6008 Amendments

H.R. 2617, sec. 5131 (enrolled version)

BILLS-117hr2617enr

5131

Omnibus bill language, released December 20, 2022, see Division FF, title V, subtitle D, sec. 5131, pages 3854-66

JRQ121922

Subtitle D

Explanatory language for Title V

FY 2023 Omnibus summary DRAFT 12.20.2022 Title V

[other explanatory language?]

CMS “unwinding” memo, January 5, 2023

cib010523_1.key dates

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Coronavirus federalism materials

Letter to Secretary Azar from Democratic AGs, April 3, 2020

CA NC COVID-19 healthcare exchange letter plus IA

6008

Families First Coronavirus Response Act, Pub. L. 116-127

PLAW-116publ127

Section 6008

6008

Section 6008, highlighting “such benefits”

6008 — such benefits

CMS FAQs, April 13, 2020

covid-19-section-6008-CARES-faqs_1

CMS FAQs, June 30, 2020

covid-19-new-faqs

National Health Law Program, The Maintenance of Effort Provision Protects Services, August 10, 2020

MOE-1-pager

CMS and other agencies, Additional Policy and Regulatory Revisions in Response to the COVID–19 Public Health Emergency, 85 Fed. Reg. 71,142 (Nov. 6, 2020)

2020-24332-1

CMS fact sheet and power point

covid-19-tech-factsheet-ifc-433400

allstatecall-20201029

Families USA analysis, November 17, 2020

MCD-463_Trump-Admin-and-Medicaid-Cuts-Issue-Brief_v2-12-8-20

Stimulus bill/omnibus bill, as released Dec. 21, 2020

BILLS-116HR133SA-RCP-116-68

Explanation of the Labor/HHS omnibus bill provisions, released Dec. 21, 2020

BILLS-116RCP68-JES-DIVISION-H

Explanation of the COVID-19 stimulus provisions, released Dec. 21, 2020

Summary of H.R. 133 Coronavirus Relief Provisions

Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale Law Journal 534 (2011)

1032_qcrpe69v

What is more, the Supreme Court has suggested that the federalism clear-statement rule is of limited applicability when a federal regulatory regime is enforced through a statutory cooperative-federalism framework, as Section 7411(d) is. See AT&T Corp. v. Iowa Util. Board, 525 U.S. 366, 378 n.6 (1999) (noting appeals to States’ rights as “most peculiar” in the context of “a federal program administered by 50 independent state agencies”); see also Alaska Dep’t of Env’t Conservation v. EPA, 540 U.S. 461 (2004) (declining to adopt dissent’s proposed clear-statement rule for federal constraints on state implementation decisions in cooperative-federalism program). See generally Abbe Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 YALE L.J. 534, 555–556 (2011).

American Lung Ass’n v. EPA, Nos. 19-1140 et al. (D.C. Cir., Jan. 19, 2021), slip op. at 94

19-1140-1880546

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Carr v. Becerra, No. 3:22-cv-988 (D. Conn., filed August 3, 2022)

Complaint

merged_74147_-1-1666729403

Motion/memo for TRO, August 3, 2022

merged_94765_-1-1666729427

08/08/2022 19 ORDER: As set forth on the record during today’s conference, and consented to by the parties, by close of business today the defendant shall file on the docket a summary of its position as to the enforcement of 42 C.F.R. § 433.400(c)(2)(i)(B) as to Ms. Moore and Ms. Carr and what it has communicated to the State of Connecticut as to the same.

The defendant’s opposition to the plaintiffs’ motion for preliminary injunction shall be filed by 9/8/22. The plaintiffs’ reply brief shall be filed by 9/19. The Court will hold an evidentiary hearing on the plaintiffs’ motion for preliminary injunction on 9/27 at 9:30 am in Courtroom 3. To the extent necessary, the hearing will continue to 9/28.

