Bourgoin v. Sebelius

• Decision Date: 28 February 2013
• Docket Number: No. 2:13–cv–00055–JAW.,2:13–cv–00055–JAW.
• Citation: 928 F.Supp.2d 258
• Parties: Louis BOURGOIN, et al., Plaintiffs, v. Kathleen SEBELIUS, Secretary, United States Department of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Maine

928 F.Supp.2d 258

Louis BOURGOIN, et al., Plaintiffs,

v.Kathleen SEBELIUS, Secretary, United States Department of Health and Human Services, Defendant.

No. 2:13–cv–00055–JAW.

United States District Court,

D. Maine.

Feb. 28, 2013.

Alice Bers, Gill Deford, Willimantic, CT, Jack B. Comart, Maine Equal Justice Partners, Augusta, ME, Jane Perkins, National Health Law Program, Carrboro, NC, for Plaintiffs.

Caroline L. Wolverton, U.S. Department of Justice, Washington, DC, John G. Osborn, U.S. Attorney's Office, Portland, ME, for Defendant.

ORDER ON MOTION FOR A TEMPORARY RESTRAINING ORDER

JOHN A. WOODCOCK, JR., Chief Judge.

On January 7, 2013, Kathleen Sebelius, the Secretary of the United States Department of Health and Human Services, approved the state of Maine's proposal to tighten the eligibility requirements for MaineCare, Maine's Medicaid program. The Plaintiffs are disabled adults facing reduction or termination of benefits under the tightened eligibility requirements. They maintain that the Secretary's approval violates the “maintenance of effort” provision of the Patient Protection and Affordable Care Act (ACA) as it applies to disabled adults and to adults whose income, after taking into account certain “disregards” applied under state law, does not exceed 133% of the federal poverty line, and ask this Court issue a temporary restraining order (TRO) before March 1, 2013, vacating Secretary Sebelius's approval of the more restrictive eligibility requirements.

The Court declines to issue the TRO. The contested provisions of the Medicaid Act are unusually complex, voluminous, and dense. Although the Plaintiffs present a plausible interpretation of the ACA, so does the Secretary, and the Court cannot conclude with any confidence that one interpretation is more likely to succeed than the other. As the Plaintiffs have the burden to establish a likelihood of success on the merits, the balance tips against them. Furthermore, the record is too vague about the likelihood of irreparable harm to warrant a TRO. Finally, the balance of the equities and the public interest are impossible to fairly assess on this record within the extraordinary time constraints the Plaintiffs have imposed.

I. STATEMENT OF FACTSA. Procedural History

On February 20, 2013, Louis and Katherine Bourgoin, Donna Stevens, Heidi Brooks, and Katherine Sherrard filed a Complaint against Kathleen Sebelius, Secretary of the United States Department of Health and Human Services (DHHS), on behalf of themselves and all others similarly situated. Compl. (ECF No. 1). On February 21, 2013, the Plaintiffs filed a motion for class certification under Federal Rules of Civil Procedure 23(a) and 23(b)(2), stating that the class includes “over 6000 low-income recipients of health care benefits under MaineCare whose eligibility for Medicaid will be reduced or terminated on or after March 1, 2013.” Pls.' Mot. for Class Certification (ECF No. 13). The same day, the Plaintiffs moved for a TRO and preliminary injunction. Pls.' Mot. for TRO and Prelim. Inj. (ECF No. 14) ( Pls.' Mot.).

A summons was issued to Secretary Sebelius on February 20, 2013, and Caroline Lewis Wolverton, Senior Counsel with the United States Department of Justice, appeared on her behalf the next day; Assistant United States Attorney John G. Osborn also appeared on behalf of the United States. Summons (ECF No. 9); Notice of Appearance by John G. Osborn (ECF No. 16); Notice of Appearance by Caroline L. Wolverton (ECF No. 18). The Court held a telephone conference on February 22, 2013. Minute Entry (ECF No. 20). During the conference, the Court set an expedited briefing schedule to allow for a ruling on the Plaintiffs' motion for a TRO by February 28, 2013. In accordance with the Court's expedited briefing schedule, Secretary Sebelius filed her opposition to the motion on February 26, 2013. Def.'s Opp'n to Pls.' Mot. for TRO and Prelim. Inj. (ECF No. 21) ( Def.'s Opp'n ). The Plaintiffs replied on February 27, 2013. Pls.' Reply in Support of Mot. for TRO and Prelim. Inj. (ECF No. 22) ( Pls.' Reply ).

B. The Plaintiffs' Allegations

The Plaintiffs' Complaint alleges the following:

1. Legal Framework

Title XIX of the Social Security Act establishes Medicaid, a jointly funded and administered federal and state program that provides medical assistance to certain low-income individuals. Compl. ¶ 18. Medicaid is implemented federally by DHHS; the Centers for Medicare & Medicaid Services (CMS) is the sub-department responsible for Medicaid. Id. ¶ 19.

State participation is optional, but states that choose to participate receive federal matching funds and must comply with the requirements of the federal Medicaid Act. Id. ¶ 20 (citing 42 U.S.C. § 1396, 42 C.F.R. §§ 430–484). Maine participates in Medicaid, calling its program MaineCare; MaineCare is administered by the Maine Department of Health and Human Services (MDHHS). Id. ¶ 21.

