Section 1115 Medicaid waivers allow states to explore new options for providing health coverage to persons who would otherwise not be eligible and allow states to examine innovative ways to deliver care by waiving certain requirements of the Medicaid Act.
While waivers can be important tools that can help states respond to the needs of low-income individuals, they also present concerns for health advocates working to protect the rights of Medicaid enrollees and promote transparency in state waiver processes.
Sec. 1115 of the Social Security Act allows the Secretary of Health and Human Services to waive some requirements of the Medicaid Act so that states can test novel approaches to improving medical assistance for low-income people.
Under the current administration, several states are seeking waivers to impose harmful cuts and restrictions. The first set of harmful waivers have been approved for Kentucky and Arkansas, with a number of states seeking to enact similar changes to Medicaid. Learn more about Medicaid waivers and how the National Health Law Program is combating the Trump administration’s illegal use of waivers to weaken Medicaid.
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- August 20, 2021
In the Updating Payment Parameters Rule (UPP Rule), the Centers for Medicare & Medicaid Services proposes several important changes to enrollment in the Affordable Care Act (ACA) Marketplaces. These changes include extending the open enrollment period, establishing a year-around Special Enrollment Period for low income persons, restoring key features of the Navigator program such as providing consumers assistance in using their plans, ending the abortion double-billing provision, and restoring guard rails for Section 1332 waivers. NHeLP comments express strong support for these changes, and suggest areas where CMS can go even further to help consumers and reduce the number of insured people.
- August 18, 2021
In comments to the Department of Health and Human Services, the National Health Law Program urges HHS to reject Maryland’s request to waive the Institutions for Mental Diseases (IMD) exclusion for certain private psychiatric facilities.
- July 15, 2021
In 2020, the COVID-19 pandemic plunged the United States into a public health crisis. This situation was not entirely unprecedented. Local crises had previously been triggered by events such as hurricanes (e.g., Katrina in 2005, Irma in 2017), wildfires (e.g., California in 2017 and 2018), lead contamination (Flint, Michigan in 2016), and terrorist attacks (New York City after 9/11). During these events, the Secretary of the Department of Health and Human Services (HHS) used waiver authority to allow affected states to ignore otherwise mandatory Medicaid requirements so that they could use Medicaid as part of the emergency response. These crises, and particularly the COVID-19 pandemic, have made it clear that the current statutes do not give HHS sufficient emergency waiver authority. This paper: Outlines legal authorities that allow HHS and states to adjust their Medicaid programs during an emergency; Identifies deficiencies in these authorities; and Makes recommendations that, if implemented, will better prepare Medicaid programs for the next crisis. The two authorities that HHS and states have turned to the most during emergencies are Section 1115 and Section 1135 of the Social Security Act.
- June 16, 2021
Tension and confusion can arise over how HHS allows states to change their Medicaid programs, whether through a state plan amendment (SPA) or a Section 1115 project. To help guard against the improper use of Section 1115 waivers, advocates must know the distinctions between Section 1115 waivers and SPAs. This primer outlines these distinctions.
- May 20, 2021
Tension and confusion can arise over how HHS allows states to change their Medicaid programs, whether through a state plan amendment (SPA) or a Section 1115 project. To help guard against the impoper use of Section 1115 waivers, advocates must know the distinctions between Section 1115 waivers and SPAs. This primer outlines these distinctions.
- April 27, 2021
In comments to the Department of Health and Human Services, the National Health Law Program urges HHS to reject Alabama’s proposed request to waive the Institutions for Mental Diseases (IMD) exclusion. First, the Secretary may only waive requirements of the federal Medicaid Act to conduct an experiment or test a novel approach to improve medical assistance for low-income individuals, and Alabama has not proposed a genuine experiment or novel approach. Second, Alabama asks the Secretary to waive provisions of the Medicaid Act the Secretary does not have the authority to waive. Section 1115 only permits the waiver of those requirements found in 42 U.S.C. § 1396a, and Alabama requests a waiver of provisions outside of 42 U.S.C. § 1396a, including the “Institution for Mental Diseases” (IMD) exclusion. Third, Alabama’s proposal risks diverting funds away from community-based services, undermining decades of progress toward increased community integration. Last, Alabama proposes several reforms that simply do not require any wavier of the Medicaid Act. Such reforms should be pursued outside of the context of a waiver.
- April 27, 2021
In this application, New Mexico seeks to waive the Institutes for Mental Disease (IMD) exclusion, implement High Fidelity Wraparound Services for an initially limited group of children and youth, institute a Graduate Medical Education Program, and establish vaccine coverage for limited beneficiary categories. For a variety of reasons, NHeLP suggests that the Secretary not approve this amendment request. In particular, NHeLP notes that the state has failed to provide evidence that many of these programs are genuine experiments. Further, HHS does not have the authroity to waive the IMD exclusion because the exclusion is found outside of 42 U.S.C. § 1396a. Additionally, waiving the IMD exclusion would undercut community-based mental health services. Finally, NHeLP notes that intensive care coordination services like High Fidelity Wraparound should be provided as a medically necessary service to all children and youth under the age of 21 through the state's Early and Periodic Screening, Diagnosis and Treatment (EPSDT) mandate.
- February 23, 2021
NHeLP comments opposing work requirements and other harmful proposals in Arizona's Health Care Cost Containment System section 1115 extension application.
- February 23, 2021
NHeLP comments to an Interim Final Regulation opposing HHS's attempt to weaken the Maintenance of Effort requirement protecting Medicaid coverage during the COVID-19 pandemic.
- February 16, 2021
Comments on Utah 1115 Primary Care Network Demonstration Waiver Amendment Request: In Vitro Fertilization and Genetic Testing for Qualified Conditions
In comments to the Department of Health and Human Services, the National Health Law Program asks HHS to reject Utah's proposal to restrict coverage of in vitro fertilization (IVF) services and preimplantation genetic diagnosis (PGD) for Medicaid-enrolled individuals who: (1) have been diagnosed by a physician as having a genetic trait associated with one of five specified conditions; and (2) intend to get pregnant with a partner who also has been diagnosed by a physician as having a genetic trait associated with the same condition. First, Utah's application does not contain a sufficient level of detail to allow for meaningful comment. Second, Utah’s proposal is not likely to assist in promoting the objectives of the Medicaid Act and does not propose an actual experiment. And finally, Utah’s proposal is at best arbitrary, and at worst motivated by the discriminatory motive of trying to avoid providing medical assistance to people with disabilities.