Prior to 9/20, the parties shall confer regarding witnesses and exhibits for the hearing. By 5:00 PM on 9/20, the parties shall jointly file their witness and exhibit lists, and they shall indicate any objections the parties have to witnesses or exhibits. By noon on 9/22, the parties shall deliver to chambers two courtesy copies of all exhibits, each placed in a three-ring binder with a copy of the exhibit list at the front of the binder and each exhibit separately tabbed. The parties shall deliver the original set of exhibits along with an exhibit list to the Courtroom Deputy.

Signed by Judge Michael P. Shea on 8/8/22. (Constantine, A.) (Entered: 08/08/2022)

US notice re nonenforcement against Connecticut, August 8, 2022

Carr US notice re non enforcement v CT 8 8 22

08/08/2022 Set Deadlines as to 3 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction MOTION for Preliminary Injunction. Responses due by 9/8/2022; Reply brief due by 9/19/2022 (Johnson, D.) (Entered: 08/11/2022)
08/08/2022 27 NOTICE of Evidentiary Hearing on Motion re: 3 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction MOTION for Preliminary Injunction. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION.

Motion Hearing set for 9/27/2022 09:30 AM in Courtroom Three, 450 Main St., Hartford, CT before Judge Michael P. Shea
Signed by Judge Michael P. Shea on 8/8/22.(Johnson, D.) (Entered: 08/11/2022)

Amended complaint, August 26, 2022

Carr amended complaint 8 26

Motion for class certification, August 26, 2022

merged_39579_-1-1666729892

US opposition to TRO, September 8, 2022

Carr US TRO op 9 8

09/09/2022 47 NOTICE of Hearing on Motion re: 3 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction MOTION for Preliminary Injunction, 44 MOTION to Certify Class of Plaintiffs Nationwide. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION.

Motion Hearing set for 12/2/2022, 12/5/22, 12/6/22 at 09:00 AM in Courtroom Three, 450 Main St., Hartford, CT before Judge Michael P. Shea.
Signed by Judge Michael P. Shea on 9/9/22.(Johnson, D.) (Entered: 09/12/2022)

09/10/2022 46 ORDER: Because of the Court’s trial schedule, including a currently ongoing trial that is taking longer than expected, and the Court’s other commitments, it is necessary to postpone the hearing on the plaintiffs’ motion for preliminary injunction. In addition, the Court notes that the plaintiffs recently filed a motion for class certification and finds that it would be in the interest of judicial economy to consolidate the hearing on that motion with the hearing on the motion for preliminary injunction. Further, a continuance of both hearings will give the parties an opportunity to conduct at least limited discovery prior to the hearing, which should enable the parties to conduct a more efficient and informative hearing. Accordingly, the Court hereby vacates its order (ECF No. 19 ) scheduling the hearing on the preliminary injunction motion for September 27 and 28, 2022, and schedules a consolidated hearing on the motions for preliminary injunction and class certification for December 2, 5, and 6, 2022. Proceedings will begin at 9am and conclude at 4pm. If the parties, after meeting and conferring, believe that the hearing is likely to be be concluded in two days, they shall filed a notice on the docket so indicating at least 14 days before the hearing. In that case, the Court will hold the hearing on December 5 and 6, 2022. The parties shall exchange exhibit and witness lists no later than 7 days before the hearing. They shall file such lists, with any objections noted by the adverse party and the legal grounds for such objections, on the docket three days before the hearing. They shall also each deliver to chambers two sets of exhibits in a three ring binder for the Court and the law clerk. The Court encourages the parties to work together to conduct any necessary discovery before the hearing.

