THE RACES AND ISSUES HEALTHCARE LEADERS NEED TO WATCH ON ELECTION NIGHT

https://www.healthleadersmedia.com/strategy/races-and-issues-healthcare-leaders-need-watch-election-night

The 2018 midterm elections will decide the fate of numerous healthcare-related ballot measures as well as which leaders will shape health policy in the coming years.


KEY TAKEAWAYS

Issues to watch: Medicaid expansion in 4 states, a healthcare bond initiative in California, and the debate over preexisting condition protections.

Candidates to watch: Wisconsin Gov. Scott Walker, former Gov. Phil Bredesen, former HHS Secretary Donna Shalala, and others.

Healthcare has been an overarching issue for voters in the 2018 midterm election cycle, with many focusing on the future of the Affordable Care Act when it comes to national health policy but also taking stock of state and local ballot initiatives as well.

Several traditionally Republican states will decide whether to expand Medicaid under the ACA; staffing requirements for nurses are a hot-button topic in Massachusetts; and a major children’s hospital bond is on the table in California. 

Beyond the issues are the candidates, including many Republican leaders on Capitol Hill in tight races to defend their seats after voting to repeal and replace the ACA. At the state level, Republican governors and their attorneys general are having their healthcare records put to the test as Democrats make protecting preexisting conditions and rejecting Medicaid work requirements key parts of the campaign.

Here are the key issues and candidates healthcare leaders will be watching as results begin rolling in Tuesday evening, with voters determining the direction of healthcare policymaking for years to come.

MEDICAID EXPANSION IN 4 RED STATES

One year after voters approved Medicaid expansion in Maine, the first state to do so through a ballot initiative, four other states have the opportunity to join the Pine Tree State.

Montana: The push to extend Medicaid expansion in Montana before the legislative sunset at the end of the year is tied to another issue: a tobacco tax hike. The ballot measure, already the most expensive in Montana’s history, would levy an additional $2-per-pack tax on cigarettes to fund the Medicaid expansion which covers 100,000 persons.

Nebraska: Initiative 427 in traditionally conservative Nebraska, could extend Medicaid coverage to another 90,000 people. The legislation has been oft-discussed around the Cornhusker State, earning the endorsement of the Omaha World-Herald editorial board.

Idaho: Medicaid expansion has been one of the most talked about political items in Idaho throughout 2018. Nearly 62,000 Idahoans would be added to the program by Medicaid expansion, some rural hospitals have heralded the move as a financial lifeline, and outgoing Gov. Bruce Otter, a Republican, blessed the proposal last week.

Utah: Similar to Montana’s proposal, Utah’s opportunity to expand Medicaid in 2018 would be funded by a 0.15% increase to the state’s sales tax, excluding groceries. The measure could add about 150,000 people to Medicaid if approved by voters, who back the measure by nearly 60%, according to a recent Salt Lake Tribune/Hinckley Institute poll.

4 MORE BALLOT INITIATIVES

In addition to the four states considering whether to expand Medicaid, there are four others considering ballot initiatives that could significantly affect the business of healthcare.

Massachusetts mulls nurse staffing ratios. Question 1 would implement nurse-to-patient staffing ratios in hospitals and other healthcare settings, as Jennifer Thew, RN, wrote for HealthLeaders. The initiative has backing from the Massachusetts Nurses Association.

Nurses have been divided, however, on the question, and public polling prior to Election Day suggested a majority of voters would reject the measure, which hospital executives have actively opposed. The hospital industry reportedly had help from a major Democratic consulting firm.

California could float bonds for children’s hospitals. Proposition 4 would authorize $1.5 billion in bonds to fund capital improvement projects at California’s 13 children’s hospitals, as Ana B. Ibarra reported for Kaiser Health News. With interest, the measure would cost taxpayers $80 million per year for 35 years, a total of $2.9 billion, according to the state’s Legislative Analyst’s Office.

Proponents say children’s hospitals would be unable to afford needed upgrades without public assistance; opponents say the measure represents a fiscally unsound pattern. (California voters approved a $750 million bond in 2004 and a $980 million bond in 2008.)

Nevada nixing sales tax for medical equipment? Question 4 would amend the Nevada Constitution to require the state legislature to exempt certain durable medical goods, including oxygen delivery equipment and prescription mobility-enhancing equipment, from sales tax. The proposal, which passed a first time in 2016, would become law if it passes again.

