Section 1115 Q & A
National Health Law Program (919.968.6771)
Question: I have heard that my state is considering applying for a
Section 1115 demonstration waiver. How can I find out more about what the state
is planning?
Answer: Section 1115 of the Social Security Act authorizes an
"experimental, pilot or demonstration project which, in the judgment of
the Secretary is likely to assist in promoting the objectives" of the
Medicaid statute. In August, 2001, the Centers for Medicare and Medicaid
Services (CMS) announced the Health Insurance Flexibility and Accountability
(HIFA) Demonstration Initiative. HIFA encourages states to use Section 1115
waivers to expand eligibility to individuals who are not eligible for Medicaid
or the State Children's Health Insurance Program by offering the ability to
limit benefits of some current Medicaid recipients and expedited consideration
of the waiver requests. With this encouragement, a number of states have
applied for waivers and some have already been approved.
Because of the potential negative effect on those currently eligible, it is
important to learn as much as you can about your state's waiver, as early as
possible. Generally, advocates will have to act quickly and do some homework to
stay on top of the issues. Presently, federal law does not require public
notice that a 1115 waiver of Medicaid Act provisions is being planned or
submitted. In September, 1994, HHS issued only a general notice to states that
public notice is expected. The state may also undertake its waiver activities
without prior legislative authorization. To further complicate the situation,
states may develop their proposals in secret, closed door communications with
CMS. Finally, the states have operated under sense of urgency in submitting
their 1115 waiver proposals to CMS, so the waiver process can be rapid.
Despite these obstacles to discovery of information and public
participation, there are numerous places along the waiver process where
protection and advocacy advocates may become formally involved. Obviously, the
earlier the involvement, the better. Listed below are steps you can take to
obtain information and monitor activities in your state:
Learn about the waiver and its contents: Developing helpful contacts with
your state Medicaid agency is essential. As a matter of course, the HHS Public
Health Service may send a copy of your state's waiver to the state primary
health care or community health clinic association. Your contacts with these
organizations can possibly get you early access to information about the
waiver.
Make immediate contacts with the person in the CMS regional office who has
been assigned responsibility for your state's waiver. This person can provide
valuable information about the nature and timing of the CMS review process.
Contact the state legislative bill service to confirm whether legislation
regarding a 1115 waiver is pending. If legislation is pending, inform affected
clients to get involved in the review process to assure that consumer protection
standards are included in the bill.
Obtain a copy of the waiver application as well as any other public
documents that refer or relate to the waiver, including the state's model
health plan/provider contracts and requests for proposal. While agency
personnel may provide you with copies of documents, to be safe, you should also
immediately file both federal and state freedom of information and public
records act requests to obtain the governments information about the waiver
proposal.
Attend public meetings about the waiver. Also inquire whether the state
Medical Care Advisory Committee is participating in policy developments and
program administration, as is required by the Medicaid Act. Submit comments and
attend public meetings.
Inject your clients into the review process by commenting to your state
agency and HHS on the waiver, in writing, at the earliest possible opportunity.
Advocates have important issues to raise at all steps in the process, including
at the very earliest stages when only draft waiver proposals are circulating.
In addition, advocates should be prepared to provide comments on the waiver
application, CMS' questions about the waiver, the state's response to these
questions, draft requests for proposals or applications from private managed
care contractors, draft contracts and draft regulations. Continue to submit
written comments on the waiver, as appropriate. Make sure that you copy all
persons who would be interested in the clients' position on this matter.
Schedule meetings with the appropriate agency personnel. You should be
prepared to address your main arguments orally at a meeting with the state and
to follow up with more extensive written comments. You might also meet with the
regional CMS office. If public hearings are scheduled regarding the waiver, you
and your clients should testify if possible.
Review state legislation to make sure that the administrative agency is
acting within the law in seeking a waiver.
Review the state Administrative Procedure Act. Most state's APA's require
program rules of general applicability to be published, consistent with the
requirements of the state APA. If this is not occurring, both the state and HHS
should be aware of your clients' concerns. Where regulations are proposed,
comment on them.
Obtain information about other states' 1115 waivers. Because these waivers
are similar from state to state, the experiences, information and comments
compiled by attorneys in other states will be especially relevant.
In January and February of 2002, CMS approved waiver requests from Illinois
and Utah. These waivers include provisions that should cause advocates to be
concerned. For example, Utah's waiver allows the state to impose cost sharing
upon and reduce benefits for currently eligible populations while Illinois'
waiver contains a 5 year cap on all Medicaid spending for the elderly and
disabled. Maryland and Tennessee have also submitted waivers and many states
are expected to follow. To help advocates stay on top of developments in this
area, NheLP is compiling these waiver requests and related information on a
Waiver Watch webpage, which can be found at
http://www.healthlaw.org/waiver.shtml.
________________________________________________
1
42 U.S.C. §1315.
2
Compare 42 U.S.C. § 13960(f)(notice of co-payment
waivers)
3
59 Fed. Reg. 49,249 (Sept. 27, 1994).
4
For the addresses and telephone numbers of the CMS
Regional Offices, see Jane Perkins & Sarah Somers, An Advocate's Guide to
the Medicaid Program, Appendix A (National Health Law Program June 2001).
5
42 U.S.C. § 1396a(a)(4).
6
See National Health Law Program, Section 1115 Waivers
Begin to Reshape Contours of Medical Assistance, Health Advocate, Winter 2002.