Signed by Judge Michael P. Shea on 9/10/22. (Constantine, A.) (Entered: 09/10/2022)

Reply supporting preliminary injunction, September 19, 2022

merged_33858_-1-1666730232

Second Toubman declaration, September 19, 2022

Carr Toubman 2d af 9 19

US opposition to class certification, September 26, 2022

Carr US class cert op 9 26

09/29/2022 59 ORDER: The emergency motion for referral to a U.S. Magistrate Judge (ECF No. 57) and motion for modification of scheduling order (ECF No. 49) are DENIED, and the Emergency Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 3) — but NOT the motion for class certification (ECF No. 44) — is hereby referred for adjudication to United States District Judge Omar A. Williams, who is acting as duty judge in the Hartford seat of Court for the month of October. Shortly after this case was filed, this Court held a telephonic status conference on August 8, 2022, to discuss the motion for temporary restraining order and preliminary injunction. (See ECF Nos. 18 and 19.) At that conference, Defendant’s counsel stated, and confirmed in a notice filed after the conference (ECF No. 20), that the Defendant would inform the State of Connecticut that the Defendant would not enforce the challenged Interim Final Rule with respect to the two plaintiffs who were then seeking injunctive relief “until at least 15 days after the Court resolves the motion for preliminary injunction.” (ECF No. 20.) At the time, there were a total of three plaintiffs, all Connecticut residents. On August 26, 2022, however, the plaintiffs filed an amended class action complaint adding two more plaintiffs, one a resident of Nebraska and the other a resident of Delaware, and also sought, for the first time, to represent a nationwide class of similarly situated persons. (On the same day, plaintiffs filed a motion to certify the class, which is not yet fully briefed.) At a status conference held on September 20, 2022, the undersigned informed counsel that his trial schedule — including a murder trial and two long-scheduled and large civil trials, as well as a September trial that took longer than expected — would not permit the undersigned to devote the attention needed to these motions until at least December 5, and even then that the undersigned could not realistically finalize a ruling (or rulings) until January, 2023. Because Plaintiffs’ counsel indicated that urgent action was needed on the motion for temporary restraining order and preliminary injunction, including for the two new plaintiffs who reside outside Connecticut (see, e.g., ECF No. 49 at 2-3), the Court offered the parties two alternative options: (1) consenting to the jurisdiction of a U.S. Magistrate Judge for purposes of the entire case, which, as the Court informed counsel, would likely result in a more expeditious disposition than the undersigned could manage in light of his trial schedule; and (2) the undersigned’s referring this case to a U.S. Magistrate Judge for a recommended ruling on pending motions. The undersigned informed the parties that, with regard to option #1, they were not required to consent, and that option #2, though it might save some time by sparing the undersigned the need to conduct a hearing and providing the undersigned with recommendations, was not ideal from the standpoint of judicial economy and might not result in a final ruling significantly sooner than the undersigned’s own schedule would permit. Thereafter, the Defendant indicated that he would not consent to the jurisdiction of a Magistrate Judge. Upon further reflection, and after checking with the duty judge for the month of October, Judge Omar A. Williams, the undersigned has determined that the most efficient way to handle this case under these unusual circumstances — and the one with the highest likelihood of securing an expeditious disposition on the pending motion for temporary restraining order and preliminary injunction — is to refer that motion, and that motion alone, to Judge Williams for decision. That motion, if it has merit, is the most urgent matter pending in the case, and the Court’s duty judge system is designed to offer an alternative for handling urgent matters — but only urgent matters — when the presiding district judge is unavailable on an urgent basis, as is the case here. Although the undersigned previously found that it would be in the interest of judicial economy to consolidate the hearing on the motion for preliminary injunction with a hearing on the motion for class certification, the undersigned has reconsidered that determination. While the plaintiffs have suggested that all class members are facing the same irreparable harm, that remains to be seen, and the motion for class certification does not attach any evidence from prospective class members (other than the named plaintiffs themselves) showing that their current situations evince irreparable harm; this point is salient because the Interim Final Rule being challenged was adopted almost two years ago, and the declarations filed by the named plaintiffs suggest that the rule may have had different impacts on them at different times (to the extent it caused the States involved to send the notices described in the declarations). While that does not necessarily mean that all prospective class members cannot show irreparable harm, it likely does mean that there would need to be some showing to that effect for the Court to grant injunctive relief on a class-wide basis. For all these reasons, the Court will not refer the motion for class certification to Judge Williams at this time but will keep the December 5 hearing date in place to entertain argument on that motion. The undersigned thanks Judge Williams for stepping in to the handle the motion for injunctive relief with respect to the named plaintiffs.