Bennett Medical Services President Doug Bennett has been a key proponent of the measure, arguing that it would bring Nevada in line with other states, but opponents contend the measure is vaguely worded, as the Reno Gazette Journal reported.

Oklahoma weighs Walmart-backed optometry pitch. Question 793 would add a section to the Oklahoma Constitution giving optometrists and opticians the right to practice in retail mercantile establishments.

Walmart gave nearly $1 million in the third quarter alone to back a committee pushing for the measure. Those opposing the measure consist primarily of individual optometrists, as NewsOK.com reported.

INCUMBENTS, PLAINTIFFS, PREEXISTING CONDITIONS

It’s been more than two months since Republican attorneys general for 20 states asked a federal judge to impose a preliminary injunction blocking further enforcement of the Affordable Care Act, including its coverage protections for people with preexisting conditions. Some see the judge as likely to rule in favor of these plaintiffs, though an appeal of that decision is certain.

Amid the waiting game for the judge’s ruling, healthcare policymaking—especially as it pertains to preexisting conditions—rose to the top of voter consciousness in the midterms. That explains why some plaintiffs in the ACA challenge have claimed to support preexisting condition protections, despite pushing to overturn them.

The lawsuit and its implications mean healthcare leaders should be watching races in the 20 plaintiff states in the Texas v. Azar lawsuit: Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Maine Gov. Paul LePage, Mississippi Gov. Phil Bryant, Missouri, Nebraska, North Dakota, South Dakota, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin. Thirteen of those plaintiff states have active elections involving their state attorneys general, and several have races for governor in which the ACA challenge has been an issue, including these noteworthy states:

  • Texas: Attorney General Ken Paxton, a Republican representing the lead plaintiff in the lawsuit, is facing a challenge from Justin Nelson, a Democrat, and the race seemed to be competitive, as The Texas Tribune reported. Gov. Greg Abbott was expected to win against Democratic challenger Lupe Valdez.
  • Florida: Attorney General Pam Bondi, a Republican, is term-limited, so she’s not running for reelection. Ashley Moody, a Republican, and Sean Shaw, a Democrat, are facing off for Bondi’s position. Moody expressed support for Florida’s participation in the ACA challenge, while Shaw said he would pull the state out, calling the case a “partisan stunt,” as the Tampa Bay Times reported. Bondi has campaigned, meanwhile, for Republican gubernatorial candidate Ron DeSantis, who’s facing off with Democrat Andrew Gillum. Gillum said he would back a state law to protect people with preexisting conditions, while DeSantis said he would step in if federal action removed the ACA’s preexisting condition protections, as the Miami Herald reported. Gillum and DeSantis are vying to succeed term-limited Gov. Rick Scott, a Republican who’s running for U.S. Senate.
  • Wisconson: Attorney General Brad Schimel, a Republican, is facing a challenge from Josh Kaul, a Democrat who has slammed Schimel’s participation in the ACA challenge, as The Capital Times reported. Gov. Scott Walker, a Republican, said he supports preexisting condition protections, despite authorizing his state’s participation in the lawsuit. Democratic challenger Tony Evers accused Walker of “talking out of both sides of his mouth,” as the Milwaukee Journal Sentinel reported.

PROPONENTS OF MEDICAID WORK REQUIREMENTS

Five states have received approvals from the Centers for Medicare and Medicaid Services to institute Medicaid work requirements: Kentucky, Indiana, Wisconsin, New Hampshire, and Arkansas. (Only four have active approvals, however, since a federal judge blocked Kentucky’s last summer.)

Three incumbent governors who pushed for work requirements are running for reelection:

New Hampshire: After receiving approval for New Hampshire’s Medicaid work requirements, Republican Gov. Chris Sununu said the government is committed to helping Granite Staters enter the workforce, adding that it is critical to the “economy as a whole.” Despite spearheading a controversial topic in a politically centrist state, Sununu has not trailed against his Democratic opponent Molly Kelly in any poll throughout the midterm elections.

Arkansas: Similarly, Arkansas Gov. Asa Hutchinson, is running in a race where he has held a sizable lead over his Democratic challenger Jared Henderson. Since enacting the work requirements over the summer, the state has conducted two waves where it dropped more than 8,000 enrollees.

