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Testing HHS Discretion to “Revamp” Medicaid Through Section 1115 Waivers - Stewart v. Azar
Published online by Cambridge University Press: 06 January 2021
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- Copyright © American Society of Law, Medicine and Ethics and Boston University 2019
References
1 Letter from Sec'y of Health and Human Servs., Thomas E. Price, and Administrator, Centers for Medicare and Medicaid Servs, Seema Verma, to Governors (Mar.14, 2017), https://www.hhs.gov/sites/default/files/sec-price-admin-verma-ltr.pdf.
2 Id.
3 Id; See, e.g., Stewart v. Azar, 313 F. Supp. 3d 237, 245 (D.D.C. 2018).
4 42 U.S.C. § 1315(a)(1)-(2)(A)(2012); See also S. Rep. No. 87-1589 (1962), reprinted in 1962 U.S.C.C.A.N. 1943, 1962 (stating that federal requirements “often stand in the way of experimental projects designed to test out new ideas and ways of dealing with the problems of public welfare recipients”); Id. at 256. Although CMS is the agency within HHS that evaluates §1115 waivers, §1115 of the Social Security Act authorizes the Secretary of HHS to approve waivers. This piece will therefore refer to HHS as the authorizing agency.
5 See 1115 Medicaid Waivers: From Care Delivery Innovations to Work Requirements, The Commonwealth Fund (Apr. 6, 2018), https://www.commonwealthfund.org/publications/explainer/2018/apr/1115-medicaid-waivers-care-delivery-innovations-work-requirements; North Carolina Medicaid Healthy Opportunities Pilot Fact Sheet, https://files.nc.gov/ncdhhs/SDOH-HealthyOpptys-FactSheet-FINAL-20181114.pdf (describing that North Carolina's §1115 waiver addressing social determinants of health will, among other things, “test evidence-based interventions designed to reduce costs and improve health by more intensely addressing housing instability, transportation insecurity, food insecurity, interpersonal violence and toxic stress for eligible Medicaid beneficiaries”).
6 Stewart, 308 F. Supp. 3d at 245; Robin Rudowitz, et. al., Kaiser Family Foundation, How Medicaid Section 1115 Waivers Are Evolving: Early Insights About What to Watch 1 (2017) (noting that “[a]s of September 2017, there were 33 states [operating under a total of] 41 approved waivers, and 18 states [applying for a total of] 21 pending waivers”), http://files.kff.org/attachment/Issue-Brief-How-Medicaid-Section-1115-Waivers-Are-Evolving-Early-Insights-About-What-to-Watch [https://perma.cc/79AN-SDM4].
7 Commonwealth of Ky., Office of the Governor, Kentucky Health: Helping to Engage and Achieve Long Term Health (Aug. 24, 2016), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ky/ky-health-pa.pdf.
8 The full name of the Kentucky Health §1115 demonstration waiver is “Kentucky Health: Helping to Engage and Achieve Long Term Health.” Id. at 1.
9 Id. at 35.
10 In total, the Kentucky HEALTH proposal included six elements: (1) work requirements; (2) premiums for coverage; (3) coverage lock-out periods; (4) new deductible and incentive accounts governing access to dental and vision benefits; (5) eliminate non-emergency medical transportation for most adults and; (6) exemptions for certain populations, including the medically frail and former foster care youth. Id. at 8-13.
11 Id. at 4. The KY HEALTH §1115 waiver application describes “that enrollment in Kentucky HEALTH will fluctuate for a variety of reasons, including program non-compliance.” Specifically, the application estimates that enrollment, in terms of member months, will decline by 238,00 for the first year, and will total 1.14 million lost member months by the fifth year of the project. As noted in the Stewart opinion and an amicus brief, the lost member months “translate to […] 95,000 lost enrollees per year.” Stewart at 247; Commonwealth of Ky., supra note 6, at 4; Brief for AARP et al. as Amici Curiae Supporting Plaintiffs at 6, Stewart v. Azar, 313 F. Supp. 3d 242 (No. 1:18-cv-152).
12 Letter from Paul Mango, Chief Principal Deputy Admin. & Chief of Staff, CMS Office of the Admin. to Carol H, Steckel, Comm'r, Dep't of Medicaid Servs., (Nov. 20, 2018), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/ky/ky-health-ca.pdf (explaining that as of September 2018, more than 454,000 individuals received medical assistance under the Kentucky state plan as a result of Kentucky's decision to participate in that expansion.”)
13 Centers for Medicare and Medicaid Services, Kentucky Helping to Engage and Achieve Long Term Health (Health) Section 1115 Medicaid Demonstration Fact Sheet (Jan. 12, 2018).
14 Plaintiff's Class Action Complaint for Declaratory and Injunctive Relief, Stewart v. Azar, 313 F.Supp.3d 242 (D.D.C. 2018) (No.1:18-cv-00152).
15 Id. at 66-76.
16 Memorandum in Support of Federal Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgement, Stewart v. Azar, 313 F.Supp.3d 242 (D.D.C. 2018) (No.1:18-cv-152).
