Health Care Advocates Argue Biden Admin was Correct to Revoke Unlawful 11th Hour Trump-era Waiver Extension

Trump Centers for Medicare and Medicaid Services Broke Law By Granting Unprecedented 10-Year Waiver Extension Without Public Input

Austin, TX — Today, Every Texan, represented by Democracy Forward, filed an amicus brief urging a federal court to reject Texas Attorney General Ken Paxton’s attempt to reinstate the unlawful extension of the state’s Section 1115 Medicaid waiver. In extending the Medicaid waiver for an unprecedented period of time, the Trump-era Centers for Medicare and Medicaid Services (CMS) broke the law, including by denying the public a chance to provide input that would have exposed significant concerns with the proposal. The brief filed today urges the court to reject Texas’s motion for a preliminary injunction.

In its brief, Every Texan makes clear that the unlawful extension of Texas’s waiver prevented potential commenters like Every Texan from raising serious legal and policy concerns—and locked the public out of an important policy matter for most of the next decade. Indeed, Every Texan and two other organizations specifically requested that CMS provide an opportunity to comment before the extension was granted.

Had CMS sought public input, it would have been forced to consider issues raised by Every Texan on the extension proposal. For example, CMS would have been required to reasonably address comments that would have been submitted about:

  • The extraordinary needs of low-income and uninsured Texans;
  • The stark increase in unemployment caused by the COVID-19 pandemic; and
  • The need to shore up primary care networks and rural hospitals.

But CMS ignored the request to allow for comment. Given the importance of these issues, Every Texan explains “it is wholly untenable” for Texas “to claim that CMS’s error in failing to provide notice and comment was harmless.”

“It’s critical to ensure that state and federal officials hear the voices of all Texans whenever major and long-lasting decisions are made, especially about their access to health care,” said Every Texan Health & Wellness Program Director Anne Dunkelberg. “Medicaid touches millions of Texans every day, and the program’s future could help even more of our uninsured.”

In its brief, Every Texan also explains that:
  • CMS was not legally obligated to provide notice and comment before rescinding the unlawful extension—which Texas claims it needed to do. As the brief states, “[a]n agency cannot be required to engage in notice and comment before rescinding an order that was unlawfully issued without those procedures.”
  • Texas’s stated concerns about its reliance on the unlawful waiver extension are misplaced. As the brief explains, “[w]hatever reliance interests the State might possess, they are outweighed by the need to correct a legal error and allow the public a genuine opportunity to comment—particularly when the State will have another opportunity to seek an extension before suffering any consequences.”
  • When CMS’s new leadership rescinded the extension, it therefore righted a legal wrong. As Every Texan highlights, “governmental bodies cannot be permitted to exclude the public from participation for nearly a decade, especially when such weighty issues are at stake. Doing so would only encourage agencies and third parties to violate public participation requirements as to matters affecting the interests of millions of Americans.”

“CMS’s decision to revoke its unprecedented Trump-era extension of Texas’s Medicaid waiver was needed to right a legal wrong,” said Democracy Forward President and CEO Skye Perryman. “Attorney General Paxton’s defense of the unlawful extension—which locked out public input for a decade—is intended to prevent the people of Texas from having their say in how the state’s Medicaid system is run. CMS rightly moved to start the approval process over from scratch. We urge the court to reject Attorney General Paxton’s flawed legal arguments.”

Attorney General Paxton sued CMS on May 14 and filed a motion for a preliminary injunction on July 16. The case is currently pending consideration before the U.S. District Court for the Eastern District of Texas.

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Democracy Forward is a nonprofit legal organization founded in 2017 to litigate challenges to unlawful executive branch action on behalf of organizations, individuals, and municipalities. The organization has taken 650 legal actions and reversed dozens of harmful policies. Democracy Forward is expanding its work, building on its success to confront unlawful threats to democracy and social progress.

Since its founding in 1985, Every Texan (formerly the Center for Public Policy Priorities) has leveraged public policy to expand opportunity and equity for Texans of all backgrounds. Based in Austin, Texas, Every Texan is a nonprofit organization that researches, analyzes, and advocates for public policies to achieve equitable access to quality health care, food security, education, and good jobs. Learn more about how Every Texan is making Texas the best state to live in at everytexan.org.

Press Contacts

Megan Uzzell
Democracy Forward
(202) 701-1784
muzzell@democracyforward.org

Lola Vinson
Every Texan
(469) 559-2086
vinson@everytexan.org