Wisconsin: The most vulnerable Republican governor of a state with approved Medicaid work requirements is Wisconsin Gov. Scott Walker, who has been neck and neck with Democratic nominee Tony Evers. While the Badger state only received approval for its Medicaid work requirements last week, healthcare has been a central issue of the campaign as Walker, a longtime opponent of the ACA, works to address premium costs in the state and defend his record on preexisting conditions.

Indiana and Kentucky: Indiana Gov. Eric Holcomb and Kentucky Gov. Matt Bevin are not on the ballot this year.

When HealthLeaders issued its first list in April of the healthcare leaders running for public office during the primaries, there were more than 60 candidates with relevant healthcare backgrounds out on the campaign trail.

Now, for the general election, that list has nearly been halved, with 35 candidates still remaining. 

This collection of healthcare leaders includes registered nurses, former insurance company executives, physicians, and former government health policy leaders.

U.S. Senate: Running for the Senate are Florida Gov. Rick Scott, former Tennessee Gov. Phil Bredesen, former Celgene CEO Bob Hugin, and State Sen. Leah Vukmir.

U.S. House: Among those aiming to join the House are Lauren Underwood, RN, former HHS Secretary Donna Shalala, and Dr. Kim Schrier.

 

 

Dinged, Dented, Defiant: The ACA Is Still Standing

https://www.healthleadersmedia.com/dinged-dented-defiant-aca-still-standing

Texas v. Azar is the latest in a long line of lawsuits and legislation that Republicans have used to undermine the Affordable Care Act, which has shown itself to be remarkably resilient.


KEY TAKEAWAYS

A federal judge in Texas could slap a preliminary injunction on the ACA.

The case is the latest in a long string of efforts to dismantle the ACA since its inception in 2010.

A federal judge in Texas is poised to drop a ruling that could determine the future of the Affordable Care Act.

Or, maybe not.

The Republican plaintiffs from 20 states in Texas v. Azar argued before U.S. District Judge Reed O’Connor in early September that the entire ACA became unconstitutional when Congress zeroed out the individual mandate penalty, effective 2019.

Led by Texas Attorney General Ken Paxton, the Republican plaintiffs are asking for a preliminary injunction. The Department of Justice, which declined to defend portions of the ACA, also urged O’Conner to delay any injunction until after the enrollment period, saying any attempts to impose the injunction during the enrollment period would invite “chaos.”

If the injunction goes through, it could end premium subsidies for ACA beneficiaries and cripple enrollment. The Urban Institute has estimated that 17 million people would lose their health insurance coverage if the ACA was overturned.

As potentially catastrophic as this sounds, the healthcare sector doesn’t seem to be overly concerned. In fact, business couldn’t be better.

A report in Axios shows that many players in the healthcare sector are prospering under the ACA. The website notes that S&P 500 healthcare index of 63 major companies has grown by 186% since the ACA became law in 2010, outstripping the S&P 500 and the Dow Jones.

In addition, health insurance companies are flush. Shares of UnitedHealth Group have gone up more than 700% since 2010, and the stock price of ACA marketplace insurer Centene has gone up 1,100% over the same period, Axios reports.

While hospitals have had a tougher time of it, especially in states that refused to expand Medicaid, they’re still seeing reductions in charity care and bad debt owing.

Regardless of how O’Connor rules in Texas v. Azar, ACA payers, providers, and other stakeholders will continue to presume that the law isn’t going anywhere, says healthcare economist Gail Wilensky.

“They’re assuming it’ll be around, or something very similar will be,” says Wilensky, a former director of Medicare and Medicaid, and a former chair of the Medicare Payment Advisory Commission.

“I don’t think people are regarding any serious likelihood of it going away again,” she says.

Even if O’Connor, appointed to the court in 2007 by President George W. Bush, agrees with the severability arguments raised by the Republican governors and attorneys general in 20 states who brought the suit, the matter likely would get shot down on appeal, Wilensky says.

” I would be surprised if it doesn’t get reversed someplace else,” says Wilensky, now a senior fellow at Project HOPE.

