Premiums and Section 1115 Waivers: What Cost Medicaid Expansion?

States reluctant to adopt the Affordable Care Act’s Medicaid expansion are demanding that the U.S. Department of Health and Human Services grant them Section 1115 demonstration waivers that allow them to charge poor people premiums. The U.S. Department of Health and Human Services has yielded to these demands, granting five states waivers of long standing federal statutory protections that limit state discretion to impose premiums for Medicaid. These premium waivers present a fundamental problem of law because the Secretary of the U.S. Department of Health and Human Services has no statutory authority to grant Section 1115 waivers that allow states to impose premiums on Affordable Care Act-eligible adults. The premium waivers the Secretary has granted are not legal and threaten the rule of law in Medicaid by signaling to states that the Secretary is willing to flaunt federal Medicaid law to entice states to implement the Affordable Care Act’s Medicaid expansion. This article provides a detailed look at the premium waivers that the Secretary has granted; a history of the Medicaid Act’s treatment of premiums in Medicaid, explaining why the Secretary has no Section 1115 authority to waive premium protections spelled out in the statute for Affordable Care Act-eligible adults; and what is at stake in terms of federalism, the relative roles of the agency and Congress, and people’s health and welfare. The article concludes by calling on the U.S. Department of Health and Human Services to issue sub-regulatory guidance describing the authority the agency claims to have to grant premium waivers and the parameters for such waivers. State legislatures need and deserve such guidance as they debate whether, and how, to expand Medicaid

Disentitlement? The Threats Facing Our Public Health-Care Programs and a Rights Based Response

In the battle over the future of American health policy, the lines are drawn. On one side are those who seek to turn health care financing and delivery over to private markets that are individualized—where patients strike their own bargains rather than relying on employers or government insurers—and free from governmental mandates. On the other side are those who support a continuing role for government in assuring access to health insurance and health services and in controlling costs and monitoring the quality of care. The lines are hard, fast, and ideological. The most recent skirmish ended November 24, 2003, when Congress finally passed a bill adding a prescription drug benefit to the Medicare program. The prescription drug debate became the latest cover for the ideological battle—should Medicare continue as a government insurance program with a defined benefit package or become a premium support program in which the federal government provides each beneficiary with a set sum of money to purchase fee-for-service care or a private insurance policy, HMO, or PPO plan? In his latest book, Disentitlement? The Threats Facing Our Public Health-Care Programs and a Rights-Based Response, Professor Timothy Jost joins the ranks of those opposed to attempts to move American health care policy toward individualized, private markets. Published prior to the latest clash over Medicare, the book predicts the ideological debate and the philosophical divide. But where others describe the controversy from positions grounded in economics, distributive justice, utilitarian ethics, and public health, Disentitlement focuses on the role that law, legal rights, and courts play in forming and sustaining health systems

Out of the Black Box and Into the Light: Using Section 1115 Medicaid Waivers to Implement the Affordable Care Act\u27s Medicaid Expansion

What price Medicaid expansion? The Supreme Court\u27s decision in National Federation of Independent Business (NFIB) v. Sebelius,\u27 sparked intense debate about how the Secretary of Health & Human Services (HHS) would respond to pressure from recalcitrant states. Policy experts and Sunday-moming pundits predicted that Red States would demand Section 1115 waivers of federal Medicaid rules as the quid pro quo for implementing the Affordable Care Act\u27s (ACA) Medicaid expansion that covers adults with incomes up to 133% of the federal poverty level (FPL). They prophesized that the Obama Administration, desperate to move implementation forward, would have little leverage in its negotiations with states..

Putting the Brakes on Consumer Driven Medicaid: The Failures and Harms of Healthy Indiana Plan (HIP) 2.0

In January 2015, the U.S. Department of Health and Human Services (HHS) granted Indiana a Section 1115 Demonstration Waiver to experiment with consumer driven Medicaid. The Healthy Indiana Plan (HIP) 2.0 combines a $2,500 high deductible with a Personal Responsibility and Wellness (POWER) Account, premiums, and copays. Described as “the most significant departure from traditional Medicaid ever approved,” Indiana claims that the POWER Account, the signature feature of HIP 2.0, is “similar to a health savings account (HSA)” and encourages members to be more cost-conscious consumers, helps familiarize members with how commercial health insurance works, and encourages continuous Medicaid enrollment. This article explains how and why POWER Accounts and HIP 2.0 fail on all counts: The POWER Account does not encourage members to comparison shop and be more cost-conscious consumers. Neither does it help educate Medicaid enrollees about how commercial insurance works because the POWER Account is nothing like a commercial HSA. Most troubling, though, POWER Account premiums create significant barriers to Medicaid coverage. Nearly 60,000 Hoosiers have lost Medicaid coverage because of missed POWER Account premiums and another 300,000 have been moved to more costly, less comprehensive Medicaid plans because of their inability to meet the POWER Account premium requirement. HHS used its authority under Section 1115 of the Social Security Act to grant Indiana a waiver to conduct HIP 2.0 as an “experimental, pilot, or demonstration” project likely to promote the objectives of the Medicaid Act. HHS was wrong. Consumer driven Medicaid does not promote the objectives of the Medicaid Act. Indiana’s HIP 2.0 waiver experiment proves that consumer driven Medicaid suppresses enrollment by creating administrative and financial barriers to coverage

Health Law, Public Law, and Social Justice

I have taught Health Law for almost three decades. In the early years, the course was primarily about private law, the application of contract and tort principles in the context of health insurance coverage and medical care. Federal law of Medicare, Medicaid, EMTALA, and federal civil rights laws always made an appearance. Other federal statutes were added as they came along: HIPAA, the Americans with Disabilities Act, and GINA. Over the years, the course focused more and more on federal statutes until the passage of the Affordable Care Act (“ACA”) in 2010 completed the transition Health law is now a public law course.1 It focuses on federal statutes, and students need to understand the role of Congress, federal agencies, the states, and federal courts. The course explores myriad forms of federalism including Medicaid’s cooperative federalism, the ACA’s “fall back” federalism where the federal government steps in only if the states opt out, and old-fashioned federal law preemption of state law. Health law is now statutory interpretation and administrative law principles in the context of health insurance coverage and health care. Health law continues to be applied law: public law that affects health, health insurance, health care, and public health. About a third to a half of my health law course is devoted to providing students with a better understanding of medical decision making, the organization of health care delivery system, insurance theory, health disparities, and the social determinants of health— how where we live, work, play, and pray impact health Most importantly, Health Law remains a powerful lens through which to explore issues of social justice, social welfare, and law. We all get sick and need medical care. Many of my students and their families have had serious health problems and struggled to access medical care. Some have been bankrupted financially because of the costs of medical care. They know something about health and health care. This course is an opportunity to explore what equity, fairness, and justice mean when we talk about health and healthcare