Hostname: page-component-cd9895bd7-gvvz8 Total loading time: 0 Render date: 2024-12-26T09:40:30.487Z Has data issue: false hasContentIssue false
  • English
  • Français

Medicaid Waivers: Courts Must Step in When the Exception Becomes the Rule

Published online by Cambridge University Press:  01 January 2021

Leonardo Cuello
Get access Rights & Permissions [Opens in a new window]

Abstract

Section 1115 of the Social Security Act is misconstrued as a mechanism to foster state flexibility, when in fact it is a narrow pilot program authority. HHS has exceeded the scope of this authority to approve harmful projects. Courts will not grant the agency broad deference when reviewing this abuse of authority.

Type
Symposium Articles
Information
Journal of Law, Medicine & Ethics , Volume 46 , Issue 4: Next Steps in Health Reform , Winter 2018 , pp. 892 - 896
Copyright
Copyright © American Society of Law, Medicine and Ethics 2018

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Social Security Act §§ 1902(a)(10)(A)(ii), 1905(a), 1932, 1915(i), 1902(a)(5), and 1930(a)(10)(A).Google Scholar
Social Security Act §§ 1115(a).Google Scholar
S. Rep. No. 87-1589, at 19-20, as reprinted in 1962 U.S.C.C.A.N. 1943, 1961-62, 1962 WL 4692 (1962).Google Scholar
Omnibus Reconciliation Act of 1981, Report of the Committee on the Budget House of Representatives to Accompany H.R. 3982, Rept. 97-158, 97th Cong. (1981).Google Scholar
Beno v. Shalala, 30 F.3d 1057, 1069 (9th Cir. 1994).Google Scholar
Social Security Act § 1115(a).Google Scholar
Social Security Act § 1901.Google Scholar
Artiga, S., “The Role of Section 1115 Waivers in Medicaid and CHIP: Looking Back and Looking Forward,” Kaiser Family Foundation (2009).Google Scholar
S. Rep. No. 87-1589, supra note 3.Google Scholar
Arizona's entire Medicaid program has been run through Section 1115 authority since 1982.Google Scholar
Rosenbaum, S. et al., “How Will Section 1115 Medicaid Expansion Demonstrations Inform Federal Policy,” Commonwealth Fund (2006).Google Scholar
See Social Security Act §§ 1932 and 1902(a)(10)(A)(i)(VIII).Google Scholar
Stewart v. Azar, 1:18-CV-00152 JEB (D.D.C. June 29, 2018).CrossRefGoogle Scholar
Centers for Medicare and Medicaid Services, Kentucky HEALTH Approval Letter and Special Terms and Conditions (Jan. 12, 2018).Google Scholar
See Kentucky HEALTH §1115 Demonstration Modification Request application, 11 (July 3, 2017).Google Scholar
U.S. Constitution, Article I, Section 1.Google Scholar
Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001).Google Scholar
National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).Google Scholar
See Social Security Act § 1902(a)(10)(A)(i).Google Scholar
Social Security Act § 1901.Google Scholar
5 U.S.C. § 706.Google Scholar
Traditional Chevron deference is a two-step process. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Court decisions have added a third step, sometimes referred to as “Step Zero,” prior to the two Chevron steps. See Sunstein, C., “Chevron Step Zero,” Virginia Law Review 92, no. 2 (2006): 187–249.Google Scholar
Id.Google Scholar
Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014).Google Scholar
Verma, S., “Lawmakers Have a Rare Chance to Transform Medicaid. They Should Take It.” Washington Post, June 27, 2017; Kentucky HEALTH §1115 Demonstration Modification Request application 3 (July 3, 2017).Google Scholar
See e.g., American Health Care Act, H.R. 1628, 115th Cong. (2017).Google Scholar
See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 122 (2000). Courts might still confer a lower level of deference, sometimes known as Mead deference. United States v. Mead Corp., 533 U.S. 218 (2001).Google Scholar
Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).Google Scholar
Chavkin, W. and Wise, P. H., “The Data Are In: Health Matters in Welfare Policy,” American Journal of Public Health 92, no. 9 (2002): 1392–1395.Google Scholar
5 U.S.C. § 706.Google Scholar
Id.Google Scholar
See Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).Google Scholar
Id.Google Scholar
Stewart v. Azar, 1:18-CV-00152 JEB, 37 (D.D.C. June 29, 2018).Google Scholar