“If it had go all the way to the Supreme Court, the Supreme Court isn’t going to tolerate it, but I don’t know that it would even get that far,” she says.

The case is just one in a long string of legal and legislative actions Republicans are taking at the state and federal level to either undermine or bolster the ACA.

Earlier this year, O’Connor sided with Texas and five other states and threw out an Obama administration tax on states receiving Medicaid funds.

The Republican-controlled Congress has tried more than 50 times to repeal Obamacare, and Senate Majority Leader Mitch McConnell said this week that Republicans may try again in 2019.

While the signature legislation of the Obama era has been dinged and dented, it’s also proven to be remarkably resilient.

Wilensky says the ACA is resilient because it solves a problem “for a small but non-trivial group of people,” and that Republicans don’t have a credible alternative.

“Once a benefit is in place for any measurable amount of time, certainly two or three years would qualify, there’s no precedent for removing it,” she says.

“And most of the proposals that had come up did not seriously get the job done,” Wilensky says.

“They really weren’t effective as an alternative and you simply aren’t going to take away a benefit, like the extension of insurance to people who are above the poverty line and not offered traditionally employer sponsored insurance without having a credible alternative.

“It’s just not going to happen because there are too many issues that have already been adjudicated at a more serious level,” Wilensky says. “I don’t know why they did this other than that this is 20 attorneys general and they’re running for something.”

 

 

 

 

ACA court case causing jitters in D.C. and beyond

http://www.modernhealthcare.com/article/20180831/NEWS/180839976

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For months, congressional Republicans have ignored the Texas-led lawsuit seeking to overturn the Affordable Care Act. With the midterm elections looming, talk of the case threatened to reopen wounds from failed attempts to repeal the law. Not to mention that legal experts have been panning the basis of the suit.

But that’s all changing as the ACA faces its day in court … again. The queasy feeling of uncertainty that surrounded the law just one year ago is back. The level of panic setting in for the industry and lawmakers is pinned to oral arguments set for Sept. 5 in Texas vs. Azar. Twenty Republican state attorneys general, led by Ken Paxton of Texas, are seeking a preliminary injunction to halt enforcement of the law effective Jan. 1. Their argument is built around the Supreme Court’s 2012 ruling in which Chief Justice John Roberts said the law is constitutional because it falls under Congress’ taxing authority. The AGs have seized on the congressional GOP’s effective elimination of the individual mandate penalty in the 2017 tax overhaul as grounds to invalidate the law. 

They have the Trump administration on their side, in part. The Justice Department in June filed a brief arguing that the individual mandate as well as such consumer protection provisions as barring insurance companies from denying coverage to people with pre-existing conditions are unconstitutional. But the department stopped short of suggesting that the entire law be vacated.

Conservative U.S. District Judge Reed O’Connor will hear the case in Austin, Texas. O’Connor has already ruled against an ACA provision that prohibited physicians from refusing to perform abortions or gender-assignment surgery based on religious beliefs, and he is considered a wild card.

Even ACA supporters who downplay the legal standing of the case are bracing for the possibility that O’Connor will side with the plaintiffs, who ultimately see a path to the Supreme Court.

Republicans, meanwhile, are trying to head off a potential political storm. A coalition of Senate Republicans led by Sen. Thom Tillis of North Carolina introduced a bill to codify guaranteed issue for people with pre-existing conditions into HIPAA laws. But they left out the key mandate that insurers can’t exclude coverage of treatment for pre-existing conditions. That omission left health insurers scratching their heads and Democrats came out swinging, with Democratic Sen. Claire McCaskill of Missouri dubbing the measure “a cruel hoax.”

The politics around coverage protections will really start to matter for Republicans should O’Connor signal support for the plaintiff states, according to Rodney Whitlock, a Washington healthcare strategist and former GOP Senate staffer. “It ups the pressure considerably,” he said. “There’s no question it complicates things for Republicans if a decision comes down in October.”

Insurers are on the lookout for signs of what could happen next. If O’Connor’s decision comes down before open enrollment starts on Nov. 1, the GOP will feel increasing pressure to do something substantive, according to an industry official who asked not to be identified.

Although a ruling striking down the law wouldn’t necessarily impact the individual market in 2019, it would spark the kind of massive uncertainty that insurers hate and complained of last year during the GOP repeal-and-replace efforts.

