Gov. Brian Kemp announced last week the state is suing the federal Centers for Medicare and Medicaid Services, alleging the agency isn’t giving the governor enough time to test out his partial expansion program, Pathways to Coverage. 

States can waive the right full Medicaid expansion by implementing demonstration programs. In Georgia’s case, the legislature chose a program with more stringent eligibility and reporting criteria. It comes at a cost -— Pathways is matched by the federal government at just under half than what is offered to states that adopt full expansion. 

Pathways, which only covers working adults, has so far been criticized for enrolling far fewer people than are eligible since it launched last summer. As it stands, Pathways is the only Medicaid waiver program in the country with work requirements. 

The lawsuit alleges the federal agency stole time away from Pathways, and that the program should get a pass to operate longer than its intended end date next September. Pathways' start date was delayed for more than a year following litigation over the program’s work requirements. 

But an error in Georgia’s approach makes the lawsuit complicated, said Leo Cuello with Georgetown University’s School of Public Policy. 

“They would have to publicly put out their request for extension and give the public a chance to provide feedback on whether or not that extension should be approved,” Cuello said. 

Federal policy requires this public comment period, and a submission of specific data on the program, which Georgia has so far not done. Cuello, who's been following the Pathways program since its start, called the state’s lawsuit a “distraction attempt” from this necessary step. 

CMS never really reviewed an extension here,” Cuello said. Georgia submitted an amendment request, and an amendment request is distinct from an extension request.

Georgia first issued a request to extend the program's expiration date through an amendment in February of last year, asking CMS to honor the program's initially agreed-upon five-year implementation period. A response from CMS came in October, instructing the state to file a formal extension request. The state then asked CMS to reconsider in a subsequent letter, which was denied again in December. 

It’s likely Georgia’s lawsuit will see a judge facing uncharted waters over CMS policy that's never been challenged. 

“What I have never seen before is any suggestion that somebody gets to tack on extra time at the end of their demonstration period other than through the normal extension process,” Cuello said. 

The lawsuit over Pathways now heads to court in the Southern District of Georgia. 

On the same day Georgia’s lawsuit was announced, so was one out of neighboring Florida challenging a policy that requires states keep children enrolled in Medicaid even if their parents can’t pay monthly premiums.