Social Welfare Law Commons^™

Why Medicaid Is Addressing Homelessness With Section 1115 Waivers: A Critical Examination Of The United States' Federalist Mental Health System, Joshua Haas

Washington Law Review

Housing and health care are deeply interconnected, and their systemic relationship profoundly affects individual and societal well-being. Inadequate funding has undermined the American mental health system for decades, leading to gaps in care that have caused lasting harm to vulnerable individuals and society as a whole. This Comment examines the historical connections between homelessness and the American mental health system. It explores the benefits and criticisms of the United States’ federalist approach to health care, particularly focusing on Medicaid and its “section 1115 waivers,” which grant states flexibility to develop innovative, state-specific Medicaid programs. Recently, states began to utilize section …

Mailing It In: Due Process Requires Technology-Driven Safeguards In Public Benefits, Eric Lukoff

Celebrating WCL Student Authors

Due process in safety net public benefit programs requires agencies to employ modern technology in providing notice that is reasonably likely to reach participants. The Supreme Court has held that due process is dependent on the time, place, and circumstances in which it operates. Scholars have further argued that due process is adaptable to changing facts and circumstances over time. Yet, mailed paper notices remain the standard in providing notice to participants in public benefit programs.

Living in poverty today looks significantly different than it did nearly fifty years ago at the time of Mathews v. Eldridge, where the Court …

Beyond Medicaid Expansion: Addressing The Sexual And Reproductive Health Crisis In Rural Appalachia, Cheyenne Peters

Marquette Benefits and Social Welfare Law Review

In addition to negatively impacting abortion access, the decision

in Dobbs v. Jackson Women’s Health Organization has forced many

clinics in rural Appalachia that previously provided access to holistic

sexual and reproductive health services, such as contraception

management, sexually transmitted infection (STI) testing, and preventative

cancer screening, to close their doors entirely. This has left

many Appalachians living in rural communities with no option for

accessing sexual and reproductive healthcare. However, many people

were never able to access the care even before the recent provider

shortage due to a lack of adequate insurance coverage. This

article explores how Medicaid expansion …

The Death Of The Gid Exclusion: Williams V. Kincaid Revitalizes The Ada For Trans Litigants, Alexandra Newman

Cardozo Law Review

Kesha Williams is a transgender woman with gender dysphoria who spent six months incarcerated in the Fairfax County Adult Detention Center in Virginia. When Williams first entered the facility, she was assigned to women’s housing and given the uniforms typically provided to female inmates. However, upon learning that Williams had not undergone transfeminine bottom surgery, prison deputies stripped Williams of her female undergarments and transferred her to the men’s side of the facility. There, Williams was harassed by other inmates, misgendered by prison deputies, and delayed in receiving medical treatment for her gender dysphoria. Following her release, Williams asserted several …

Supporting Healthy Futures: Capitalizing On Medicaid’S Epsdt Medical Necessity Standard, Teressa Colhoun

Washington and Lee Law Review

Youth mental health is in crisis. Children report increased rates of suicidal ideology, depression, and anxiety. Diagnosis rates soar. Pediatric mental health care remains difficult to access. When services are accessible, they are costly—often sending families into medical debt.

This Note discusses Medicaid’s Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) benefit. Specifically, it studies the EPSDT benefit’s creation, structure, and administration. This Note focuses on the context in which the EPSDT benefit operates, particularly how health care financing models impact benefit administration. It suggests that the EPSDT benefit has the capacity to address crucial gaps in pediatric mental health …

Outdated, Archaic, And Stereotypical: Current Medicaid Income And Asset Limits Discriminate Against Working Individuals With Disabilities, Megan Parker

Akron Law Student Publications

This article critically examines how existing Medicaid income and asset thresholds hinder individuals with disabilities from achieving economic independence. Drawing from her personal experiences, she highlights the challenges faced when employment opportunities threaten eligibility for essential healthcare benefits. The article underscores the tension between the objectives of the Americans with Disabilities Act (ADA) and the restrictive nature of current Medicaid policies, advocating for reforms that align with the principles of equality and self-sufficiency. Parker proposes policy changes, such as increasing income and asset limits and eliminating punitive measures like Medicaid Payback Trusts, to better support the economic advancement of individuals …

An Attempt To Bring Modern Workplace Realities To The Social Security Disability Adjudication System, Robert E. Rains

Dickinson Law Review (2017-Present)

No abstract provided.

The Reincorporation Of Prisoners Into The Body Politic: Eliminating The Medicaid Inmate Exclusion Policy, Mira K. Edmonds

Articles

Incarcerated people are excluded from Medicaid coverage due to a provision in the Social Security Act Amendments of 1965 known as the Medicaid Inmate Exclusion Policy (“MIEP”). This Article argues for the elimination of the MIEP as an anachronistic remnant of an earlier era prior to the massive growth of the U.S. incarcerated population and the expansion of Medicaid eligibility under the Patient Protection and Affordable Care Act of 2010. It explores three reasons for eliminating the MIEP. First, the inclusion of incarcerated populations in Medicaid coverage would signify the final erasure from the Medicaid regime of the istinction between …

Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi

Dickinson Law Review (2017-Present)

No abstract provided.

