Clifford E. Barnes, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, and New York offices, authored an article in Law360, titled “Last-Minute Trump Admin. Medicaid Letter Muddles Waivers.” Devon Minnick, Law Clerk – Admission Pending, also contributed to the article. (Read the full version – subscription required.)
Following is an excerpt:
While the Trump administration's time in power has officially ended, it did not go gracefully.
In an eleventh hour move to undermine the Biden administration's capacity to rid the nation of work requirement waivers and Tennessee's Medicaid block grant waiver, Seema Verma, then-administrator of the Centers for Medicare and Medicaid Services, sent a letter of agreement to Medicaid state directors, requesting them to sign an attached set of new onerous policies for rescinding Section 1115 waivers.
Previously, it seemed as though it would be relatively simple for the Biden administration to utilize a clause in all Section 1115 approval letters permitting CMS to "to amend and withdraw waivers … at any time it determines that continuing the waivers … would no longer be in the public interest or promote the objectives [of Medicaid]."
However, since the outgoing administration attempted to undercut the ability to withdraw waivers, the answer is now much murkier. While the Biden administration has retracted Verma's additional guidelines, it is possible that those states that signed the letter will cite Verma's letter of agreement in future lawsuits in an attempt to elongate the existence of work requirements.
