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Court Filing: Emergency Order to Enforce Nationwide Injunction

Plaintiffs in National Class Action File Motion for an Emergency Order to Enforce Nationwide Injunction, Pushing HHS to Restore Medicaid Benefits and Ensure Fair Medicaid Enrollment Redeterminations for Older Adults and People with Disabilities

(March 1, 2023)—Yesterday, a federal judge in the U.S. District Court for the District of Connecticut was asked to grant an emergency order instructing the Department of Health and Human Services (HHS) to affirmatively take action to implement the Court’s January 31, 2023 nationwide preliminary injunction ruling ending the application of the illegal Trump-era Interim Final Rule (IFR) that has stripped vital Medicaid benefits away from hundreds of thousands of older adults and people with disabilities. The order, if granted, will also help eligible people stay enrolled in Medicaid during the nationwide Medicaid continuous coverage unwinding process.  

Under the proposed order, HHS must take several immediate actions to stop the ongoing harm caused by the IFR. Firstly, HHS must inform states via letter and an All-State Call that they are not permitted to drop anyone covered by the class certification and preliminary injunction order from Medicaid coverage during the preliminary injunction. Secondly, HHS must prominently re-post the original Families First Coronavirus Response Act guidance on the agency’s website. Thirdly, it must highlight where this information has been posted on their website and remind states of their obligation, for people already cut off of Medicaid under the IFR, to automatically restore coverage where feasible and retroactively. Lastly, HHS must remind states that their eligibility for supplemental Medicaid funding depends on their compliance with the agency’s previous guidance for implementing the Families First Coronavirus Response Act, including the duty to retroactively reinstate class members to their dates of termination. 

If granted, the emergency order will help ensure that people who lost access to care because of the Trump-era rule will be reenrolled in their state’s Medicaid program and have their eligibility seamlessly redetermined as part of the larger coverage unwinding, ensuring on average several months of additional coverage and, possibly, a finding of ongoing eligibility. 

“The Center for Medicare & Medicaid Services (CMS) is the HHS agency charged with guiding the state Medicaid agencies in complying with all federal Medicaid rules. But, despite numerous calls from those agencies for guidance about a federal injunction halting its November 2020 rule that had cut hundreds of thousands of elderly and disabled patients from the Medicaid rolls, it has failed to provide any guidance whatsoever about how to comply with the injunction, ” said Carol Wong of Justice in Aging. 

“The court,” noted Harvey Reiter of Stinson LLP, “had directed CMS to inform states that it had been enjoined from applying that rule AND that its ‘previous guidance’ on coverage was back in effect. CMS had previously scrubbed that ‘previous guidance’ from its website, however. And rather than re-post it or answer questions about it, CMS directed the state agencies to consult their own attorneys about what CMS’s policies mean!” 

“We were expecting CMS to provide this guidance without delay, especially since the newly restored earlier guidance directed states to restore Medicaid coverage automatically, if feasible, and retroactively to the date coverage was wrongfully terminated, ” added Miriam Delaney Heard of the National Health Law Program. 
 
“Instead,” remarked Sheldon Toubman, with Disability Rights CT, “CMS appears to be dragging its feet, even disregarding entreaties by members of Congress, making it necessary for us to file this emergency motion today.  We are hoping for quick relief from the Court, which we should not have had to ask for.”

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