Predetermined? The Prospect Of Social Determinant-Based Section 1115 Waivers After Stewart V. Azar, Griffin Schoenbaum

Dickinson Law Review (2017-Present)

Section 1115 of the Social Security Act allows the Secretary of Health and Human Services (the “Secretary”) to waive some of Medicaid’s requirements so states can enact “demonstration projects.” A demonstration project is an experiment a state can conduct by modifying aspects of its Medicaid program. To waive Medicaid’s requirements for this purpose, the Secretary must determine that the proposed demonstration project will likely assist in promoting Medicaid’s objectives.

Using this standard, President Trump’s Secretary has approved waiver requests to enact demonstration projects that contain “community engagement” requirements. The U.S. District Court for the District of Columbia has heard each …

Medicaid For All?: State-Level Single-Payer Health Care, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

If single-payer health care is ever to become a reality in the United States, it will very likely be pioneered by a state government, much like Canada’s single-payer system was first adopted in the provinces. Canada’s system operates more like U.S. Medicaid — financed nationally but administered largely by the provinces — than U.S. Medicare. This article describes three basic strategies progressive U.S. state governments are exploring for achieving universal access to high-quality health care and better health outcomes for their residents. First, maximizing eligibility for the existing Medicaid program using matching federal funds. Second, taking up the mantle of …

What To Expect When You’Re Expecting…Tanf-Style Medicaid Waivers, Laura D. Hermer

Faculty Scholarship

Many health policy scholars believe that Medicaid, the federal-state coverage program for lower-income Americans, should remain free from welfare reform trappings such as work requirements that are extraneous to the program. It would seem such requirements would be both inappropriate and counterproductive to the goals of Medicaid. Given the high probability that such requirements will, at least at some level, go into effect during the Trump administration, it bears considering what to expect. What evidence, if any, suggests that imposing welfare reform-style requirements on certain Medicaid beneficiaries will yield harmful results to those beneficiaries, or harmful to Medicaid’s programmatic goal …

Independence Is The New Health, Laura D. Hermer

Faculty Scholarship

Medicaid plays key roles in supporting our nation’s health. Under the Affordable Care Act, Medicaid took an even more central position in public health endeavors by extending coverage in all interested states to millions of adults who typically fell through the health care cracks. Nevertheless, the Trump administration is now undoing these gains by actively encouraging states to curtail access to Medicaid in key respects while using the rhetoric of health.

This article examines Trump administration efforts in two contexts: (1) state § 1115 waiver applications seeking to better align their Medicaid programs with cash welfare and food stamp programs, …

Medicaid: Welfare Program Of Last Resort, Or Safety Net?, Laura D. Hermer

Mitchell Hamline Law Review

No abstract provided.

Disability, Universalism, Social Rights, And Citizenship, Samuel R. Bagenstos

Articles

The 2016 election has had significant consequences for American social welfare policy. Some of these consequences are direct. By giving unified control of the federal government to the Republican Party for the first time in a decade, the election has potentially empowered conservatives to ram through a bill to repeal the Affordable Care Act—the landmark “Obamacare” law that marked the most significant expansion of the social welfare state since the 1960s. Other consequences are more indirect. Both the election result itself, and Republicans’ actions since, have spurred a renewed debate within the left-liberal coalition regarding the politics of social welfare …

Medicaid Maximization And Diversion: Illusory State Practices That Convert Federal Aid Into General State Revenue, Daniel L. Hatcher

Seattle University Law Review

For years, states have been using illusory schemes to maximize federal aid intended for Medicaid services—and then often diverting some or all of the resulting funds to other use. And states have help. Private revenue maximization consultants are hired by states to increase Medicaid claims, often for a contingency fee. We do not know the exact amount of federal Medicaid funds that has been diverted to state revenue and private profit each year, but it is in the billions. Part I of this Article sets out the structure of the Medicaid program and describes states’ use of revenue maximization contractors …

Aliessa V. Novello, Diane M. Somberg

Touro Law Review

No abstract provided.

Administrative Oversight Of State Medicaid Payment Policies:Giving Teeth To The Equal Access Provision, Julia Bienstock

Fordham Urban Law Journal

No abstract provided.

On The Expansion Of “Health” And “Welfare” Under Medicaid, Laura Hermer

Faculty Scholarship

Medicaid was intended from its inception to provide financial access to health care for certain categories of impoverished Americans. While rooted in historical welfare programs, it was meant to afford the "deserving" poor access to the same sort of health care that other, wealthier Americans received. Yet despite this seemingly innocuous and laudable purpose, it has become a front in the political and social battles waged over the last several decades on the issues of welfare and the safety net. The latest battleground pits competing visions of Medicaid. One vision seeks to transform Medicaid from a health care program into …

Supreme Court, New York County, Khrapunskiy V. Doar, Daphne Vlcek

Touro Law Review

No abstract provided.

