Medicaid expansion

Reclaim Idaho spearheaded the Medicaid expansion ballot initiative, approved by voters in November.

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BOISE — Falling into Idaho’s health coverage gap has “harsh consequences,” according to legal arguments filed with the Idaho Supreme Court this week, even if a family’s household income is just a few dollars lower than the poverty line.

Prior to enactment of Proposition 2, the voter-approved Medicaid expansion initiative, a family of four in Ada County with a household income just below the federal poverty level of $25,100 would have to pay $903 per month for a health insurance policy with an annual deductible of more than $10,000, according to a legal brief filed by attorneys for the Idaho Medical Association, a doctor and two mothers — including one whose family is in exactly that circumstance.

If that same family made just above the poverty line, it’d pay just $30 a month in premiums for the same health insurance plan, because of subsidies provided through the state insurance exchange.

“The consequences of being caught in the gap are significant,” the attorneys wrote.

The Idaho Freedom Foundation is challenging the voter-passed law as unconstitutional, saying it improperly delegates legislative authority to the federal government and the Idaho Department of Health & Welfare. Like earlier legal arguments filed by the state Attorney General’s office, the new intervenors’ brief says that’s simply not true.

“Legislation directing the Idaho Department of Health & Welfare to implement express policy changes is not a delegation of legislative authority,” the attorneys write. “It not only is completely within the executive branch’s authority, it is its constitutional obligation to do so, and it is a common practice that has been endorsed by this court.”

Also like the Attorney General, the intervenors argue that the Freedom Foundation, through its board chairman Brent Regan, lacks standing to sue and that the state’s highest court lacks jurisdiction to hear the case — and that the case should be dismissed on those grounds, as well.

The new arguments also go into more detail on the coverage gap that Proposition 2 sought to close.

When Congress passed the Affordable Care Act in 2010, it changed the nature of Medicaid, the joint federal-state program that provides health coverage for the poor and disabled, the brief says. At that point, Medicaid was expanded to cover everyone under age 65 whose income fell below 133 percent of the federal poverty level. For those whose incomes were between 100 and 400 percent of the poverty level, subsidized private insurance would be available through insurance exchanges.

“This was a significant change to Medicaid,” the attorneys wrote, which then was “no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide for universal health coverage,” as stated in a 2012 U.S. Supreme Court decision.

That decision, however, NFIB v. Sibelius, made the Medicaid expansion piece of the ACA optional, rather than mandatory, for states.

“That created a ‘gap’ in healthcare coverage for individuals and families below the FPL (federal poverty level),” the brief states.

Although Idaho Gov. Butch Otter convened several study groups that recommended the state expand its Medicaid program, lawmakers declined for six straight years to act, until voters stepped in this year. Thirty-three other states already had expanded Medicaid; two others, in addition to Idaho, did so by voter initiative in November.

In 2018, the federal poverty level for a single individual in the lower 48 states is $12,140. For a couple, it’s $16,460.

“Proposition 2 filled the gap in health care coverage created by the Sibelius decision,” the attorneys wrote, by expanding Medicaid in Idaho to anyone under 65 with an income of 133 percent of the poverty level or less.

The two mothers named in the lawsuit are Deleena Foster of Pocatello, a mother of three whose husband works as a roofer; and Pamela Blessinger of Boise, a married mother of two children with disabilities who works part time and whose husband is a disabled Iraq veteran. Their household incomes put them squarely in the gap.

“Prior to the passage of Proposition 2, Idahoans whose incomes fell below 100 percent of the FPL received no benefit from the ACA, had no affordable health insurance options, and were left in the coverage gap,” the lawyers wrote.

A family of five living in Bannock County, like Foster’s, with income just below the federal poverty line, would pay $1,036 a month for health insurance premiums, while if the family’s income was just above the poverty line, it’d pay just $50 per month, the brief states. Those figures come from the online insurance calculator on, Idaho’s state insurance exchange.

“The insurance calculator demonstrates the harsh consequences of being in the gap population,” the attorneys wrote.

The poverty level for a family of five is $29,420.

The legal brief cites a long line of cases upholding the constitutionality of Idaho laws that make references to federal statutes or delegate implementation authority to an executive branch agency, as Proposition 2 does.

“The party challenging a statute on constitutional grounds bears the burden of establishing the statute is unconstitutional and ‘must overcome a strong presumption of validity,’” the lawyers wrote, citing a 2010 Idaho Supreme Court case. “When the people approve an initiative, they are exercising legislative power granted under Article III, Section 1 of the Idaho Constitution.”

“Idaho voters exercised their legislative authority to extend Medicaid benefits to a specific class of citizens using the FPL as one of the elements of eligibility,” the brief states. “This legislative decision reflects the overall policy goal of Proposition 2 to fill in the coverage gap created by Sibelius. In order to fully address the Sibelius gap, Medicaid benefits must be extended to persons under 65 years of age at or below 133 percent of the FPL.”

Like the earlier brief filed in the case by the Idaho Attorney General’s office, the intervenors’ brief says a Dec. 14 decision from a federal court in Texas about the constitutionality of the ACA has no effect on the Idaho court challenge.

The Freedom Foundation has until Jan. 9 to file a reply brief. Oral arguments before the justices of the Idaho Supreme Court are set for Jan. 29.

Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.

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