Paxton sues over revocation of Medicaid 1115 waiver

Someone please explain to me if this has any merit.

Best mugshot ever

Texas Attorney General Ken Paxton sued the Biden administration Friday to reinstate an eight-year extension to a federal health care funding agreement, worth billions of dollars annually and set to expire next year, that the state uses to help pay for health care for uninsured Texans.

Last month, federal health officials rescinded the Trump-era extension to the 1115 waiver agreement — which Texas has had with the U.S. Centers for Medicare and Medicaid Services since 2011 and is up for review every few years — and ordered Texas to collect public input, as the agreement requires, while it renegotiates a new extension beyond its current October 2022 expiration date.

The decision did not stop the funding in the current waiver, which will continue to provide $3.87 billion in annual funding for 2021 and 2022 to partly offset free care provided by Texas hospitals to the uninsured, and to pay for innovative health care projects that serve low-income Texans, often for mental health services.

The extension, granted in the waning days of Donald Trump’s presidency, would have continued hospital reimbursements until September 2030 but allowed the innovation fund to expire.

In his lawsuit filed Friday, Paxton said the decision was a political move by President Joe Biden that was meant to force Texas to expand its Medicaid program under the Affordable Care Act of 2010.

Forcing Texas back to the drawing board on negotiations over the extension, which Paxton said would have amounted to $30 billion in federal funding through 2030, threatens to “destabilize” the programs the state funds through the waiver, he said.


The 1115 waiver was originally granted to Texas as a temporary funding bridge while the state developed its plan to expand its Medicaid program, but the U.S. Supreme Court ruled in 2012 that the ACA could not require states to do so — and Texas has since leaned on the 1115 waiver to help pay for care for the uninsured.

Supporters of Medicaid expansion have said that the state should utilize both 1115 waiver funding and expanded Medicaid eligibility, and have expressed confidence that the state would be able to negotiate the extension — with the required public input — before it expires.

“We have an attorney general and other state leaders who have made crystal clear the last few months and last few years that they have little interest in health care for working Texans — although they do have an obsession with filing lawsuits against the White House,” said Patrick Bresette, executive director of Children’s Defense Fund-Texas. “This misguided lawsuit is the cherry on top of a legislative session in which state leaders shot down all attempts to give an affordable health insurance option to janitors, cooks, grocery store clerks, and other Texans.”

“This would be a disaster for our state, and yet President Biden seems intent on thrusting his bloated model of government on everyone — including Texas,” he said in a statement Friday.

See here and here for some background, and here for a reminder that the Republicans have once again passed on the opportunity to fully expand Medicaid and make this issue moot. Let’s put aside the irony of a guy who is the lead attorney on a still-active case that would entirely kill the Affordable Care Act if he wins suing to keep federal funds flowing into Texas and ask the key question: This is a federal program, which requires federal approval. Doesn’t that mean that the federal government has some discretion here? If one accepts the premise that this move by the feds was purely capricious and driven by partisan motives, then sure, a lawsuit would be an appropriate remedy. On the other hand, if the feds reasonably believe that the extension, granted in the waning days of a President that gave little care to details and openly favored Republican states, was done in error, well, don’t they have the authority to correct that? I’m asking because I have no idea what the fine points of the law are here, and I have no reason to believe anything Ken Paxton says. That by itself doesn’t mean that the law couldn’t be on his side, though. I welcome any informed feedback on this. The Chron has more.

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2 Responses to Paxton sues over revocation of Medicaid 1115 waiver

  1. Manny says:

    Merit being pandering to the idiots, which can mostly be found in the Racist/Republican party.

  2. Kibitzer says:

    The gist: Political actions are political.– Duh. Not much of an argument here.

    And why are political motives for political decisions “ulterior”? Decisions such as a new Administration doing things differently in regard to waivers than a previous one, after an election that changed the control of the federal government, and the associated policy priorities and underlying normative values.

    In any event, political arguments rarely provide a proper basis for a lawsuit.

    It may not be worth getting into the intricacies of the legal arguments at this point — while we are waiting for a court ruling — so just a few throwaway comments in the interim on the framing of the issue by the instigator:

    “This disgusting and unlawful abuse of power aimed at sovereign states must end,” Paxton said.


    Paxton’s underlings routinely invokes “sovereign” immunity to defeat lawsuits by individuals who sue state agencies or seek to hold state office holders accountable. It’s a SCOTX-imposed doctrine that requires lower-level judges to deny plaintiffs a judicial remedy when the responsible party is a public official, officer, or employee of the state, except in very narrow circumstances. Many such lawsuits get dismissed without the merit ever being reached. It used to be the King that was sovereign vis-a-vis the people (subjects); now it’s the GOP-controlled State of Texas via-a-vis Texans.

    But that doesn’t make Texas sovereign in relation to the United States of America.

    The Supremacy Clause explicitly specifies that the US Constitution binds the judges in every state notwithstanding any state laws to the contrary. States can’t dictate to the federal government. State law cannot override federal law. The supremacy runs the other way.

    It’s really rich for Paxton to complain that the federal government is not subsidizing the Texas health care system in the manner he and his ilk prefer while pointing to the “sovereignty” of this state to validate the state-vs-feds umbrage. Nor is formal federal preemption even the issue here. It’s federal financial support to states, and the conditions attached to such federal aid.

    If you peruse the lengthy complaint, you will see that his actual *legal* arguments — as opposed to political grandstanding — are highly procedural in nature, involving the intricacies of administrative law and associated notice and comment requirements, along with arguments about the scope of authority and discretion of the principal defendant, and the sufficiency of rationales for federal agency action taken. The latter provides fodder for the “arbitrary and capricious” characterization of the waiver extension rescission.


    And it is, of course, all about continued receipt of federal bucks while insisting on the refusal to expand Medicaid: “Texas stands to lose billions of dollars in funding for vital healthcare services in mere months.” Ergo: “Defendants should be enjoined from rescinding the January 15 extension and thereby working a manifest injustice against millions of vulnerable Texans and the State itself.”


    “While the final 2021 biennial budget has not been finalized, it is expected to amount to approximately $125 billion per fiscal year. See generally Senate Bill 1. Of that, fully a quarter—over $30 billion—comes from federal Medicaid funding. Id. title 2.”


    “Even more troubling, reports since the letter suggest that there was an ulterior—and unconstitutional—motive behind the Administrator’s utter disregard of
    administrative procedural safeguards: to force Texas into expanding Medicaid under the Patient Protection and Affordable Care Act.”

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