Observing Observational Status -- Auditors And Inequities

Marquette Elder's Advisor

No abstract provided.

Missing The Forest For The Trees: Why Supplemental Needs Trusts Should Be Exempt From Medicaid Determinations, Jeffrey R. Grimyser

Chicago-Kent Law Review

Supplemental needs trusts are trusts designed to assist individuals with disabilities by paying for services and items that Medicaid will not pay for. Federal law, however, is unclear as to whether using one of these trusts automatically disqualifies someone from receiving Medicaid, thereby causing the circuit courts to split on their interpretation. Some circuits have held that the Medicaid statute allows states to enact laws prohibiting the use of these trusts while receiving Medicaid benefits based on the federal law’s statutory language. While other circuits have ruled that individuals can simultaneously receive Medicaid benefits and use supplemental needs trusts given …

On The Uneasy Relationship Between Medicaid And Charity Care, Laura D. Hermer, Merle Lenihan

Faculty Scholarship

Medicaid and charity care have a lengthy relationship fraught with complications. These complications will remain and in some respects become even more acute following the implementation of the Patient Protection and Affordable Care Act.

This article focuses on the uneasy relationship between Medicaid and charity care, one that becomes particularly acute in the context of Medicaid reimbursement. It traces the lineage of Medicaid in charity, and uses Medicaid reimbursement and supplemental payments as lenses through which to examine the relationship between Medicaid and charity care. The tension that we uncover will need to be resolved if Medicaid is to come …

Rationalizing Home And Community-Based Services Under Medicaid, Laura Hermer

Faculty Scholarship

This article examines efforts states are making to expand access to community-based services for elderly and disabled Medicaid beneficiaries and suggests several options that might improve such access nationally. Like much of Medicaid, Medicaid long term services and supports (LTSS) have developed through a complex process of accretion. Policymakers appear only rarely to have considered an overarching view of such services and the needs of those who require them. Rationalizing Medicaid LTSS will accordingly require not only additions but also substantial pruning, and may even warrant a reconsideration of who should have ultimate authority to develop and direct such services. …

Crafting A Narrative For The Red State Option, Elizabeth Weeks Leonard

Scholarly Works

This Article examines the current state of play following the Supreme Court's decision in NFIB v. Sebelius to allow states the option of expanding their Medicaid programs in accordance with the Patient Protection and Affordable Care Act (ACA). Holding that mandatory expansion was unconstitutionally coercive, the Court created the Red State Option. Despite the enormously generous federal financial support for Medicaid expansion, close to half of the states have declined. At the same time, at least eight Republican-led states have crossed Tea Party lines to accept federal funding for expansion. Drawing lessons from these states, including Arkansas, Arizona, Michigan, and …

If A Right To Health Care Is Argued In The Supreme Court, Does Anybody Hear It?, W. David Koeninger

Indiana Journal of Law and Social Equality

No abstract provided.

Advocacy In Health Proceedings In New York State, Kia C. Franklin

Touro Law Review

Individuals and communities navigating the healthcare system without an advocate often experience devastating outcomes and become burdened with unnecessary costs. These negative outcomes undermine the very utility of our healthcare system. The creation of a legal right to counsel for individuals with critical health related claims would meet an important and unmet need in our health and legal systems by empowering patients, improving the quality of health for many, and preventing unnecessary costs to the health care system.

A dedicated group of healthcare advocates, lawyers, public policy analysts, and other concerned individuals gathered together at Touro Law Center to strategize …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Elizabeth Weeks Leonard, Nicole Huberfield, Kevin Outterson

Scholarly Works

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …

Tortious Interference With The Expectancy Of Entitlement Benefits, Paul Caritj

University of Michigan Journal of Law Reform

This Note proposes a new tort to address employers' and their agents' increasing abuse of the Unemployment Insurance appeals process, which interferes with employees' expectancy of entitlement benefits. Though existing state Unemployment Compensation statutes sanction both unemployed workers claiming benefits and employers for making fraudulent statements, these provisions approach the issue of fraud too narrowly to combat this growing problem. Meanwhile, no existing remedy properly compensates victims of this sort of abuse, adequately deters abusive behavior by scaling the penalty to the harm, and is accessible to economically disadvantaged plaintiffs. As well as providing an analysis of the specific problem …

Federal/State Tensions In Fulfilling Medicaid’S Purpose, Laura Hermer

Faculty Scholarship

Medicaid has been subject to reconsiderations of the proper role of government in providing for the health and welfare of populations over recent decades. Over the last decade in particular, a number of states have transferred many functions that they once performed to private entities, including, in a number of cases, express policymaking functions. The Patient Protection and Affordable Care Act (ACA) takes some crucial steps towards readjusting the equilibrium of Medicaid. Rather than further prioritizing the market in its reforms, it gives the federal government stronger charge of Medicaid policy, refocusing the program more directly on expanding eligibility and …