AUGUSTA  — The Legislature could be rolling the dice if it passes Gov. Paul LePage’s proposed Medicaid cuts, several of which would require federal waivers.

LePage told reporters this week that the Legislature would have to pass his $220 million in cuts before the state can apply for an exemption from provisions in the federal Affordable Care Act.

However, obtaining that exemption appears to face significant hurdles, including unprecedented federal approval of sweeping reductions in Medicaid cuts linked to the federal health care law.

“I will not get a waiver from the federal government until the Legislature says they want it, and the Legislature says it’s illegal,” LePage said. “Well, put me in jail and we’ll go from there.”

The Affordable Care Act prohibits states from making it more difficult to enroll in Medicaid programs. LePage’s proposed $220 million in cuts to MaineCare — the state’s Medicaid program — calls for stricter eligibility guidelines and would eliminate health coverage for about 65,000 people.

Some of the governor’s targeted programs are protected by what’s called the Maintenance of Effort requirement in the federal health care law. The provision is designed to make sure adults and children are eligible for Medicaid pending the implementation of the federal law, which calls for a major expansion of Medicaid eligibility in 2014.

Following the lead of other states trying to bridge budget shortfalls by cutting their Medicaid programs, LePage wants permission from the federal government to change or eliminate certain Medicaid offerings in Maine.

The administration is confident that the waiver is obtainable, citing a temporary waiver granted last year by the federal Centers of Medicare and Medicaid Services, which is overseen by the U.S. Department of Health and Human Services. However, according to emails sent to the state, the waiver was meant as a one-time reprieve to help the state’s budget picture.

The administration is now hoping that CMS will waive the Affordable Care Act provision to help Maine address the $220 million DHHS shortfall.

The prospect of that waiver appears, at best, uncertain.

According to Judith Solomon, vice president of health policy for the Center on Budget and Policy Priorities, the federal government has not granted any waivers from the health law’s Maintenance of Effort provision, despite requests from several Republican governors.

They appear to be following the lead of Arizona Gov. Jan Brewer, who earlier this year rolled out $500 million in Medicaid cuts, a reduction similar in scope to what LePage has proposed. 

Arizona did receive permission from the federal DHHS to drop Medicaid coverage for 221,952 childless adults – a program LePage wants to eliminate. However, according to an overview of the Arizona requests by the Kaiser Family Health Foundation, the exemption wasn’t a waiver from the Affordable Care Act, but rather, the expiration of the childless adults program.

According to DHHS Secretary Kathleen Sebelius, the health care law’s maintenance coverage provision does not apply to optional Medicaid programs that are expiring.

According to the state DHHS, three of the five Medicaid programs slated for cuts would require waivers from the Affordable Care Act; coverage for 19- and 20-year-olds, coverage for parents earning 133 percent of the poverty line and the prescription drug program for the elderly.

None of those programs are slated to expire this year, meaning Maine would have to obtain waivers that the federal government appears not to have granted anywhere else.

Additionally, language in the Affordable Care Act suggests that Medicaid waivers can only be granted if the states are undertaking experimental projects designed to expand health care coverage — not to save money or fill budget gaps.

Christine Halstedt of Maine Equal Justice Partners, a progressive advocacy group for disadvantaged Mainers, made that case to lawmakers Thursday when she cited a decision by the Ninth Circuit U.S. Court of Appeals that reaffirmed the law’s intent. 

Halstedt told lawmakers on the Legislature’s Appropriations Committee that “the underlying purpose of the Maintenance of Effort provision of the ACA” was to protect people until the new coverage provisions of federal health law go into effect in 2014.

Solomon, with the Center on Budget and Policy Priorities, said she hadn’t seen LePage’s DHHS proposal. But, she said, “if it is not grounded in anything but a budget shortfall, the response to the Arizona requests suggests (waivers) wouldn’t be granted.”

Despite those obstacles, LePage expressed confidence Thursday that waivers would be granted. He told reporters that he had discussed the possibility of waivers with DHHS Secretary Sebelius, whom he said told him that the Legislature had to first pass his proposed cuts.

The governor’s communications staff has not responded to requests for correspondence between LePage and Sebelius. Adrienne Bennett, LePage’s spokeswoman, said the governor talked with Sebelius personally during his visit to Washington, D.C., earlier this year.

Efforts to confirm that conversation with Sebelius were unsuccessful.

Rep. Mark Eves, D-South Berwick, said he would be nervous about supporting the Medicaid cuts without some assurance that the federal waiver was forthcoming.

The ACA waiver does not affect all of the governor’s proposed cuts. His proposal to cut childless adults from the Medicaid rolls could be done without a federal exemption because the program is set to expire next year.

So far, the proposed cuts have met widespread resistance during three days of public hearings.

Democrats have voiced opposition to the proposal and questioned the magnitude and origin of the shortfall.

Rep. Pat Flood, R-Winthrop, co-chairman of the committee, said Friday that the panel would not begin digging into the policy discussion until the reasons for the shortfall — one-time overruns or structural deficiencies — were established by DHHS.

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Supporters of Fund for Healthy Maine rally against cut

AUGUSTA — The Fund for Healthy Maine is one of several programs targeted by Gov. Paul LePage’s $220 million in cuts at the Department of Health and Human Services.

On Friday, a coalition of students, health care providers and leaders rallied at the State House to oppose severe reduction in the fund.

The program is funded by Maine’s share of a national tobacco settlement and used to fund programs that prevent tobacco use and the onset of chronic diseases.

“This shortsighted proposal takes Maine in the wrong direction,” said Gordon Smith, vice president of the Maine Medical Association. “Maine people need good jobs, and every opportunity to live healthy lives. Keeping the fund working to prevent disease and promote good health is our best opportunity to support healthy families, build a productive work force, and lower costs for businesses and for all of us.”

The program has typically received broad support from business leaders. Earlier this year, a bipartisan commission set up to study the Fund for a Healthy Maine unanimously supported its objectives.

Dr. Joel Kase, an emergency room doctor and a former Republican challenger to Sen. Margaret Craven, D-Lewiston, said the program’s emphasis on prevention helped tamp down health care costs.

LePage’s proposed DHHS cuts would ax more than $29.5 million from the $54 million fund in 2013 and would all but eliminate funding for 16 school-based health centers.