States that participate in Medicaid must extend eligibility to certain population groups and must provide beneficiaries with certain benefits. Id. ¶¶ 23–24. In particular, participating states must help certain beneficiaries pay for premiums, deductibles, co-payments, and co-insurance amounts under Medicare, a federal health insurance program for the elderly and disabled. Id. ¶ 25. Medicare is divided into four primary parts, three of which are relevant here: Part A covers hospitals; Part B, physicians and other services; and Part D, prescription drugs. Id. ¶¶ 2, 49. The Medicaid Act requires participating states to provide this type of help to three groups of beneficiaries: “Qualified Medicare Beneficiaries” (QMBs), “Specified Low Income Medicare Beneficiaries” (SLMBs), and “Qualified Individuals” (QIs). Id. ¶¶ 26–28.

Eligibility for one of these groups depends on, among other things, an applicant's income.¹ To qualify as a QMB, an applicant must have “countable income” at or below 100% of the federal poverty level (FPL). Id. ¶ 26. To qualify as a SLMB, an applicant must have countable income from 101% to 120% of the FPL. Id. ¶ 27. To qualify as a QI, an applicant must have countable income from 121% to 135% of the FPL. Id. ¶ 28. States may limit the number of QIs based on federal funding. Id.

For QMBs, participating states must pay Medicare Part A and Part B premiums as well as non-covered medical deductibles, co-payments, and coinsurance costs. Id. ¶ 26. For SLMBs and QIs, participating states must pay Medicare Part B premiums. Id. ¶¶ 27–28.

“Countable income” rather than gross income is the figure used to determine Medicaid eligibility. See id. ¶ 29. Countable income is calculated by subtracting certain “disregards” from gross income. Id. Federal law sets a floor on the amount of disregards that a participating state must apply, but states may disregard greater amounts or different sources of income; the effect of a greater disregard is to expand Medicaid eligibility in the state. Id. ¶¶ 29–31.

On March 23, 2010, the ACA was signed into law. The ACA contains a “maintenance of effort” requirement, which generally prohibits participating states from making their eligibility standards, methodologies, or procedures more restrictive between March 23, 2010, and the date that the Secretary of DHHS determines the state's health insurance exchange is fully operational. Id. ¶ 32; 42 U.S.C. § 1396a(gg)(1). The maintenance of effort requirement contains an exception with respect to non-pregnant, non-disabled adults whose income exceeds 133% of the FPL; to use the exception, a participating state must certify to the Secretary of DHHS that it has or projects to have a budget deficit. Id. ¶ 37; 42 U.S.C. § 1396a(gg)(3).

2. The Disputed State Plan Amendment

On March 23, 2010, Maine calculated countable income by applying an additional disregard amount equal to 50% of the FPL.² Subsequently, however, the Maine Legislature passed a law authorizing MDHHS to restrict MaineCare eligibility contingent on receiving from CMS a written waiver of the maintenance of effort requirements or a written notification that such a waiver is not necessary. 2011 Me. Laws 657, §§ HH–2, HH–3. On December 20, 2011, the Commissioner of MDHHS submitted a letter to Secretary Sebelius certifying a budget deficit in state fiscal year 2013. Compl. ¶ 39. On August 1, 2012, the Commissioner submitted a State Plan Amendment (SPA) to CMS seeking approval. Id. ¶ 40. On January 7, 2013, CMS approved an amendment that would reduce the additional disregard from 50% of the FPL to 40% of the FPL. ³Id. ¶ 41; see Pls.' Mot. Attach. 3, Transmittal and Notice of Approval of State Plan Material (Approval Date Jan. 7, 2013) (ECF No. 14–3). The approved SPA is set to take effect March 1, 2013. Compl. ¶ 42.

3. The Named Plaintiffs

a. Louis and Katherine Bourgoin

Louis Bourgoin, age 67, lives with his wife Katherine, age 69, in Lewiston, Maine. Compl. ¶ 43. Mr. Bourgoin's income consists of $1334 per month in Social Security benefits. Id. Mrs. Bourgoin receives $829 per month in Social Security benefits and $289.22 from a pension. Id. The Bourgoins' total income is $2452 per month. Id. The Complaint alleges that they use this income to pay their normal living expenses and have insufficient income and resources to meet their medical care expenses. Id.

Mr. Bourgoin is disabled, has been diagnosed with incurable and terminal Stage 4 liver cancer that has spread to his stomach, and is undergoing chemotherapy and other treatments and may need surgery. Id. ¶¶ 44–45. His illness and treatment takes up most of his time and prevents him from working. Mrs. Bourgoin is also disabled and is recovering from breast cancer; she takes medication for this purpose and for back problems. Id. ¶¶ 46–47. Mrs. Bourgoin last worked part-time in 2009 as a housekeeper in a nursing home, but stopped working due to her health, which continues to decline. Id. ¶ 48.

The Bourgoins are both enrolled in Medicare and MaineCare and qualify as QIs;...