17 Stewart, 308 F. Supp. 3d at 237.
18 Id. at 258.
19 Id.
20 Id. at 257.
21 Plaintiff's Class Action Complaint for Declaratory and Injunctive Relief at 73, Stewart v. Azar, 313 F. Supp. 3d 242 (D.D.C. 2018) (No.1:18-cv-00152).
22 Stewart, 308 F. Supp. 3d at 260-61.
23 42 U.S.C. §1315(a)(2012).
24 Id. Judge Boasberg's determination that the Secretary was limited to approving §1115 waivers that advanced the goals of the Medicaid Act is consistent with previous case law. See Bolton, Jonathan R., Note, The Case of the Disappearing Statute: A Legal Policy Critique of the Use of Section 1115 Waivers to Restructure the Medicaid Program, 27 Colum. J.L. & Soc. Probs. 91, 131 (2003)Google Scholar(describing that “‘likely to promote the purposes of the Medicaid program’” is “the only requirement of section 1115 unanimously found by courts to be a limit on the discretion of the Secretary”)(internal citations omitted).
25 Memorandum in Support of Federal Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgement at 12-13, Stewart v. Azar, 313 F.Supp.3d 242 (D.D.C. 2018) (No.1:18-cv-152).
26 Letter from Brian Neale, Deputy Administrator of Centers for Medicare Serv.'s to Adam Meier, Deputy Chief of Staff, Office of Governor Matthew Bevin 3 (Jan. 12, 2018), https://kaiserhealthnews.files.wordpress.com/2018/01/kentucky-1115-memo-and-approval-ltr.pdf.
27 Stewart, 308 F. Supp. 3d at 260
28 Id.
29 42 U.S.C. § 1396–1.
30 Stewart, 308 F. Supp. 3d at 261 (citing Alexander v. Choate, 469 U.S. 287, 289 n.1 (1985); Harris v. McRea, 448 U.S. 298, 301 (1980); Adena Reg'l Med. Ctr. v. Leavitt, 527 F.3d. 176, 180 (D.C. Cir. 2008); W. Va. Univ. Hosps. Inc. v. Casey, 885 F.2d 11, 201 (3d Cir. 1989)).
31 Stewart, 308 F. Supp. 3d at 262, 266 (holding that “this focus on health is no substitute for considering Medicaid's central concern: covering health costs”).
32 Id. at 262.
33 Plaintiff's Class Action Complaint for Declaratory and Injunctive Relief at 73, Stewart v. Azar, 313 F.Supp.3d 242 (D.D.C. 2018) (No.1:18-cv-00152).
34 Id. See also Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, (1983) (stating that an agency “cannot entirely fail[ ] to consider an important aspect of the problem”).
35 Stewart, 308 F. Supp. 3d at 262-65. See Letter from Paul Mango to Carol H. Steckel, supra note 12, at 11 (describing that the initial two federal public comment taking place in September 2016 and July 2017 generated 3,149 public comments).
36 Stewart, 308 F. Supp. 3d at 262, 263-65.
37 Id. at 265.
38 Id.
39 Id. at 274.
40 Letter from Paul Mango to Carol H. Steckel, supra note 12, at 11-12.
41 Id.
42 Plaintiff's First Amended Class Action Complaint for Declaratory and Injunctive Relief at 25, Stewart v. Azar No. 1:18-cv-152 (D.D.C. filed Jan. 14, 2019).
43 Letter from Paul Mango to Carol H. Steckel, supra note 12, at 2-3.
44 Plaintiff's First Amended Class Action Complaint for Declaratory and Injunctive Relief, Stewart v. Azar No. 1:18-cv-152 (D.D.C. filed Jan. 14, 2019).
45 1115 Waiver Tracking, National Health Law Program (Jan. 9, 2019), https://9kqpw4dcaw91s37kozm5jx17-wpengine.netdna-ssl.com/wp-content/uploads/2019/01/1115-Track-Chart-w-Heading-Jan.-9-2019.pdf.
46 Plaintiff's First Amended Complaint for Declaratory and Injunctive Relief, Gresham v. Azar, No. 1:18-cv-01900 (D.D.C. filed Nov. 5, 2018).
47 Plaintiffs' Memorandum In Support Of Summary Judgement at 18, Gresham v. Azar, No. 1:18-cv-01900 (D.D.C. Nov. 5, 2018). (link)
48 Robin Roduwitz et. al., Kaiser Family Foundation, January State Data for Medicaid Work Requirements in Arkansas 1 (2019), https://www.kff.org/medicaid/issue-brief/state-data-for-medicaid-work-requirements-in-arkansas [https://perma.cc/CN5M-2HMY].
49 Under arbitrary and capricious review, courts review an agency's record regarding a decision to determine if “the agency adequately explain[s] its results.” Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993).
50 See Bolton, supra note 24, at 94-95 (noting that “section 1115 waivers have spawned ‘surprisingly little’ litigation in their history […]”).
51 Stewart, 308 F. Supp. 3d at 262.