Signed by Judge Michael P. Shea on 9/29/2022. (Davis, Christina) (Entered: 09/29/2022)

10/04/2022 60 ORDER. A hearing on the Emergency Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 3 ) will be held on October 26, 2022 at 10:00 A.M.. The parties shall exchange exhibit and witness lists no later than 7 days before the hearing. Three days before the hearing, they shall file on the docket such exhibit and witness lists, along with any objections noted by the adverse party (and the legal grounds therefor). Also, each party shall deliver to chambers two sets of exhibits in a three ring binder, for the court and for the law clerk. Signed by Judge Omar A. Williams on 10/4/2022. (Mamillapalli, S.). (Entered: 10/04/2022)

US motion to extend time to respond to complaint, October 6, 2022

Carr US xt mo respond complaint 10 6

Plaintiffs’ opposition to extension, October 7, 2022

Carr pltf op US xt 10 7

Plaintiffs’ reply supporting class certification, October 11, 2022

Carr reply supporting class cert 10 11

[]

Hearing minutes, October 26, 2022

Carr hearing minutes 10 26

10/28/2022 76 Minute Entry for proceedings held before Judge Omar Williams: Motion Hearing and Evidentiary Hearing held on 10/26/2022 in person and via Zoom. Total Time: 5 hours, 5 minutes (Motion Hearing: 1 hour, 35 minutes; Evidentiary Hearing: 3 hours, 30 minutes). Court reporter: Catherine Cullen. Attorneys Sheldon Toubman and Deborah Dorfman appeared for Plaintiffs. Attorneys Madeline McMahon and Michelle McConaghy appeared for Defendant. The court heard testimony from Plaintiffs Brenda Moore, Deborah Carr, Mary Shaw, and Carol Katz. The court also heard oral argument on the pending motion for a preliminary injunction, see ECF No. 3 , and took the matter under advisement. An order on the motion will issue separately. (Wagner, Rebecca) (Entered: 10/28/2022)

Carr ruling, November 7, 2022

Carr ruling 11 7 22

Carr motion for expedited resolution, November 10, 2022

Carr mo exped 11 10

Carr plaintiff notice re public health emergency, November 15, 2022

Carr pltf notice re phe 11 15

11/17/2022 81 ORDER: On December 5, 2022, as previously indicated (ECF Nos. 56 & 59), the Court will hear argument on the plaintiffs’ motion for class certification. The Court will also hear argument on that day on the question whether, should the Court certify a class, the injunction granted in Judge Williams’s order, or some other injunctive relief requested by the Plaintiffs, should be extended to the entire class. Should the Government wish to file a supplemental brief on that question, it shall do so on or before the end of the day on November 25, 2022; any such brief shall not exceed 15 pages. Should the plaintiffs wish to file a response, any such response shall be filed by the end of the day on December 2, 2022; any such response shall be confined to 15 pages. Because this order addresses the topics raised in the motion for expedited resolution (ECF No. 79 ), that motion is DENIED as moot.

Signed by Judge Michael P. Shea on 11/17/22. (Constantine, A.) (Entered: 11/17/2022)

11/21/2022 83 ORDER: The defendant’s consented-to motion (ECF No. 82 ) for an extension of time until December 12, 2022 in which to respond to the amended complaint is granted. The Court notes further that, at the oral argument on December 5, 2022, the parties should also be prepared to discuss the other ground for the plaintiffs’ motion for a preliminary injunction, i.e., whether the interim rule was based on a correct or a permissible interpretation of the statute. If the parties wish to address that issue further in their supplemental briefs, they may do so, in which case they may have an additional 5 pages each, with no more than 5 pages devoted to the statutory issue.

