• The “adult” Medicaid expansion also includes some kids

    The Leavitt Report is hardly alone when they mischaracterize the new Medicaid expansion as the “adult” expansion.  In fact, new section 42 USC 1396a(a)(10)(i)(VIII) expands eligibility to all non-elderly (under 65) persons up to 133% FPL who are not otherwise eligible.  Since children aged 6-18 are only categorically eligible up to 100% FPL, the Medicaid expansion also covers kids aged 6-18 between 100% and 133% FPL.

    One source of the confusion is Justice Roberts, who consistently referred to the Medicaid expansion (42 U.S.C. § 1396a(a)(10)(i)(VIII)) as the “adult” expansion in the NFIB decision.

    Raises an interesting question:  if a state exercises the Red State Option for adults, do they have to also cut off the kids?

    For details, see Part II.D of my paper with Huberfeld & Weeks Leonard.


    UPDATE:  see the helpful comment by Joe & my response.  These kids were covered by a different subsection of PPACA 2001 (a) [(a)(5) rather than (a)(1)].  Still leaves open the question about which precise parts of PPACA Title II are now optional.

    • Kevin
      Cliff note version…

      Does CHIP supersede?


      • CHIP is designed to cover kids not covered by Medicaid; so I take your comment to mean that some of these kids who would have transferred to Medicaid under the section viii expansion will now stay in CHIP.

        Some CHIP basics:

    • I think Justice Roberts had it right in this case–the expansion does not include kids. It does take a tricky bit of statutory analysis to sort it out, though.

      As Kevin mentions, the expansion is to certain individuals who are not otherwise eligible. While they are not today, kids age 6-18 up to 133% of FPL will be otherwise eligible in 2014.

      Why? ACA section 2001(a)(5)(B) amends 42 USC 1396a(l)(2)(C) to change the upper limit for Medicaid eligibility for kids in this age group from 100% to 133% FPL effective Jan. 1, 2014.

      Paragraph (l)(2)(C) now reads:
      (C) For purposes of paragraph (1) with respect to individuals described in subparagraph (D) of that paragraph [(D) describes those aged 6-18], the State shall establish an income level which is equal to 100 percent (or, beginning January 1, 2014, 133 percent) of the income official poverty line described in subparagraph (A) applicable to a family of the size involved.

      So far from cutting off these kids, regardless of whether a state exercises its flexibility not to expand, it still must switch these children from CHIP eligibility into Medicaid. (Though the state will continue to receive the enhanced CHIP match rate–the explanation for that requires even more statutory swimming.)

      See http://ccf.georgetown.edu/medicaid-2/aca-double-win-states-families-aligning-medicaid-coverage-children-ages/

      • You are right that the conforming amendments in PPACA 2001(a)(5) raised the income level to 133% FPL as of Jan. 1, 2014 for kids 6-18. Since that expansion occurs via subclause VII, it takes priority over subclause VIII. Your technical point is correct – thanks.

        Of course, Roberts didn’t say which parts of PPACA Title II are now optional. He never defined what “the expansion” was.

        It is clear that he made – at the very least – parts of section 2001(a) optional. Perhaps section 2001(a)(5) (the section you rely on) survived. It is hard to know, but the argument that it should survive is stronger with the observation you made.

        • Perhaps this is why Roberts consistently refers to the “adult” expansion–he wants specifically to exclude other eligibility changes like the one for these children.

          The point in your paper certainly stands–other significant eligibility changes don’t seem to trigger the same review in the decision.

    • Great observation. It’s interesting to see that 10 states currently offer Medicaid to all children at levels above 138% FPL. These states will presumably just experience the expansion in their adult populations.

      http://www.kff.org/medicaid/upload/7993-02.pdf (Table 1)

      • @Josh
        Thanks for the link. From the brief:

        “The ACA preserves this strong base of children’s
        coverage by requiring states to maintain
        eligibility and enrollment policies in place at
        the time reform was enacted (March 23,
        2010) until September 30, 2019 for children
        in both Medicaid and CHIP.”

        My read is current system for kids remains until 2019. I remember Jay Rockefeller, for reasons of self-interest and altruism, was against dismantling the CHIP program during 2009-10 ACA debate. He got a stay for a decade longer.