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June 15, 2022

Waivers in the Wind: How the Change in Presidential Administrations Triggered Litigation over Medicaid 1115 Waivers

This Bulletin is brought to you by AHLA’s Hospitals and Health Systems Practice Group.
  • June 15, 2022
  • Todd Disher , Lehotsky Keller LLP
  • Jeremy Maltz , Lehotsky Keller LLP

With a change in presidential administrations, it is inevitable that some executive agencies will try to change tack based on new policy priorities. But agencies do not have unfettered discretion to undo what prior administrations did or to act in novel ways.

Medicaid is no different. Under the Trump Administration, the Centers for Medicare & Medicaid Services (CMS) granted extensions and modifications to certain states’ demonstration projects under Section 1115 of the Social Security Act (known as “1115 Waivers”). That section allows CMS to approve “any experimental, pilot, or demonstration project which, in the judgment of the Secretary, is likely to assist in promoting the objectives” of Medicaid. 42 U.S.C. § 1315(a). These waivers are critical to many states’ Medicaid programs—not to mention the private providers that deliver care under those programs.


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