“As Opening Day arrives, the Court finds its guiding principle in Yogi Berra’s aphorism, “It’s déjà vu all over again.”” – Judge James Boasberg, Gresham v. Azar.
On March 27, United States District Court for the District of Columbia Judge James Boasberg ruled that Department of Health & Human Services Secretary Azar’s approval of work and community engagement requirements in Arkansas and Kentucky were arbitrary and capricious, halting their implementation. The Gresham v. Azar opinion may be read here. The Stewart v. Azar opinion may be read here. In both cases, Judge Boasberg found that the Secretary failed to consider the impact of the waiver on coverage, rendering their approvals arbitrary and capricious.
CMS first announced their support for work and community engagement requirements on January 11, 2018 in a Letter to State Medicaid Directors. The next day, January 12, 2018, CMS approved the Kentucky HEALTH waiver. (HL Pulse summary here). Fifteen Kentucky plaintiffs filed a lawsuit against CMS and on June 29, 2018, Judge Boasberg granted an injunction, finding CMS’ approval to be arbitrary and capricious because it didn’t “consider whether Kentucky HEALTH would in fact help the state furnish medical assistance to its citizens, a central objective of Medicaid.” (HL Pulse summary here). Secretary Azar did not appeal Judge Boasberg’s ruling. Following the Court’s decision in June, HHS opened a comment period for Kentucky HEALTH and again approved the waiver on November 20, 2018 (HL Pulse summary here). Kentucky was set to implement Kentucky HEALTH on April 1, 2019. In Arkansas, more than 18,000 people have lost coverage since implementation began in June 2018.
In vacating the Kentucky waiver for the second time, Judge Boasberg was critical of the Secretary’s failure to address the coverage losses anticipated under Kentucky HEALTH, stating that the court’s opinion last June: “offered clear guidance that Section 1115 mandated that coverage considerations be a central part of the analysis. Rather than follow that direction, the Secretary doubled down on his consideration of other aims of the Medicaid Act. Given a second failure to adequately consider one of Medicaid’s central objectives, the Court has some question about HHS’s ability to cure the defects in the approval.”
Judge Boasberg vacated and remanded both approvals to HHS for further consideration. To date, fifteen states have asked CMS for permission to implement a work and community engagement requirement as a condition of eligibility for Medicaid. CMS has approved requirements in eight states.