1115 Waiver Requests: Analysis and Overview Chart

1115 Waiver Requests: Analysis and Overview Chart

(Chart updated January 26, 2018 and reflects most recent approvals in Kentucky. An updated chart can be downloaded here)

Medicaid operates as a federal-state partnership: the federal government provides states with generous funding, but states must adhere to the requirements of the federal Medicaid statute and regulations.

Now that Congress has failed in its legislative attempts to dismantle Medicaid, the Trump administration is eyeing HHS’s Section 1115 waiver authority as a way to achieve through administrative action what it could not accomplish through legislation.

Sec. 1115 of the Social Security Act allows the Secretary of HHS to waive some requirements of the Medicaid Act so that states can test novel approaches to improving medical assistance for low-income people. To be approved, a waiver must:

  • implement an “experimental, pilot, or demonstration” project;
  • be limited to the subset of Medicaid provisions in one specific section (42 U.S.C. Sec. 1396a);
  • be likely to promote Medicaid’s objectives;
  • and be limited to the extent and period needed to carry out the experiment.

While historically states have proposed waivers that did indeed propose innovative approaches to improve Medicaid and expand coverage, now, at HHS’s urging, several states are seeking waivers to impose harmful cuts and restrictions.

Seema Verma, the administrator of the Centers for Medicare and Medicaid Services, has repeatedly signaled a willingness to allow states to dramatically reshape and limit their Medicaid programs using Sec.1115. In fact, Verma has spoken out against Medicaid expansion, and touted Sec. 1115 waivers as a means to limit access to Medicaid.

The current crop of waiver requests would roll back the significant progress that has been made in expanding health insurance coverage by conditioning access to Medicaid on such things as work requirements, drug testing, unaffordable premiums, and high copayments for even emergency use of an emergency department, imposing enrollment caps or lifetime limits, and creating punitive lock-out periods for noncompliance with these new hurdles.

The chart below provides an overview of the harmful waiver provisions that have been proposed to-date. The chart can also be downloaded as a PDF here.

 Proposal Explanation of ProposalCurrent Law States
Limits on Eligibility
 Work RequirementsCondition eligibility of “able-bodied adults” on completing 20-40 hours of weekly work activities, such as paid employment, volunteering, or approved job training and search activities.

Number of hours required, categories of approved work activities, and exempt populations vary by statePrevious administration rejected similar proposals as inconsistent with objectives of Medicaid Act Current administration issued guidance on January 11, 2018 supporting work requirementsPending: AR, AZ, IN, KS, ME, MS, NC, NH, UT, WI Approved: KY
Lock Out PenaltiesImpose a lockout penalty that bars an individual from receiving Medicaid coverage during the lockout period for non-compliance with one or more eligibility conditions (e.g., work requirements, payment of premiums, reporting requirements). Length of lockout periods varies by state, but ranges from 3-9 monthsAt least one state (Indiana) has implemented a waiver authorizing a 6-month lockout for failure to pay premiumsPending: AR, IN, KS, ME, NM, UT, WI Approved: KY
 Drug TestingRequire individuals to complete drug screening and testing, and if test is positive, to enter treatment as a condition of eligibilityNot currently authorizedPending: WI
Presumptive EligibilityEliminate ability of hospitals to determine an individual presumptively eligible for Medicaid in order to provide coverage for unforeseen medical expensesNot currently authorizedPending: ME, UT
Retroactive CoverageRemove obligation of states to retroactively cover medical expenses incurred in the three months prior to date of application for individuals who would have been eligibleSome waivers have been approved as part of a broader package to expand coverage and with additional protections to encourage enrollmentPending: AR, AZ, IN, ME, NM Approved: IA, KY
Partial Medicaid ExpansionLimit the Medicaid Expansion under the Affordable Care Act to income cut offs less than 133% FPLNot currently authorizedPending: AR, MA, MI
Asset TestLimit Medicaid eligibility to individuals with assets less than $5,000 in value.Not currently authorized. The ACA eliminated the asset test for certain populations and required use of Modified Adjusted Gross Income (MAGI) insteadPending: ME
Enrollment Limits
Enrollment Time LimitImpose a 6-month lockout penalty for individuals enrolled in Medicaid for 48 months. Months that a beneficiary is working do not count towards the 48-month limitNot currently authorizedPending: WI
Lifetime LimitsLimit total number of months an individual can receive Medicaid over the course of his or her lifetime. Lifetime limits vary by state, from 36 months to 60 monthsNot currently authorizedPending: AZ, KS, UT
Enrollment CapLimit the total number of individuals enrolled in the Medicaid expansionNot currently authorizedPending: UT
Benefit Reductions
Non-Emergency Medical TransportationEliminate coverage of non-emergency medical transportationSome states have received waivers of this provision in the past.Pending: AZ, IN, MA Approved: KY
Early and Periodic, Screening, Diagnostic and Treatment (EPSDT)Eliminate requirements to cover comprehensive preventive and treatment services for children under age 21At least one state (Oregon) has received a waiver of EPSDT requirements as part of a comprehensive waiver package, and another state (Utah) recently received a waiver of EPSDT for 19 and 20 year olds as part of a limited substance use/mental health waiver.Pending: UT (for 19 and 20 year-olds), NM (for 19 and 20 year-olds)
Restricted FormularyLimit covered pharmaceuticals to a closed formulary covering only one drug per therapeutic classNot currently authorizedPending: AZ, MA
Increased Costs for Beneficiaries
Premiums for Individuals < 150% FPLCharge monthly premiums for Medicaid coverage for individuals with incomes from 0% to 150% FPL. Amounts charged vary by state, but range up to $37.50 per monthMedicaid statute prohibits premiums on this low-income population, but allows some premiums for populations with incomes above 150% FPL.

In the past, some states have obtained waivers to impose certain premiums on these low-income populations. (e.g., Indiana and Michigan)

Pending: IN, ME, NC, NM, WI, MI (extension of current waiver) Approved: KY
Emergency Department Co-PaymentsCharge beneficiaries for use of the emergency room. Some states limit the copayment to nonemergency use only, while others apply the copayment to any visit. Charges range from $8 to $75Federal statute authorizes copayments on non-emergency use of the emergency department, under highly circumscribed conditions, and certain states have implemented these copayments.

Copayments for emergency use of the emergency department not authorized.

Pending: IN, ME, NM, UT, WI Approved: KY
Missed Appointment FeesCharge beneficiaries fees for missed appointmentsNot currently authorizedPending: NM
Behavior IncentivesRequire beneficiaries to complete a risk assessment and/or adjust premiums or cost-sharing based on answersSome states have obtained waivers to implement healthy behavior incentives (e.g., Michigan)Pending: WI, IN, NM, MI (extension of current waiver)
Unilaterally Change Eligibility RequirementsAllow state to change eligibility requirements without seeking CMS approval.Not currently authorizedPending: UT

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