Appeals court expects decision in TennCare dispute this week

The three-judge panel of the 6th U.S. Circuit Court of Appeals said it recognized the urgency of the situation involving TennCare and would try to have a decision by early this week, but judges acknowledged they may have no jurisdiction in the case.

The panel requested that lawyers from both sides in the dispute submit proposals for what they would like an order from the court to say regarding the appeal of an ongoing case in Nashville.

Both sides said they agree that Judge William Haynes should be reviewing procedural, rather than substantive, issues in the governor’s plan to cut the enrollees from the $8 billion health care program.

Testimony in the hearing in Nashville wrapped up on Thursday, but further filings in the case can be submitted until next Wednesday.

Haynes has said he wants to get to the bottom of the proposal for disenrollment and make sure the state has considered all alternatives. Haynes hasn’t said when he might rule.

Charles Cooper, representing the state, urged the panel to prevent Haynes from ruling on the substance of the state’s plans.

The district court should have jurisdiction to ensure the state follows proper procedure, Cooper said, but the Center for Medicare and Medicaid Services, a federal oversight board, has already approved the plan to cut people from TennCare. He also said the state is losing $1.5 million every day the planned cuts are delayed.

Plaintiffs’ attorneys said the panel should not have jurisdiction in the case until Haynes issues his decision. But Tennessee Justice Center lawyers, representing the plaintiffs, also said they would not oppose a ruling that prohibited Haynes from examining the merits of the state’s TennCare plans as long as the judge was still able to ensure that the state followed proper procedure in attempting to disenroll recipients.

The litigation between the state and plaintiffs stems from whether the state’s planned cuts were in mind with agreements, or consent decrees, signed with TennCare recipients.

Cooper said he would be meeting with plaintiffs’ lawyers Friday to craft a response to the judges’ request.

TennCare serves about 1.3 million people — nearly 23 percent of the state’s population. The federal government funds about two-thirds of the expanded Medicaid program’s budget.

The state has argued that drastic reform is necessary because keeping TennCare intact would require $650 million more in state spending — requiring deep cuts in almost every other budget area.

Haynes has said he wants to know whether administration officials and lawyers for TennCare bargained in good faith, and whether the state’s proposed TennCare changes are “suitably tailored” to any changed circumstances the state is now facing — such as the current fiscal crisis.