Clifford E. Barnes, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, and New York offices, was quoted in Bloomberg Health Law & Business News, in “Federal-State Health Waiver Talks Are Less Indulgent, More Open,” by Christopher Brown.

Following is an excerpt:

The Biden administration’s swift and public actions to undo state work requirements for Medicaid breaks from the generally indulgent past approach to pilot health programs, signaling a forthcoming transformation in the waiver system.

The Department of Health and Human Services’ recent notices to several states that it’s rolling back Trump-era must-work rules for adults on Medicaid is straight out of the administrative-law playbook, involving public notice and an opportunity for hearings before an HHS review board. That sets up the agency’s likely defense against further litigation down the road.

The new strategy contrasts with a history of federal-state wrangling over the Medicaid pilot projects characterized more by backroom discussions—and sometimes naked financial bullying, health professionals say. …

Pressure Tactics

The CMS’s usual way of bringing changes in state pilot programs is to wait until a state seeks to renew its waiver, Mann said. This can happen at the end of the waiver’s approval period or earlier if a state decides it wants to modify its project midstream. …

It’s all part of the “quid pro quo” relationship between the federal government and the states in running the Medicaid program, a joint federal-state undertaking, said Clifford Barnes, a partner at Epstein Becker Green in Washington, D.C.

“What happens in the Section 1115 waiver process is this: The feds say, ‘If you include my priorities, I’ll approve your priorities, and let’s see if we can do it in a way that I can get my priorities done, and you can get yours done,’” he said.

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