Spry

Opinion by Judge KLEINFELD; Concurrence by Judge MOSKOWITZ.

We deal with what federal Medicaid restrictions apply to a state program providing medical benefits to persons who are not eligible for Medicaid.

States do not have to participate in the federal Medicaid program, but if they do, the state plans must generally conform to federal Medicaid regulations. In return for their participation and conformity with federal requirements, participating state governments get partial reimbursement from the federal government. States also may experiment with new types of plans. If they do, the plans must generally conform to Medicaid regulations for Medicaid-eligible people, but the Secretary of Health and Human Services may waive some requirements. If a state chooses to expand coverage to needy people who are not eligible for Medicaid, and the Secretary exercises his discretion to approve the plan, then the needy people who are not eligible for Medicaid are nevertheless regarded as though they were, for purposes of calculating reimbursements to the state.

*1274 This case involves a question not previously decided. Suppose the state expands its coverage in an experimental plan, called…

concurring:

While I concur in the result reached by the majority, I write separately because I do not agree that the statute in question speaks unambiguously on the issue of the *1278 requirements for expansion population coverage under a demonstration project. In particular, I am unable to find the clear statutory mandate for limiting the applicability of Section 1396o(f) to only mandatory and optional, but not expansion, populations within a demonstration project.

However, we are not left to search blindly for the meaning of the relevant statutes. Rather, the Secretary has already interpreted the statutory strictures relevant to demonstration projects and determined that a Section 1315 waiver of Medicaid program regulations is not needed for, nor does it have any applicability to, expansion populations. This is because Medicaid regulations do not apply to individuals who are not eligible for Medicaid, such as the expansion populations covered under Oregon’s demonstration project. The Secretary’s approval of the Oregon project was given in accordance with this determination.

I find that the Secretary’s view is “based on a permissible construction of the [relevant] statute.”…

Facts.

The five plaintiffs in this case are not eligible for Medicaid, although their income is low. They would have to be blind or disabled, or would have to have children (they do not), to be eligible.2 Oregon has developed a health plan to cover them despite their ineligibility. They have to pay higher premiums and higher co-payments on doctor visits, medications, etc. than they would if eligible under Medicaid. Medicaid is not totally free to recipients; they are required to pay nominal amounts as co-payments for their government provided insur- ance coverage, medications, doctor and hospital visits, etc. Under the Oregon plan, the premiums for these needy but Medicaid-ineligible people range from $5.00 to $20 per month, depending on income, compared to Medicaid limits of 1 We have written this opinion in plain English, to facilitate our own and others’ understanding of the matters discussed. For those who specialize in the field and typically use acronyms in their writing or as search terms, this is a case about OHP, OHP2, DSH, and HIFA (but not SCHIP). 2 See 42 U.S.C. § 1396a(a)(10). SPRY v. THOMPSON 5923 $1.00 to $6.00 per month. Likewise, their…