Eight States Plan To File, Join Lawsuits Against Bush Administration Challenging New SCHIP Eligibility Rules

Main Category: Medicare / Medicaid / SCHIP
Also Included In: Medical Malpractice / Litigation
Article Date: 03 Oct 2007 - 8:00 PDT

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New Jersey on Monday filed a lawsuit against the federal government, challenging new rules announced by the Bush administration that are designed to limit SCHIP enrollment, the Newark Star-Ledger reports (Howlett, Newark Star-Ledger, 10/2). New York, Maryland, Illinois and Washington state -- with amicus briefs from Arizona, California and New Hampshire -- will file a separate joint suit against the administration, according to New York Gov. Eliot Spitzer (D) (Kershaw, New York Times, 10/2). Under the rules, announced in August, states must demonstrate that they have enrolled at least 95% of children in the state in families with incomes below 200% of the federal poverty level who are eligible for Medicaid or SCHIP before expanding eligibility to children in families with incomes greater than 250% of the poverty level (Kaiser Daily Health Policy Report, 9/18).

The 21-page lawsuit -- filed in U.S. District Court in Trenton, N.J. -- claims that the Bush administration is trying to impose "mandatory, rigid and illegal" income limits on SCHIP beneficiaries by imposing "arbitrary and capricious" new rules on the program (Newark Star-Ledger, 10/2). The suit contends that CMS violated the law by not publishing a notice in the Federal Register and allowing for a public comment period before announcing the new regulations.

According to the lawsuit, written by New Jersey Attorney General Anne Milgram (D), the letter from CMS that announced the new rules is "a sudden and unfounded reversal of long-standing federal policy and nine years of express federal approval of New Jersey's SCHIP programs and procedures" (Lee, Washington Post, 10/2). The lawsuit also claims that the rules establish unreachable conditions (Jackson, Bergen Record, 10/2). The suit asks the court to block potential federal sanctions against New Jersey for continuing to insure children in higher-income tax brackets (Panaritis, Philadelphia Inquirer, 10/2).

Multi-State Suit
The multi-state lawsuit, to be filed in the U.S. District Court for the Southern District of New York, alleges that the rules overstep the federal government's authority to set income limits for SCHIP beneficiaries (Hester, AP/Los Angeles Times, 10/1). The states contend that the rules will either force children out of the program or leave states without the ability to cover "tens of thousands" of children who would be eligible, according to the New York Times. The new rules violate the original intent of the law that created the program in 1997, according to Spitzer (New York Times, 10/2).

Spitzer said that the legal challenge is necessary because it "sends a powerful and compelling message when the U.S. Congress, states across the nation and the public are so clearly committed to ensuring the families have access to affordable health care for their children" (AP/Los Angeles Times, 10/1).

CMS spokesperson Jeff Nelligan said, "We are confident that our requirements are appropriate and will be sustained in a court of law," adding, "Our chief goal with SCHIP is to ensure that the poorest kids and those with no health insurance are placed at the front of the line" (Drew, Baltimore Sun, 10/2).

State Officials' Comments
Maryland Gov. Martin O'Malley (D) said, "It is time for President Bush to do his part, join the consensus and invest dollars in protecting the health of our children here at home" (AP/Washington Times, 10/2). Jeanine L'Ecuyer, press aide to Arizona Gov. Janet Napolitano (D), said that while Arizona is not affected by the enrollment rules, political conditions might exist in the future in which the state would like to enroll children in families with higher incomes (Fischer, Capital Media/Arizona Daily Star, 10/2).

Washington Gov. Chris Gregoire (D) said the states filing the lawsuit do not believe that the 95% enrollment mandate is "achievable," adding that it "was put in place to guarantee that we couldn't go above 250% of" the poverty level (Thomas, Seattle Times, 10/2). Gregoire said, "I'm not one who believes in a bunch of lawsuits," but the federal policy "has left us with no choice, we think, but that we have to turn to the courts" (Roesler, Spokane Spokesman-Review, 10/2).

DCCC Campaign
Democrats on Monday launched a multimedia campaign against eight politically vulnerable House Republicans who voted against SCHIP compromise legislation, the Kansas City Star reports (Helling, Kansas City Star, 10/1). The campaign, coordinated by the Democratic Congressional Campaign Committee, will use radio advertisements, as well as e-mails and automated phone calls that feature the mother of a child enrolled in SCHIP, according to The Hill.

Initial targets of the DCCC campaign are Reps. Steve Cabot (R-Ohio), Thelma Drake (R-Va.), Tom Feeney (R-Fla.), Sam Graves (R-Mo.), Joe Knollenberg (R-Mich.), Randy Kuhl (R-N.Y.), Jim Saxton (R-N.J.) and Tim Walberg (R-Mich.). Saxton was the only lawmaker whose district did not receive automated phone calls (Young, The Hill, 10/2). In addition, the American Federation of State, County and Municipal Employees, Service Employees International Union, Americans United for Change and USAction this week will launch "sustained grassroots efforts" to enlist additional support for SCHIP that will include 200 events in targeted districts, according to a spokesperson for Americans United (Wegner/Johnson, CongressDaily, 10/2).

National Republican Congressional Committee spokesperson Julie Shutley said that if Democrats "really wanted to extend SCHIP, they would be willing to work across the aisle to develop legislation that would be able to get signed by President Bush" (McArdle, Roll Call, 10/2). Democratic leaders are expected to send the SCHIP bill to the president on Tuesday (Wegner/Johnson, CongressDaily, 10/2).

Poll
A majority of U.S. residents support the compromise SCHIP bill that Bush has promised to veto and oppose fully funding Bush's $190 billion request for the wars in Iraq and Afghanistan, according to a Washington Post-ABC News poll, the Post reports. The poll sampled 1,114 individuals across the U.S. from Thursday to Sunday. The poll found that more than seven in 10 residents support the compromise SCHIP bill and 25% oppose the bill.

About half of those polled "strongly" support the expansion of the program while 17% are strongly against the expansion. About 81% of Democrats, 69% of independents and 61% of Republicans are in favor of the legislation. In addition, the poll found that 56% of those polled said they trust Democrats to solve health care issues and 26% trust Republicans (Cohen/Balz, Washington Post, 10/2).

The poll results are available online.

The Politico Examines Clinton's 1993 Health Reform Efforts, Relation to Children's Health Care Coverage
The Politico on Tuesday examined how "a look back at the fine print of the 1993 'HillaryCare' debacle shows there may be a grain of truth in the Republican suspicions" that the expansion of SCHIP would be "the first step toward federalized health care." An internal White House memo in 1993 showed that staff of then-first lady Sen. Hillary Rodham Clinton (D-N.Y.) viewed coverage of children as a "precursor" to universal health coverage. According to The Politico, "the legacy of 'HillaryCare' and the intense debate this fall over SCHIP shows that both parties are still trying to come to terms with the future of American health care" (Kady, The Politico, 10/2).

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