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Ross Margulies
Ross Margulies

This document summarizes Medicaid waiver policies and recent litigation in Kentucky. It provides context on the legal framework for Section 1115 waivers, noting they must be experimental projects that further Medicaid objectives. Recent waivers have cut benefits without new coverage expansions. Kentucky's waivers imposed restrictions like lockouts, premiums and work requirements that a lawsuit alleges are illegal. The litigation argues the waivers violate the "take care" clause and are arbitrary under the Administrative Procedure Act. Going forward, additional legal challenges will be needed to curb overreach while protecting Medicaid standards.

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Medicaid Waivers: Legal Framework & Litigation Leonardo Cuello March 21, 2018
About NHeLP National non-profit committed to improving health care access and quality for low income and underserved individuals and families State & local partners: Disability rights advocates 50 states + DC Poverty & legal aid advocates 50 states + DC Join our mailing list at www.healthlaw.org Follow us on Social Media @nhelp_org on Twitter & @NHeLProgram on Facebook
Overview Key context Legal framework to 則 1115 Litigation & advocacy Concluding theme 3
Things Have Gotten Much Worse 1. Worse waivers are being requested and approved 2. With no new expansions 3. And targeting traditional Medicaid populations 4
5 Kentucky Waivers Impacts 1. Premiums Terminations 2. Lockout: Premiums Lockouts 3. Lockout: Redetermination Lockouts 4. Lockout: Reporting changes Lockouts 5. Enrollment Waiting Period Less Coverage 6. No Retroactive Coverage Less Coverage 7. Work Requirements Terminations 8. No Transportation Less Services
則 1115 Statutory Language Excerpt Sec. 1115. [42 U.S.C. 則 1315] In the case of any experimental, pilot, or demonstration project which, in the judgment of the Secretary, is likely to assist in promoting the objectives of [Medicaid] the Secretary may waive compliance with any of the requirements of section 1902 to the extent and for the period he finds necessary to enable such State to carry out such project 6 KEEP CALM AND READ THE STATUTE
Key Legal Limits of 則 1115 Statute 1. 則 1115 project must be an experiment 7
Congress: Test out a unique approach Detailed research methodology and comprehensive evaluation Courts: A simple benefit cut, which might save money, but has no research or experimental goal, would not satisfy this requirement. Key Legal Limits of 則 1115 Statute
Key Legal Limits of 則 1115 Statute 1. 則 1115 project must be a demonstration 2. Must promote the objectives of Medicaid 9
The Objectives of Medicaid Sec. 1901. [42 U.S.C. 1396-1] APPROPRIATION For the purpose of enabling each State to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care 10
TANF: Stark Contrast 42 U.S. Code 則 601 Purpose (a) IN GENERAL The purpose of this part is to increase the flexibility of States in operating a program designed to (1) provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives; (2) end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage; (3) prevent and reduce the incidence of out-of-wedlock pregnancies and establish annual numerical goals for preventing and reducing the incidence of these pregnancies; and (4) encourage the formation and maintenance of two-parent families. 11
New Medicaid Objectives Criteria + promote upward mobility + promote responsible decision-making + [align with] commercial health insurance - Increase and strengthen overall coverage of low-income individuals in the state. 12
Key Legal Limits of 則 1115 Statute 3. Only items in one section (則 1902) can be waived 4. Can only waive to extent and for the period necessary to carry out experiment 5. Must comply with transparency requirements 則 1916(f) sets strict requirements for any waivers of cost-sharing rules Historically, HHS has applied a non-statutory budget neutrality test to 則 1115 projects 13
則 1115 Application & Review Process - Comments & Hearings (42 CFR 431.420) State Level Notice & comprehensive description of demonstration Min. 30 day comment period At least 2 public hearings Summary & response to public comments, including any changes made Federal Level 15 days to determine completeness Min. 30 day comment period CMS approval/denial no sooner than 15 days after comments close Usually negotiations last longer
Kentucky Litigation Overview Class action with 15 plaintiffs Filed against HHS, CMS, and leadership Filed in U.S. District Court, DC Co-counsel: Kentucky Equal Justice Center, Southern Poverty Law Center Additional help from law firm Jenner & Block Asking the court to (1) declare waivers illegal and (2) enjoin the waivers 15
Kentucky Litigation: Legal Claims 1. Constitutional: Take Care Clause The Executive branch can implement Congresss laws, but not re-write the law 2. Federal Law: Administrative Procedure Act Federal agency actions cannot be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law Multiple claims: One for each waiver and one for the work requirements guidance 16
Going Forward Litigation is just one piece of a larger campaign that is needed to stop bad waivers & protect the integrity of the Medicaid program 17 Each state will be a separate case Litigation will not be a one and done solution
Key Theme: What Makes Medicaid Congress wrote, and for 50+ years has expanded upon, a Medicaid statute chock full of extraordinary standards protecting low income people These standards are not a part of other health insurance systems These standards are federal minimums applying to all states 18
New CMS 則 1115 Criteria 19
Washington DC Office Los Angeles Office North Carolina Office 1444 I Street NW, Suite 1105 Washington, DC 20005 ph: (202) 289-7661 fx: (202) 289-7724 nhelpdc@healthlaw.org 3701 Wilshire Blvd, Suite #750 Los Angeles, CA 90010 ph: (310) 204-6010 fx: (213) 368-0774 nhelp@healthlaw.org 101 East Weaver Street, Suite G-7 Carrboro, NC 27510 ph: (919) 968-6308 fx: (919) 968-8855 nhelpnc@healthlaw.org www.healthlaw.org Thank You

