Category Archives: Litigation

Before jumping into the latest litigation over Medicaid waivers, Medicaid and the Law would like to introduce its readers to Adam Schilt. Adam is a healthcare associate in the Washington, DC office and will be a regular contributor to the blog. In a past role, he’s written pieces of legislation that have been enacted into the Medicaid statute and continues to be very passionate about the subject,… More

This week’s news that Justice Stephen Breyer would step down from the Supreme Court at the conclusion of the Court’s term definitely caught our attention here at the Medicaid and the Law Blog.  Our view is that Justice Breyer – who, for whatever reason, did not get a significant amount of attention from the mainstream media – had a monumental influence on the American health care system,… More

Update: On November 10, 2021 Eli Lilly filed a notice of appeal in the case Eli Lilly and Company v. Becerra case challenging the October 29th decision by the Southern District of Indiana.

Over the last two weeks we have seen a flurry of activity from U.S. District Courts across the country in the ongoing contract pharmacy disputes between pharmaceutical manufacturers and HRSA,… More

Like the Brood X cicadas emerging from their 17-year chthonic slumber, summer 2021 saw the reemergence of something else set to dominate headlines: 340B contract pharmacies.  Given the link between the Medicaid drug rebate program and 340B, we at Medicaid and the Law cover relevant 340B topics for our readers.

Today, we are discussing the “340B Contract Pharmacy Saga” in light of the Department of Health and Human Services (HHS) Office of General Counsel’s (OGC’s) June 18 announcement withdrawing Advisory Opinion 20-06. … More

Hello Everyone! My name is Tyrus Jackson and I am one of the summer associates for the Healthcare practice at Foley Hoag. I just finished my 2L year at the George Washington University Law School and have my MPH from GW’s School of Public Health.

Medicaid providers seeking to directly challenge HHS rulemaking recently found success in the 2nd Circuit.… More

On April 22, 2021 the Tennessee Justice Center and the National Health Law Program, representing thirteen (13) aggrieved Medicaid beneficiaries in the state of Tennessee, filed suit in the U.S. District Court for the District of Columbia against the U.S. Department of Health and Human Services (HHS) seeking to block the implementation of the TennCare III “modified block grant” 1115 waiver approved in the waning days of the Trump Administration.… More

Readers of our blog know that Haider, Alex and I have a longstanding interest in the intersection of health care law and immigration law.  That’s important for our blog, especially because of the needs of the immigrant community to be able to access critical healthcare services through the Medicaid program.  Over the past couple of years, we’ve written extensively about a regulation published by the Department of Homeland Security (DHS) in 2019 that’s known as the “public charge” rule. … More

On March 11, the Supreme Court removed the dispute over Medicaid work requirements, which was previously scheduled for March 29, from its argument calendar.  It is worth noting that the Court did not issue a ruling with its cancellation notification.

Recall how the High Court granted certiorari to Azar v. Gresham and Arkansas v. Gresham on December 4, 2020. … More

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,… More

A few years ago, we told you about the “ongoing saga” surrounding the ability of a Medicaid beneficiary or a provider of health care services to a Medicaid beneficiary to challenge a state Medicaid agency’s putative violation of a requirement of the Medicaid program.  For example, section 1902(a)(8) of the Social Security Act says that a state Medicaid agency must provide Medicaid benefits “with reasonable promptness to all eligible individuals.”  Well,… More

Before getting into the weeds of how notice-and-comment rulemaking requirements interact with CMS’s ability to set payment policy – Medicaid and the Law would like to formally introduce its readers to Alexander Somodevilla (Alex), a new Associate in the Washington, DC office who will become a regular contributor to the blog. Alex has a deep background in Medicaid and Medicare law and policy, and is passionate about the issues and far-reaching impact of these programs.… More

We’ve written before about the 340B program, which allows some health service providers that treat low-income patients to purchase outpatient prescription drugs at  deeply discounted prices.  It’s related (at least tangentially) to our blog because of the link between the 340B program and the manner in which the Medicaid program pays for outpatient drugs; essentially, the price that a 340B covered entity pays for a drug is the price that Medicaid would pay for the drug when it’s dispensed to a Medicaid patient:  at least 23.1% off of the manufacturer’s price of the drug.… More

UPDATED 2.25.2020 to reflect decision in Wolf v. Cook County, Illinois

Last summer, we wrote about the Department of Homeland Security’s (DHS) public charge rule.  As a reminder, that rule added some definition to the grounds of inadmissibility to the United States because of the likelihood that an applicant for an immigration benefit – such as a green card applicant or an individual seeking a visa to enter the United States – is likely to become a “public charge.”  We’re interested in that here at the Medicaid and the Law Blog because one of the factors that the final regulation would consider is whether the applicant has ever used Medicaid in the past or was likely to do so.… More

The Centers for Medicare & Medicaid Services (CMS) suffered a big loss in court last week.  The United States Court of Appeals for the D.C. Circuit upheld a lower court ruling that blocked CMS from implementing one of the hallmarks of the Trump Administration’s efforts to restructure the Medicaid program.  We first wrote about the agency’s attempts to require some Medicaid recipients to participate in community engagement activities back in 2018. … More

UPDATED: It’s out! The much anticipated guidance, entitled the “Healthy Adult Opportunity” (HAO), from CMS introducing ways to revamp Medicaid financing has been out for nearly a week and we have had some time to review the guidance in more detail. We’ve update our questions below with answers based on our review of the guidance document.

As previously reported here on the blog,… More

We have long covered the handful of lawsuits that have been filed over the past several years concerning Medicaid disproportionate share hospital (“DSH”) payment policies.  These lawsuits all revolve around some steps that CMS had taken in recent years to exclude payments made for dual-eligible (Medicaid and Medicare) patients and payments made by private insurers from DSH hospitals’ uncompensated care costs.  CMS promulgated a rule to this effect,… More