America’s Health Insurance Plans filed an amicus brief urging the court to deny the request for a preliminary injunction, citing the massive impact such a move would have on insurers in the individual market, Medicaid managed care and Medicare Advantage plans.

“It creates a lot of impetus for federal or state action,” the insurance official said, noting that insurers would have to rely on HHS to interpret how the law’s regulations would apply going forward. If mounting court decisions start to drastically affect the law’s mandates, it would fall to HHS how to manage complicated questions around how to follow ACA rules.

HHS and Justice Department officials declined to comment. CMS Administrator Seema Verma in August told McCaskill when pressed at a Senate committee hearing that she would support legislation to protect pre-existing conditions, but she declined to specify how the CMS would respond administratively if the suit succeeds.

For now, lawmakers aren’t showing any willingness to take a bipartisan approach. The House GOP plans to introduce a companion bill to the Senate measure, Tillis told Modern Healthcare last week. Meanwhile Democrats have made hay over the fact that the protections in his legislation are incomplete. Tillis said leaving out the prohibition of coverage exclusions was not intentional and GOP senators would look again at the bill if the lawsuit advances.

He added that he envisions the legislation as just one piece that could build into a bigger overhaul effort, and wants to see protections of other popular provisions such as allowing people up to age 26 to stay on their parents’ health insurance.

“It’s similar to what we talked about last year,” Tillis said, referencing the 2017 repeal-and-replace efforts. “Any sort of court challenge that would cause a precipitous voiding of Obamacare would leave a lot of people in the lurch, and one of those areas is pre-existing conditions.”

Sen. Bill Cassidy (R-La.), who spearheaded the last major GOP effort to repeal and replace the ACA last year, also said he would want to look at more comprehensive legislation if the lawsuit advances. “I certainly would,” Cassidy said. “I can’t speak for all, but I do think there would be a drive to.”

How Republicans will move past messaging and into action remains to be seen, Whitlock said.

“If you think of the seminal moments of 2017, you think of pre-existing conditions and the Jimmy Kimmel test,” Whitlock said, referencing the talk show host’s attack on the repeal-and-replace effort following emergency heart surgery for his newborn son. “This was a big deal because people were concerned. It is a very important issue, and it’s also one that Republicans have tried to say in every bill that they’re trying to protect. They have been successful to varying degrees in making that case. But with the Texas lawsuit, there’s no protecting it. It says, throw out the entire ACA root and branch.”

And as nomination hearings for Supreme Court nominee Brett Kavanaugh get underway Sept. 4, Democrats will keep using the GOP’s dilemma as a cudgel. McCaskill, for instance, is leveraging the issue in her neck-and-neck race against Missouri Attorney General Josh Hawley, who is part of the lawsuit.

“How do you have a pre-existing conditions bill that says we’re not going to protect someone with a pre-existing condition?” she told reporters last week. “It’s embarrassing, it’s the Potomac two-step. Do they think nobody’s paying attention? They’re just trying to cover themselves politically, isn’t it obvious?”

And then there’s the other political dilemma for Republicans who want to show they can secure Obamacare’s protections: convincing their base that they still fundamentally oppose Obamacare even if they don’t want to talk about repeal-and-replace anymore.

“You can be sure there are folks out there who really desperately don’t want to see the Texas side laughed out of court,” Whitlock said. “It destroys the whole narrative about the lawsuit. It’s this bizarre dynamic where an obscure lawsuit that has no legal basis whatsoever leaves the opportunity to talk about” repeal.

He added: “There are people who are flat-earthers on ACA, still preaching complete and total repeal.”

 

 

Two Lawsuits with Implications for the Coverage of Millions of Americans

http://www.commonwealthfund.org/publications/blog/2018/jun/lawsuits-implications-for-coverage?omnicid=EALERT1421015&mid=henrykotula@yahoo.com

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Significant legal challenges have marked the history of the Affordable Care Act (ACA) since its passage in 2010, and have largely determined the outlines of the law’s current structure. Similarly, as Sara Rosenbaum argues in a brief published this week, the courts have substantially shaped the Medicaid program over its 53-year history. Two recent legal challenges have potentially far-reaching implications for both the Affordable Care Act and the Medicaid program, and the millions of Americans who depend on them for their health insurance. While the plaintiffs take different positions regarding the ACA and Medicaid, the cases and the Trump Administration’s responses to them reveal an executive branch that is consistent in its efforts to reduce the federal government’s role in guaranteeing health insurance coverage for Americans.

