Washington Lawyer - January/February 2025 - 32

TAKING THE STAND
'BEGIN AGAIN' ON
SECTION 1115 WAIVERS
By Peter Leibold
I
n June 2024, D.C. District
Court Judge James
Boasberg wrote a good
opinion in Rose v. Becerra. His
prose flows; his logic persuades;
his Taylor Swift quotes beguile.
I enjoyed reading his decision because
I could almost envision how much he enjoyed
writing it, especially when using this
quote from Taylor Swift's Folklore album:
" Because they've seen this film before (and
they didn't like the ending), Defendants seek
to leave out the side door. "
Ruling against Indiana, Judge Boasberg declared
invalid the state's approved Medicaid
waiver known as the Healthy Indiana Plan
(HIP). Section 1115 of the Social Security Act
allows the secretary of the U.S. Department
of Health and Human Services (HHS) to waive
certain Medicaid requirements for a period of
time to allow states to implement experimental
approaches to Medicaid. HIP 2.0 offered
health insurance coverage to all nondisabled
adults in Indiana with income below 138 percent
of the federal poverty level, but as the
waiver evolved it also restricted coverage in
several ways, such as by charging monthly income-based
premiums and implementing
work requirements.
>>> " Taking the Stand " appears periodically
in Washington Lawyer as a forum for D.C.
Bar members to address issues of importance
to them and of interest to our readers. The
opinions expressed are the author's own, do
not constitute legal advice, and do not necessarily
represent the policies or views of the D.C.
Bar or its Board of Governors. For submissions,
email editorial@dcbar.org.
Following Judge Boasberg's ruling, Indiana
appealed the case to the U.S. Court of Appeals
for the District of Columbia Circuit. In
the spirit of Taylor Swift, I don't want " bad
blood " with Boasberg, a fellow law school
alum for whom I have tremendous respect. I
want the D.C. Circuit to enjoy the " afterglow "
of his tremendous writing and then " breathe, "
" begin again, " and consider the potential
" end game " of affirming his decision for thousands
of Medicaid beneficiaries in red states.
Judge Boasberg has decided other section
1115 waiver cases, namely those against Kentucky
and Arkansas. These waivers involved
policies that the states believed would promote
personal responsibility, give enrollees
an increased stake in their own health outcomes,
and prepare them for ultimately transitioning
to private insurance.
Indiana, for instance, sought and received the
HHS secretary's approval for limits on retroactive
eligibility, a sliding scale of premiums, a
limitation on the state's obligation to provide
nonemergency transport, and a requirement
to provide notice of changes in income or circumstances
within 10 days. These policies are
controversial in some quarters, and they will
undoubtedly result in otherwise eligible patients
being dropped from the Medicaid rolls.
States are not required to cover the Medicaid
" expansion population " after the 2012 U.S.
Supreme Court case National Federation of
Independent Business v. Sebelius. Expansion is
entirely optional. While 41 states (including
the District of Columbia) have expanded, 10
have chosen not to do so. It is worth noting
that some of the red states that expanded
their Medicaid programs did so specifically
because the secretary had approved their
section 1115 waiver requests that included
these types of policies. For example, Michigan's
Republican governor approved Medicaid
expansion legislation in 2013 with the
provision that the Obama administration
grant two waivers involving premiums and
participation in healthy behavior programs.
Judge Boasberg essentially rejects the HHS
secretary's approval of these policies for the
understandable reason that they will result
in less coverage for adults with income up to
138 percent of the poverty level in a health
program specifically designed to expand insurance
coverage for the most vulnerable.
He rationally concludes that they do not serve
the objectives of the Medicaid law. I cannot
disagree with this logic, and the argument
would be absolutely persuasive if Sebelius had
not made the expansion for states optional.
I urge the D.C. Circuit to zoom out and remember
that 10 red states that are prevented
from imposing these types of requirements
may well continue to resist Medicaid expansion,
and some of the 41 that have expanded
may choose to retract their expansions if they
cannot " experiment " in a manner contemplated
by section 1115.
Revisiting Judge Boasberg's rejection of this
argument serves to shine a light on why even
progressive secretaries have elected to approve
waivers containing policy proposals
that they might not support in isolation.
States that expand with conditions, causing
loss of coverage for those who do not meet
the requirements, still provide more health
coverage compared to states that choose not
to expand at all or withdraw their expansion.
In Indiana, for example, the agency handling
its Medicaid program said that if waiver is not
reissued, the state will have to transition
335,000 adults with income up to 100 percent
of the federal poverty level to a health plan
with less coverage. " In the absence of a reissued
HIP Demonstration approval, HIP Basic
will also become the only benefit package
available for certain adult Medicaid members;
and individuals in this group who previously
32 WASHINGTON LAWYER
* JANUARY/FEBRUARY 2025
Washington Lawyer - January/February 2025

Table of Contents for the Digital Edition of Washington Lawyer - January/February 2025
