Jan 25, 2018

Let the Medicaid lawsuits begin

As expected, Kentucky’s newly approved Medicaid work requirements are now being challenged in court, on behalf of 15 named plaintiffs who depend on Medicaid but would not be able to comply with the state’s new mandates.

What they’re saying: The lawsuit challenges HHS’ approval of Kentucky’s waiver on two grounds, including a vi0lation of the Constitution’s “Take Care Clause.”

1. The lawsuit claims HHS’ approval decision violates the Constitution’s “Take Care Clause,” which directs the executive branch to “take care that the laws be faithfully executed.”

  • This will be a tough one to win. The courts haven’t relied on this clause much, and even when they have, it’s sometimes been interpreted as a grant of executive authority as much as responsibility.

2. The challengers also say HHS violated the Administrative Procedures Act by approving a waiver that, in their view, does not further the goals of the Medicaid program (a requirement for the type of waiver Kentucky obtained) and did so without going through the full notice-and-comment rulemaking process.

  • This is roughly the set of claims legal experts anticipated, and will likely form the bulk of this legal debate, both in Kentucky and as it expands along with more waiver approvals.

Reminder: Kentucky Gov. Matt Bevin has directed his administration to pull out of the Medicaid expansion entirely if the courts ultimately block his work requirements from taking effect, so there’s a lot riding on this lawsuit.

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