Stewart v. Azar

Oral arguments in U.S. District Court for the District of Columbia begin today in a class action lawsuit brought by 15 Kentucky Medicaid enrollees. The case challenges the legality of several aspects of Kentucky’s 1115 Medicaid demonstration waiver, which allows the U.S. Department of Health and Human Services (HHS) and states to test time-limited innovations in Medicaid and other public welfare programs without congressional action. Set to go into effect on July 1, the Kentucky waiver’s most controversial provision is the requirement that Medicaid beneficiaries work or perform community service for at least 80 hours per month to retain coverage. The suit also challenges the authority of HHS, now led by Secretary Alex Azar, to both encourage and approve Medicaid work demonstrations generally and the approval of Kentucky’s demonstration in particular.   The suit also challenges the legality of other aspects of the waiver, including the imposition of premiums, the use of six-month lock-out periods for beneficiaries who don’t comply with work requirements or pay their premiums on time, and the elimination of Medicaid’s requirement that new beneficiaries receive three months of retroactive coverage. Three other states have received approval for similar waiversseven states have applications under review at the Centers for Medicare and Medicaid Services, and several others are developing them. Because the case challenges both the Kentucky waiver and HHS policy, it has implications for these states, as well as the future of the Medicaid program.

A critical issue highlighted by the case goes to the heart of the entitlement nature of the Medicaid program. Under the Medicaid Act and subsequent amendments, Congress has determined certain groups of people to be eligible for Medicaid coverage by virtue of their age, income, or health needs. These mandatory coverage groups include children, pregnant women, and the elderly, blind and disabled. Because working-age adults with low incomes were the least likely to work in a job that comes with health benefits, the ACA created a new mandatory eligibility category for adults with income less than 138 percent of the federal poverty level. The Supreme Court decision in 2012 effectively made this optional for states. But once a state elects to cover people who fall into this group, individuals at this income level become a mandatory coverage group. Kentucky expanded eligibility for this group in 2014, and most, but not all, of its waiver provisions apply only to this group. The lawsuit argues that suspending a beneficiary’s coverage for failure to comply with the new waiver requirements would be in violation of their entitlement to coverage under the Medicaid Act. In public speeches, Centers for Medicare and Medicaid Services (CMS) Administrator Seema Verma, also named as a defendant in the suit, has maintained that Congress’s decision to expand eligibility for Medicaid to “able-bodied” adults was a departure from the historical mission of the program and that states should have the opportunity to alter that through work and other requirements. While the vast majority of adults who have coverage through the ACA’s Medicaid expansion have jobs, work requirements will likely impose significant administrative barriers that could trigger eligibility losses even among those working full time. Estimates of coverage losses range from 95,000 to nearly 300,000 people in Kentucky. Because low-income workers remain the least likely group in the U.S. workforce to have coverage through their jobs, many will likely become uninsured.

Texas v. Azar

Secretary Azar is also the defendant in this case, brought by Texas and 19 other Republican-led states. So-called amici, or friend of the court briefs, are due today and several groups have filed briefs. The suit claims that Congress’s repeal of the individual mandate penalty renders the individual mandate — still part of the ACA — unconstitutional. Because the mandate is essential to the operation of the law, the case argues that the entire law is invalid. In an extraordinary departure from executive branch precedent — and as noted by Tim Jost — Attorney General Jeff Sessions notified Congress last Thursday that the administration agreed with the plaintiffs that the individual mandate was unconstitutional. Because of this, the administration argues that insurers selling policies in the individual market can no longer be banned from denying people coverage or charging higher premiums because of their health, gender, or age. However, the administration maintains that other parts of the law, including the Medicaid expansion, are not affected.

Looking forward

Taken together, these cases underscore the Trump Administration’s ongoing interest in reducing the number of people covered under the Affordable Care Act by withdrawing federal support for the law. Today’s oral arguments in the Stewart case will provide early indications as to how the courts will view the administration’s actions. The insurance coverage of millions of Americans and the future of the Medicaid program are at stake.