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Click Here to Download 際際滷s

  • 1. Medicaid Waivers: Legal Framework & Litigation Leonardo Cuello March 21, 2018
  • 2. About NHeLP National non-profit committed to improving health care access and quality for low income and underserved individuals and families State & local partners: Disability rights advocates 50 states + DC Poverty & legal aid advocates 50 states + DC Join our mailing list at www.healthlaw.org Follow us on Social Media @nhelp_org on Twitter & @NHeLProgram on Facebook
  • 3. Overview Key context Legal framework to 則 1115 Litigation & advocacy Concluding theme 3
  • 4. Things Have Gotten Much Worse 1. Worse waivers are being requested and approved 2. With no new expansions 3. And targeting traditional Medicaid populations 4
  • 5. 5 Kentucky Waivers Impacts 1. Premiums Terminations 2. Lockout: Premiums Lockouts 3. Lockout: Redetermination Lockouts 4. Lockout: Reporting changes Lockouts 5. Enrollment Waiting Period Less Coverage 6. No Retroactive Coverage Less Coverage 7. Work Requirements Terminations 8. No Transportation Less Services
  • 6. 則 1115 Statutory Language Excerpt Sec. 1115. [42 U.S.C. 則 1315] In the case of any experimental, pilot, or demonstration project which, in the judgment of the Secretary, is likely to assist in promoting the objectives of [Medicaid] the Secretary may waive compliance with any of the requirements of section 1902 to the extent and for the period he finds necessary to enable such State to carry out such project 6 KEEP CALM AND READ THE STATUTE
  • 7. Key Legal Limits of 則 1115 Statute 1. 則 1115 project must be an experiment 7
  • 8. Congress: Test out a unique approach Detailed research methodology and comprehensive evaluation Courts: A simple benefit cut, which might save money, but has no research or experimental goal, would not satisfy this requirement. Key Legal Limits of 則 1115 Statute
  • 9. Key Legal Limits of 則 1115 Statute 1. 則 1115 project must be a demonstration 2. Must promote the objectives of Medicaid 9
  • 10. The Objectives of Medicaid Sec. 1901. [42 U.S.C. 1396-1] APPROPRIATION For the purpose of enabling each State to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care 10
  • 11. TANF: Stark Contrast 42 U.S. Code 則 601 Purpose (a) IN GENERAL The purpose of this part is to increase the flexibility of States in operating a program designed to (1) provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives; (2) end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage; (3) prevent and reduce the incidence of out-of-wedlock pregnancies and establish annual numerical goals for preventing and reducing the incidence of these pregnancies; and (4) encourage the formation and maintenance of two-parent families. 11
  • 12. New Medicaid Objectives Criteria + promote upward mobility + promote responsible decision-making + [align with] commercial health insurance - Increase and strengthen overall coverage of low-income individuals in the state. 12
  • 13. Key Legal Limits of 則 1115 Statute 3. Only items in one section (則 1902) can be waived 4. Can only waive to extent and for the period necessary to carry out experiment 5. Must comply with transparency requirements 則 1916(f) sets strict requirements for any waivers of cost-sharing rules Historically, HHS has applied a non-statutory budget neutrality test to 則 1115 projects 13
  • 14. 則 1115 Application & Review Process - Comments & Hearings (42 CFR 431.420) State Level Notice & comprehensive description of demonstration Min. 30 day comment period At least 2 public hearings Summary & response to public comments, including any changes made Federal Level 15 days to determine completeness Min. 30 day comment period CMS approval/denial no sooner than 15 days after comments close Usually negotiations last longer
  • 15. Kentucky Litigation Overview Class action with 15 plaintiffs Filed against HHS, CMS, and leadership Filed in U.S. District Court, DC Co-counsel: Kentucky Equal Justice Center, Southern Poverty Law Center Additional help from law firm Jenner & Block Asking the court to (1) declare waivers illegal and (2) enjoin the waivers 15
  • 16. Kentucky Litigation: Legal Claims 1. Constitutional: Take Care Clause The Executive branch can implement Congresss laws, but not re-write the law 2. Federal Law: Administrative Procedure Act Federal agency actions cannot be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law Multiple claims: One for each waiver and one for the work requirements guidance 16
  • 17. Going Forward Litigation is just one piece of a larger campaign that is needed to stop bad waivers & protect the integrity of the Medicaid program 17 Each state will be a separate case Litigation will not be a one and done solution
  • 18. Key Theme: What Makes Medicaid Congress wrote, and for 50+ years has expanded upon, a Medicaid statute chock full of extraordinary standards protecting low income people These standards are not a part of other health insurance systems These standards are federal minimums applying to all states 18
  • 19. New CMS 則 1115 Criteria 19
  • 20. Washington DC Office Los Angeles Office North Carolina Office 1444 I Street NW, Suite 1105 Washington, DC 20005 ph: (202) 289-7661 fx: (202) 289-7724 nhelpdc@healthlaw.org 3701 Wilshire Blvd, Suite #750 Los Angeles, CA 90010 ph: (310) 204-6010 fx: (213) 368-0774 nhelp@healthlaw.org 101 East Weaver Street, Suite G-7 Carrboro, NC 27510 ph: (919) 968-6308 fx: (919) 968-8855 nhelpnc@healthlaw.org www.healthlaw.org Thank You