As I wrote, I think some states will approach the Medicaid expansion option strategically, attempting to extract concessions — favorable waivers — from the Administration. In NEJM, Timothy Jost and Sara Rosenbaum suggest this could be a bit more difficult than I thought.
[S]ome states may press the administration to interpret the expansion as a simple state option, allowing them to cover some portion of the expansion group and not others. This approach has no support in the law and would invite states to leave the most vulnerable members of the expansion group — adults without children — exposed to the worst sort of discriminatory exclusion. The administration may be pressured to enter into negotiations with each state, using its waiver authority. The ACA specifically amended the Medicaid waiver process to ensure that it was used for genuine research, not political horse trading. One can only hope that the states will come to their senses and we all will be spared the spectacle of federal and state governments struggling over the lives and health of the poorest among us. [Bold mine.]
By email, Jost pointed me to the specific section of the law. The amendment is in section 10201 of the ACA, which reads:
(i) Section 1115 of the Social Security Act (42 U.S.C. 1315) is amended by inserting after subsection (c) the following:
‘‘(d)(1) An application or renewal of any experimental, pilot, or demonstration project undertaken under subsection (a) to promote the objectives of title XIX or XXI in a State that would result in an impact on eligibility, enrollment, benefits, cost-sharing, or financing with respect to a State program under title XIX or XXI (in this subsection referred to as a ‘demonstration project’) shall be considered by the Secretary in accordance with the regulations required to be promulgated under paragraph (2).
‘‘(2) Not later than 180 days after the date of enactment of this subsection, the Secretary shall promulgate regulations relating to applications for, and renewals of, a demonstration project that provide for—
‘‘(A) a process for public notice and comment at the State level, including public hearings, sufficient to ensure a meaningful level of public input;
‘‘(B) requirements relating to—
‘‘(i) the goals of the program to be implemented or renewed under the demonstration project;
‘‘(ii) the expected State and Federal costs and coverage projections of the demonstration project; and
‘‘(iii) the specific plans of the State to ensure that the demonstration project will be in compliance with title XIX or XXI;
‘‘(C) a process for providing public notice and comment after the application is received by the Secretary, that is sufficient to ensure a meaningful level of public input;
‘‘(D) a process for the submission to the Secretary of periodic reports by the State concerning the implementation of the demonstration project; and
‘‘(E) a process for the periodic evaluation by the Secretary of the demonstration project.
‘‘(3) The Secretary shall annually report to Congress concerning actions taken by the Secretary with respect to applications for demonstration projects under this section.’’.
So, there must be public notification and comment. Plans must be specified as to the waivers’ goals, costs, degree of coverage provided, etc. There must be periodic reporting and evaluation. Congress must be kept informed. I really have no idea how many teeth this adds or how sharp they are. What could possibly go wrong?*
* No, seriously, is all this enough to keep waivers from being used as political bargaining chips with which to buy state compliance with the expansion? I don’t know.