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Origins of the 1332 State Waiver
Under the ACA, states can apply for a Section 1332 waiver to create experimental programs that differ from federal regulations. States can also apply for a waiver of Medicaid regulations under Section 1115 of the Social Security Act, if they wish to change aspects of their state Medicaid program that is separate of ACA provisions, ,

The waiver does have limits in what aspect of the ACA it may alter. Some purposes of the 1332 waiver include the reform of health insurance marketplaces, available marketplace subsidies, and the employer mandate for businesses with 50 or more full-time employees to provide health insurance coverage. However, the waiver does not apply to other provisions, such as insurance market reform, or the increase in premiums that insurance companies can charge for older, sicker patients compared to their younger, healthier counterparts. The waiver cannot waive insurer’s from having to adhere to the ACA’s requirement of providing insurance regardless of their current health status or any pre-existing health conditions. Policymakers are considering utilizing the 1332 waiver to authorize the implementation of work requirements for Medicaid beneficiaries, like those requirements within TANF. However, courts have previously ruled against states adding additional requirements for Medicaid eligibility would reduce the amount of people able to receive its benefits, which would indicate a loss for those with previous healthcare coverage under the ACA. Additionally, the 1332 waiver cannot be used to discriminate against persons based on sex, gender, age, race, disability, health status, etc. Studies report that if states impose work requirements for Medicaid eligibility, bureaucratic time consumption and administrative costs used to verify and run such a program would reduce the number of Americans able to access healthcare coverage, thereby preventing them from accessing preventative care and other essential care. These outcomes are inconsistent with the ACA and Medicaid’s primary and secondary objectives; hence, no state has yet to receive full approval by the HHS to impose such requirements for Medicaid eligibility,.

Kentucky HEALTH Waiver
The state of Kentucky used this section of the ACA to apply for a waiver on January 11, 2018 to impose work requirements, or “Healthy Behavior Incentives” for those receiving Medicaid in an effort to reduce Medicaid caseloads and state healthcare expenditure. . However, on June 29, 2018, a decision made by the DC Federal District courts in Stewart v. Azar had prevented the federal government from waiving the state’s proposal. The court had states that the CMS did not, “adequately consider whether Kentucky HEALTH [the waiver program] would in fact help the state furnish medical assistance to its citizens, a central objective of Medicaid”,. The HHS Secretary’s approval of Kentucky’s waiver was held by the court to be “arbitrary and capricious”,. The state had estimated that if this proposal was approved, “[the proposal would] lead 95,000 people to lose [Medicaid] coverage”, ,. The courts had cited that because of the loss of coverage for thousands of recipients, the waiver of the proposal would violate ACA statues that mandate any experimental, alternative to be just as comprehensive and as affordable as it was under the ACA. The court had also found that the Secretary of HHS had violated the Administrative Procedure Act by not disclosing this information before the waiver was approved. , . The court also cited that the state of Kentucky could not offer evidence that without the waiver, the state’s economy and its beneficiaries would suffer any harm from the current healthcare system.

Approved and Pending State Waivers
The states of Arizona, Indiana, and New Hampshire had applied for and gotten approved waivers to impose work requirements on Medicaid adults below the ages of 50, 60, and 65, respectively. They had set a minimum of 80/month, 20/week, and 100/month work hours for eligible recipients of Medicaid to meet to receive healthcare coverage. ,