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Saint Louis University Journal of Health Law & Policy

Document Type

Symposium Article

Abstract

Congress enacted the Medicaid Act with the stated purpose of furnishing medical assistance to low-income people. Medicaid participation is not required of a state, but if a state does choose to participate—which they all do—the federal government will contribute the lion’s share of the cost of providing care. In return, the state agrees to pay the remaining costs of care. The state must also adhere to the detailed regulatory scheme Congress placed in the Medicaid Act, including requirements for determining eligibility for the program and the scope and affordability of coverage. Section 1115 of the Social Security Act authorizes the Secretary of the U.S. Department of Health and Human Services to allow states to waive (or ignore) certain requirements to undertake time-limited, experimental projects that are likely to promote the objectives of the Medicaid Act.

Unlike previous administrations, President Trump is using Section 1115 to implement restrictive policies, including mandatory work requirements, that will result in dramatic coverage losses. Such policies will, in the President’s words, “explode” the Affordable Care Act and its Medicaid expansion. This article will provide an overview of the nature and scope of the Section 1115 experimental waiver authority and describe how administrations have exercised that authority over time. The final sections of this article discuss cases filed by Medicaid beneficiaries to challenge the current administration’s actions and explore two table-setting legal questions these cases raise: (1) does the Secretary have plenary, unreviewable authority to decide whether to approve a Section 1115 waiver and, (2) if not, what level of deference, if any, should the courts give the Secretary’s decision?

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