Signed by Judge Michael P. Shea on 11/21/22. (Constantine, A.) (Entered: 11/21/2022)

US response re notice, November 23, 2022

Carr US response re notice of PHE 11 23

US supplemental brief, November 25, 2022

merged_97163_-1-1669572230

12/01/2022 88 NOTICE: At the argument on Monday, counsel shall be prepared to address all issues raised by their briefs. In addition, counsel shall be prepared to address the following questions, which arise from the briefs filed in connection with the motion for preliminary injunction, since those briefs are incorporated by reference in the briefs on the class certification issue: The plaintiffs’ brief in support of the motion for preliminary injunction states that “CMS officials made clear the terminations under the IFR were in fact mandatory in response to a question from a Connecticut Medicaid official.” (ECF No. 3-1 at 19.) And attached to this brief is an email from CMS that appears to substantiate this statement. ECF No. 3-5 at 190. Further, the Government states in its brief opposing class certification that “[t]he [Interim Final] Rule also interprets [Section 6008(b)(3) of the FFCRA] to mean that, subject to certain limitations, when a beneficiary loses eligibility for one Medicaid Group and becomes eligible for another, states are required to move that beneficiary to the coverage group for which she is eligible.” ECF No. 58 at 6 (emphasis added). This raises the following questions: What language in Section 6008(3) of the FFCRA (or any other statute) is the Secretary relying on to support his interpretation that a State is required to terminate full Medicaid benefits (or whatever level of benefits applied when the beneficiary enrolled) for a beneficiary once the State determines that the beneficiary is eligible for coverage under a Medicare Savings Program? By the same token, what language in the IFR itself, i.e., 42 C.F.R. Sec. 433.400(c)(2), supports the view that a State is required to terminate full Medicaid benefits (or whatever level of benefits applied when the beneficiary enrolled) for a beneficiary once the State determines that the beneficiary is eligible for coverage under a Medicare Savings Program? And is the view expressed by the Government about such a requirement the “authoritative” or “official position” of HHS, for purposes of determining whether to apply so-called Auer deference to HHS’s reading of its own regulation? See Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019).

Signed by Judge Michael P. Shea on 12/1/22. (Constantine, A.) (Entered: 12/01/2022)

Response to supplemental opposition, December 2, 2022

Carr pltf response supp op 12 2 22

Minute entry, December 5, 2022

Carr minute entry 12 5 22

Answer, December 12, 2022

Carr answer 12 12 22

Plaintiffs’ notice re new legislation, December 30, 2022

Carr pltf notice re legisl 12 30 22

US response re new legislation, January 4, 2023

Carr US response re legisl 1 4 23

01/06/2023 99 Minute Entry for proceedings held before Judge Michael P. Shea: Telephonic Status Conference held on 1/6/2023. 53 minutes(Court Reporter Julie Monette.) (Johnson, D.) (Entered: 01/09/2023)

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A.M.C. v. Smith, No. 3:20-cv-240 (M.D. Tenn., filed March 19, 2020)

Complaint

AMC complaint

[]

Defendant’s motion for leave to file supplemental brief, with exhibits including CMS certification, January 19, 2021

AMC def mo leave file supplemental 1 19 21

Defendant’s notice of change in 6008 policy, January 19, 2021

AMC CMS notice re policy change 1 19 2021

Order denying pending motions w/o prejudice and setting further discovery, February 19, 2021

amc order denying motions w o prejudice

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Order denying motion to dismiss, March 4, 2022

AMC dism denial 3 4 22

[]

Order partly granting class certification but denying preliminary injunction, August 9, 2022

AMC class cert and pi opinion 8 9 22

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Smith v. Miller, 665 F.2d 172 (7th Cir. 1981)

Smith v Miller

Fortin v Mass. Dep’t of Public Welfare, 692 F.2d 790 (1st Cir. 1982)

Fortin v Commissioner of Massachusetts Dept of Public Welfare

Alexander v. Hill, 707 F.2d 780 (4th Cir. 1983)

Alexander v Hill

Salazar v. District of Columbia, 954 F.Supp. 278 (D. D.C. 1996)

Salazar v District of Columbia