Returning Attention to State ACA and Medicaid Waivers

by Sam Halabi — Sunday, Mar. 26, 2017

Now that the potential repeal of Obamacare is off the table (at least for a while), it’s worth turning attention (by all stakeholders) to one of Obamacare’s provisions crafted to accommodate approaches advocated across the political spectrum as well as the balance between local and national scale: Section 1332 State Innovation Waivers and Section 1115 Medicaid waivers. These waivers allow states to experiment with coverage options that are as comprehensive and affordable as would be provided absent the waiver, provide coverage to a comparable number of residents of the state as would be provided coverage absent a waiver, and do not increase the federal deficit. Seven states already have approved Section 1115 waivers to implement the ACA Medicaid expansion in ways that extend beyond the flexibility provided by the law. Alaska, California, Hawaii, and Vermont have submitted 1332 Waiver applications. Oklahoma and Minnesota are studying 1332 options. To be sure, if the Secretary of HHS exercises his/her wide authority to permit waivers in ways that disfavor Democratic- versus Republican-controlled state proposals, it is likely to exacerbate already severe political tensions. Under the Obama administration, for example, authorized Section 1115 waivers included using Medicaid as premium assistance; charging premiums above federal limits; eliminating non-emergency medical transportation; and offering healthy behavior incentives to reduce premiums and/or co-payments, policy alternatives that reflect different views toward the coverage problem. Even under the law disfavored by majorities in Congress and the White House, there is a way to reach a win-win for both the uninsured and political partisans.

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About Sam Halabi

Professor Halabi is a scholar of national and global health law with a specialization in health services, pharmaceutical and agrifood business organizations. He serves as a Scholar at the O'Neill Institute for National and Global Health Law at Georgetown University, where he has also served as a special advisor to the Lancet-Georgetown University Commission on Global Health and Law. His work is published in the American Journal of Law and Medicine, the Harvard International Law Journal, the Journal of Law, Medicine, and Ethics, the Lancet, and the Journal of the American Medical Association (JAMA). He has also published volumes on pharmaceutical regulation and global management of infectious disease with Oxford University Press and Elsevier Academic Press. Before earning his J.D. from Harvard Law School, Professor Halabi was awarded a British Marshall scholarship to study in the United Kingdom where he earned an M.Phil in International Relations from the University of Oxford (St. Antony’s College). During the 2003-04 academic year, he served as a Rotary International Ambassadorial Scholar at the American University of Beirut.

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