Vol. 24 Annals of Health Law 341
eral government provides matching funds for qualified state expenditures,
and these matching Medicaid funds comprise the largest share of federal
revenues to states.24 In exchange for these funds, federal statutes and regulations establish minimum requirements for state Medicaid programs including “mandatory” populations to cover and mandatory benefits.25 However, beyond these minimum requirements, states have significant
flexibility to make choices about who qualifies for coverage, what additional benefits to cover, and how to fund and deliver medical services.26 States
must submit their plans to the federal agency, the Centers for Medicare &
Medicaid Services (“CMS”) within HHS, for approval.27 In order to implement policy changes that deviate from federal requirements, states must
seek approval from CMS for a “waiver” from these federal requirements.28
The Secretary of HHS has the authority to approve waivers so long as the
waiver “is likely to assist in promoting the objectives” of the Medicaid
Act29 (“Act”).30 In addition to reviewing state plans, CMS collects data to
monitor how federal funds are spent.31
1. HHS Oversight is Insufficient to Ensure Compliance with the Federal
This federal agency oversight, however, has been insufficient to ensure
that states comply with federal requirements or that low-income individuals
receive and maintain adequate access to health care. HHS has limited authority to enforce the statutes and regulations governing state Medicaid
programs; the only remedy available to HHS is withholding some or all of
the federal matching payments until the state remedies the violation.32
and people with disabilities. Id.
23. FEDERAL CORE REQUIREMENTS, supra note 21, at 1.
24. SMITH ET AL., supra note 22, at 8.
25. 42 U.S. C. A. § 1396a(a)(10) (West, WestlawNext through P.L. 113-174).
26. FEDERAL CORE REQUIREMENTS, supra note 21, at 2.
28. Id. at 3.
29. Medicaid was enacted as Title XIX of the Social Security Act, but is also known as
the Medicaid Act. See, e.g., Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 501 (1990).
30. 42 U.S. C. A. § 1315(a) (West, WestlawNext through P.L. 113-174); accord
FEDERAL CORE REQUIREMENTS, supra note 21, at 3.
31. FEDERAL CORE REQUIREMENTS, supra note 21, at 3.
32. 42 U.S. C. § 1396c (West, WestlawNext through P.L. 113-174) (stating the Secretary has the discretion to limit payments “to categories under or parts of the State plan not
affected by” the state’s noncompliance). Although in National Federation of Independent
Business v. Sebelius, the Supreme Court found that the application of the remedy in § 1396c
to the Medicaid expansion population unconstitutional, the decision was limited to the Medicaid expansion population (adults with incomes under 133% of the Federal Poverty Level).
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2607 (2012) (“the Secretary [of
HHS] cannot apply § 1396c to withdraw existing Medicaid funds for failure to comply with