Even if waivers are initially granted, there are three reasons why they are not capable of providing sufficient flexibility for long-term Medicaid reform. First, while legal and political considerations are likely to make Medicaid expansion permanent, waivers are designed to be temporary and there is no guarantee that they will be renewed for extended periods. Second, they are highly discretionary and granted by federal officials only for experimental or pilot projects the secretary of HHS deems to be consistent with the goals and objectives of the Social Security Act as modified by the ACA. Finally, despite this broad administrative discretion, waivers granted by HHS will still face unpredictable judicial scrutiny from the federal courts.


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