In the 11th hour of the Trump administration, the Centers for Medicare & Medicaid Services broke the law when it granted the State of Texas an unprecedented 10-year extension on its Medicaid waiver without following federally required notice and comment processes. The CMS extension in January failed to give the public an adequate opportunity to provide input on Texas’ request that would have exposed significant concerns with the proposal.

When the Biden administration moved to correct this by rescinding the extension, Texas Attorney General Ken Paxton chose to file suit instead of working with CMS on considering a new application. The Agency notified the state in April of its decision and willingness to consider a new application for an extension before Texas would suffer any consequences. Nonetheless, Attorney General Paxton decided to file suit two months later seeking to reinstate the extension.

Texas’ arguments in this case fail to acknowledge an essential point: the Trump administration’s failure to allow public comment, as required by law, made the extension unlawful. The public has the right to have a voice in policies before such an extension is granted. The Trump administration overlooked serious legal and policy concerns with the extension, resulting in a decision that was unlawful from the outset.

Had the Trump-era CMS properly sought public input, it would have been forced to consider issues raised by individuals, communities, and advocates like 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.

Every Texan and two other organizations even specifically requested that CMS provide an opportunity to comment before the extension was granted. Instead, AG Paxton is in court to preserve the unlawful extension—which would have locked out public input for nearly a decade—and again prevent the people of Texas from having their say in how the state’s Medicaid system is run.

That’s why we represented Every Texan to file an amicus brief urging the court to reject Texas’s attempt to reinstate the unlawful extension of its Medicaid waiver. We filed our brief on July 27, 2021.

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.

John Lewis

Senior Counsel

Litigating challenges to unlawful actions at the federal and state level.

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