2012 Election results in NE cannot be interpreted to constitute acceptance of ACA

Authors: Shelli Dawdy, Linda Rohman. Sharing encouraged if includes attribution & website http://grassrootsne.com

5/7, 5/21/2013

Nearly 70% of the money spent in Nebraska for Medicaid are spent to cover optional SERVICES and/or optional POPULATIONS.

Source of the chart below: Nebraska Department of Health and Human Services Division of Medicaid & Long-Term Care, Nebraska Medicaid Annual Report 2012 , page 5. While we may have missed it in our research, we haven't identified a chart displaying populations in as “user-friendly” a format, or a data source that makes creating one a feasible task at this time. If you're aware of either, we encourage you to contact us via the available form at http://wp.me/PyWxk-zI.

Authors: Shelli Dawdy, Linda Rohman. Sharing encouraged if includes attribution & website http://grassrootsne.com

ACA: A Growing Legal Morass – Legislators Should Be Cautious 5/7, 5/21/2013

The following is a list of pending court cases challenging aspects of the ACA or regulations issued by Federal agencies in association with the ACA.

Internal Revenue Service Rule: Challenge to Federal government's authority to deliver tax penalties and subsidies through Federal-fallback Exchanges; language doesn't exist in ACA text. Oklahoma v Sebelius, pending, U.S. District Court for the Eastern District of Oklahoma, Halbig et al v Sebelius et al (Competitive Enterprise Institute) , filed May 2, 2013, U.S. District Court for the District of Columbia

Origination Clause: ACA didn't originate in House as required by U.S. Constitution Sissel v U.S. Department of Health and Human Services, (Pacific Legal Institute), pending, U.S. District Court for the District of Columbia.

Employer Mandate: Doesn't fit in Congress' Taxing Power, is an impermissible penaltyLiberty University, et al., v Geithner, et al., Petition for rehearing granted by U.S. Supreme Court, November 26, 2012, remanded to U.S. Court of Appeals for the Fourth Circuit, Oral Arguments, May 15, 2013. (Case also challenges origination of bill and free exercise of religion.)

Independent Payment Advisory Board: Powers granted to this politically appointed board (one board member can be a quorum) are beyond Congress' authority; usurps powers of the legislative, executive, and judicial branches and violates Fourth, Fifth, and Ninth Amendments. Coons v. Geithner, (Goldwater Institute) pending, U.S. Court of Appeals for the Ninth Circuit.

Contraception Coverage Mandate: As of May 13, 2013, there are 52 cases pending in jurisdictions across the country regarding the ACA's requirement that employer's provide contraception coverage. See document for details and chart with status of cases: http://www.nwlc.org/sites/default/files/contraceptive_coverage_litigation_overview_5-13-2013.pdf

Past litigation, potential in future

Maintenance of Effort: Considerable potential for litigation. 2012, Maine, resulted in some litigation, troubling policy articulation and action by Federal DHHS that is contradictory and open for legal debate. MOE provisions are in the same section as the Medicaid mandate – ruled unconstitutional by the U.S. Supreme Court in June 2012 - making Federal DHHS' interpretation of law highly problematic.

Legal issues likely to increase over time

A National Law Review article summarizes the legal issues associated with the ACA, noting in particular regarding Medicaid: “While the individual mandate has generally received more attention, the issue regarding the Act’s Medicaid expansion has potentially far-reaching implications for states, and the Court’s decision will require further and continued consideration in order to fully understand the potential implications.”

A scholarly paper published in the Spring 2013 issue of Health Matrix: Journal of Law-Medicine while focused primarily on the IRS' rule issuance associated with the Federal-fallback Exchanges, points out a number of legal problems with the ACA that could spark future challenges.

Authors: Shelli Dawdy, Linda Rohman. Sharing encouraged if includes attribution & website http://grassrootsne.com