CMS Begins Internal Purge of Trump-Era Medicaid Policies

Foley Hoag LLP - Medicaid and the Law
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Foley Hoag LLP - Medicaid and the Law

While CMS has been relatively quiet as of late from a public-facing perspective as it waits for new political leadership to arrive (including newly announced CMS Administrator, Chiquita Brooks-LaSure), a recent review by your Editors at www.MedicandandtheLaw.com of CMS’ website indicates a fast-paced effort to roll back a number of Trump-era Medicaid policies, particularly around waiver flexibilities. As I recently mentioned, interim leadership at CMS has already been focused on retracting some last-minute Trump Administration policies, but the changes we have noted are unique in that they have not come in the form of any formal announcements. Here is what we have found so far:

  • Medicaid “Objectives”: As we have previously discussed on this blog, it is longstanding practice for a new Administration to announce new “objectives” for the Medicaid program (for purposes of 1115 waiver approvals) given that the Medicaid statute is largely (although not entirely) silent on these objectives. The Obama Administration had its objectives; when the Trump Administration took office, they summarily replaced these same objectives on CMS’s website with their own. Although no official announcement has been made (we expect that will have to wait until Administrator Brooks-Lasure is confirmed), the Trump-era Medicaid objectives have been stripped from the website as of this writing (to date, they have not been replaced). We already know this CMS will go a very different direction than the previous Administration with respect to waivers (for example, just yesterday Acting Solicitor General Prelogar filed a motion requesting the Supreme Court cancel oral arguments around the challenged Medicaid work requirements), and so it is perhaps no surprise this text has been unceremoniously stripped from CMS.gov. Sidenote: We love the WaybackMachine internet archive as it allows us to track websites even when they change. If you want to see what the Section 1115 Demonstrations website looked like on January 4, 2021 (when the Trump Administration was still in office), just click HERE.
  • Work Requirements: My colleague Regina already told you last week about CMS’ move to reverse the Trump-era Medicaid work requirement approvals. These efforts are also continuing on the inside. All tools and guidance for states to implement so-called “community engagement” requirements have been stripped from CMS website (you can see what it used to look like, HERE). While Administrator Verma’s letter to Governors encouraging them to apply for these waivers is still live on HHS’ website, we suspect its days are numbered.  Given that CMS has already indicated to states with approved work requirement waivers of their intention to retract such authority, we suspect the days of “community engagement” as a frequently used Medicaid term are numbered.

But not all controversial waiver materials have been retracted or disappeared. For example:

  • Block Grants: We already know the recently approved TennCare waiver is on thin ice, but CMS is still hosting on its website materials and tools for states to apply for a “block grant” waiver using the Healthy Adult Opportunity guidance. Could it be that the Biden Administration is considering keeping in place some version of this guidance? We think it is unlikely – but until we see these materials retracted, we can’t say for sure. FYI we previously discussed the Trump Administration’s block grant guidance here.
  • Waiver Flexibilities: As we reported here back in 2017, early on in the Trump Administration, CMS issued an information bulletin on changes and improvements to the existing Section 1115 waiver process. That guidance is still live and could remain in place, at least in part. For example, it was that guidance in which CMS first announced it would approve the extension of routine, non-complex waivers for a period of up to 10 years. We will continue to monitor for changes to this guidance.

Lastly, one broader issue we continue to monitor is the future of HHS’ Good Guidance Practices final rule (which was effective January 6, 2021) and how these rescinded guidance document may (or may not) be reflected on the guidance portal now established and operated by the agency. Will the public be made aware of the rescission of policies enacted through guidance or will the public need to rely on internet sleuths (like myself) to constantly track website changes (we hope the former!)?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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