A Build Back Better provision punishing non-Medicaid expansion states may violate the Constitution, according to an expert’s op-ed.
Chris Jacobs, the founder and CEO of Juniper Research Group, wrote an op-ed for the Wall Street Journal, claiming that the behemoth Build Back Better Act’s (BBB) punishing of mostly Republican, non-Medicaid states is unconstitutional.
Seven states, including some that adopted Obamacare’s expansion of Medicaid and some that did not, use uncompensated-care pools to reimburse providers for charity treatment.
Section 30608 of BBB contains two provisions that would solely apply to non-expansion states. The first provision would reduce Medicare disproportionate-share hospital payments by 12.5 percent; this would offset the costs of hospitals that treat a high number of uninsured patients.
Some of these states have used Section 1115 Medicaid waivers, which would allow them to pay hospitals for uncompensated care using federal funding. BBB would bar non-expansion states from reimbursing hospitals for uncompensated care provided to patients that would be eligible for Medicaid if the state expanded.
A Democrat summary of the legislation claims that Section 30608 would end “wasteful and duplicative payments” in non-expansion states.
However, Jacobs notes the problem with ending the federal funding for uncompensated care federal funding as the new Obamacare subsidies authorized under the BBB would expire in 2025, while the changes to the Medicaid payments are permanent.
Jacobs argues that this punishing of non-expansion states may violate the Constitution, specifically the Supreme Court’s 2012 decision NFIB v. Sebelius.
Supreme Court Chief Justice John Roberts wrote for three justices that Obamacare’s mandatory expansion of Medicaid violated the Constitution. Four more justices in a separate opinion agreed with that point, making it a majority holding of the court that created precedent for future disputes like this one.
Roberts wrote in his opinion, “What Congress is not free to do is to penalize States that choose not to participate in that new program” by “taking away their existing Medicaid funding.”
Jacobs contended that threatening existing Medicaid funding for non-expansion states would violate the Constitution. The healthcare expert noted that many states, such as Tennessee, Texas, and Florida, started their uncompensated-care pools before Obamacare’s Medicaid expansion went into full effect.
Sean Moran is a congressional reporter for Breitbart News. Follow him on Twitter @SeanMoran3.
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