The Medicaid and CHIP Payment and Access Commission (MACPAC) voted on January 27 to recommend that Congress grant states the ability to limit Medicaid coverage for drugs and biologicals approved under the FDA’s accelerated approval pathway. The Commissioners were presented with two options for recommendation. The first option was for Congress to amend Section 1927(d)(1)(B) of the Social Security Act to allow states to exclude or restrict coverage of a covered outpatient drug based on a Medicare national coverage determination (NCD) including the coverage with evidence development (CED) requirements.… More
CMS Rings in the New Year with Updated Guidance on ‘In Lieu of Services and Settings’ (ILOS) in Medicaid Managed Care
Welcome back! We hope everyone had a great start to 2023. A new year provides an opportunity to look back on previous successes and identify areas for growth (this said, we certainly don’t expect everyone to make—let alone adhere to—a “new year’s resolution!”).
In its recent letter to state Medicaid directors, the Centers for Medicare and Medicare Services (CMS) encourages states to build on past efforts to address Medicaid beneficiaries’ social determinants of health (SDOH) by implementing an innovative option to meet beneficiaries’ health-related social needs (HRSNs).… More
Section 1983’s Private Right of Action Might Live to See Another Day: An Overview of Oral Arguments in HHC v. Talevski
On the morning of November 8, while many Americans were still casting their votes and getting ready for Election Night parties, the Supreme Court heard oral arguments for Health & Hospital Corporation of Marion County v. Talevski. At issue in Talevski is whether a Medicaid beneficiary can file a “Section 1983” civil rights suit in federal court to seek relief for violation of the 1987 Federal Nursing Home Reform Act (FNHRA).… More
HHS Ordered to Correct Medicare Payments to 340B Hospitals for Remainder of 2022
We have noted before the link between the Medicaid prescription drug rebate program and the 340B program. As we wrote in an earlier Client Alert, in June 2022, the U.S. Supreme Court struck down HHS’s Medicare payment cuts to 340B hospitals for separately payable outpatient drugs. The Court then remanded to the district court to determine the appropriate remedy. The 340B-specific Medicare payments started in 2018,… More
CMS Approves Two New Medicaid Waivers to Expand Coverage, Provide Flexibilities
On September 28, 2022, the Centers for Medicare & Medicaid Services (CMS) issued approval letters for Section 1115 Medicaid demonstration applications previously submitted by Oregon and Massachusetts. Section 1115 waivers allow the Secretary of Health and Human Services to waive certain provisions of the Medicaid law to provide states with additional flexibilities to design and improve their Medicaid programs through experimental, pilot, or demonstration projects. These projects must be budget neutral and are approved for a five-year period,… More
CMS Releases Long-Awaited Proposed Rule to Ease Medicaid Enrollment Burdens
Before delving into CMS’ long-awaited proposed rule to ease Medicaid enrollment burdens, Medicaid and the Law would like to formally introduce its readers to Kian Azimpoor, a Law Clerk in the Washington, DC office who will serve as a regular contributor to the blog. Using his experiences from Capitol Hill and the MD Anderson Cancer Center, Kian looks forward to exploring the far-reaching impact of Medicaid and Medicare law.
On September 7,… More
Medicaid’s Right of Recovery Against Legal Settlements
The United States Supreme Court recently answered an important question in Medicaid law: can a state Medicaid plan recover funds from a legal settlement involving a Medicaid beneficiary to pay for that beneficiary’s future medical expenses? This question required the Court to first unlock several interlocking provisions of federal Medicaid law. And, in answering this question in the affirmative, the Supreme Court also likely affected the future structure of settlement arrangements negotiated by personal injury lawyers on behalf of Medicaid beneficiaries.… More
Enforcing Medicaid’s Requirements in the Federal Courts
The Supreme Court has announced that it will consider a case next term that has the potential to upend several decades of jurisprudence involving the Medicaid program. It involves a complicated area of the law, and in writing about this topic in the past, we have described the developments in this area of the law as a “saga.” In granting review in the case of Health and Hospital Corporation of Marion County v.… More
Averting a Medicaid Coverage Cliff: CMS’s Continuous Enrollment Unwinding Guidance
Bracing for the inevitable end of the COVID-19 Public Health Emergency (PHE), CMS has begun issuing voluminous guidance to states on unwinding Medicaid’s continuous enrollment requirement without precipitating a calamitous drop in coverage. We’ve previously discussed the continuous enrollment requirement here, here and here.
By way of background, section 6008 of the Families First Coronavirus Response Act (FFCRA),… More
Summary and Considerations on CMS’ RFI on ‘Access to Coverage and Care in Medicaid & CHIP’
The Medicare and Medicaid programs themselves are not old enough to qualify for Medicare coverage (quick history lesson: President Lyndon Johnson signed the Social Security Amendments into law on July 30, 1965, and the Medicaid program launched on January 1, 1966; note that CMS traces the origin of its programs back to President Theodore Roosevelt’s advocacy for social insurance). Over the past half-century (and then some),… More