Stewart v. Azar (313 F. Supp. 3d 237, 2018)

JAMES E. BOASBERG, United States District Judge

In 2010, Congress enacted the Patient Protection and Affordable Care Act-popularly known as Obamacare-which is "a comprehensive national plan to provide universal health insurance coverage" across the nation. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 583, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). One central component of that statute was an expansion of Medicaid, allowing states to provide "health care to all citizens whose income falls below a certain threshold." Id. at 531, 132 S.Ct. 2566. This "expansion," the Supreme Court has held, represented "a shift in kind, not merely degree." Id. at 583, 132 S.Ct. 2566. While the "original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children," the Affordable Care Act "transformed" Medicaid "into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level." Id.

Defendants in this case have sought to roll back those reforms. Upon assuming office in March 2017, Defendant Seema Verma, the Administrator for the Centers for Medicare & Medicaid Services-along with then-Secretary of the Department of Health and Human Services Tom Price-immediately circulated a letter to the Governors of all states to share her belief that the ACA's Medicaid expansion "was a clear departure from the core, historical mission of the program." Sec'y of Health & Human Servs., Dear Governor Letter (Mar. 14, 2017), https://www.hhs.gov/sites/default/files/sec-price-admin-verma-ltr.pdf. The letter encouraged states to apply for "waiver[s]" of some of the program's coverage requirements-especially for the expansion group-promising to "fast-track" approval of such petitions. Id.

Kentucky is one state to board that train. After the ACA went into effect, it elected to broaden Medicaid to include the expansion population, and by April 2016, more than 428,000 new residents had thereby received medical assistance. In July 2017, however, the state submitted an experimental plan to CMS called "KY HEALTH," which is made up of several components, most significantly Kentucky HEALTH. That latter program promised to "comprehensively transform" its Medicaid program. Under that plan, the state would impose "community-engagement" requirements for the expansion population, along with some of the traditional population as well. This new mandate would require that those recipients work (or participate in other qualifying activities) for at least 80 hours each month as a condition of receiving health coverage. The project also called for, among other things, increased premiums and more stringent reporting requirements. Consistent with CMS's earlier invitation, the Secretary approved Kentucky's application on January 12, 2018, waiving several core Medicaid requirements in the process.

Plaintiffs in this case are fifteen Kentucky residents, each of whom is currently enrolled in the state's Medicaid program. Together, they fear that Kentucky HEALTH will relegate them to second-class status within Medicaid, putting them and others "in danger of losing" their health insurance altogether. They have thus brought this action to challenge the Secretary's approval of Kentucky HEALTH.

Although the Secretary is afforded significant deference in his approval of pilot projects like Kentucky's, his discretion does not insulate him entirely from judicial review. Such review reveals that the Secretary never adequately considered whether Kentucky HEALTH would in fact help the state furnish medical assistance to its citizens, a central objective of Medicaid. This signal omission renders his determination arbitrary and capricious. The Court, consequently, will vacate the approval of Kentucky's project and remand the matter to HHS for further review.

I. BACKGROUND

The Court begins with an overview of the statutes governing Medicaid and its experimental projects. It then turns more specifically to Kentucky's challenged plan, before concluding with a brief procedural history of the current suit.

A. Statutory Background

1. Medicaid Program

Since 1965, the federal government and the states have worked together to provide medical assistance to certain vulnerable populations under Title XIX of the Social Security Act, colloquially known as Medicaid. See 42 U.S.C. § 1396-1. The Centers for Medicare and Medicaid Services (CMS), a federal agency within the Department of Health and Human Services, has primary responsibility for overseeing Medicaid programs. Under the cooperative federal-state arrangement, participating states submit their "plans for medical assistance" to the Secretary of HHS. Id. To receive federal funding, those plans-along with any material changes to them-must be "approved by the Secretary." Id.; see also 42 C.F.R. § 430.12(c). Currently, all states have chosen to participate in the program.

Before the Secretary can approve a state plan, the Medicaid Act sets out certain minimum parameters that all states must follow. See 42 U.S.C. § 1396a (listing 83 separate requirements). One such provision requires state plans to "mak[e] medical assistance available" to certain low-income individuals. Id. § 1396a(a)(10)(A). Until recently, that group included pregnant women, children, and their families; some foster children; the elderly; and people with certain disabilities. Id. In 2010, however, Congress enacted the Affordable Care Act "to increase the number of Americans covered by health insurance." NFIB, 567 U.S. at 538, 132 S.Ct. 2566. Under that statute, states can choose to expand their Medicaid coverage to include additional low-income adults under 65 who would not otherwise qualify. See 42 U.S.C. § 1396a(a)(10)(A)(i)(VIII). It also allowed states to cover certain former foster children under the age of 26. Id. § 1396a(a)(10)(A)(i)(IX).

Generally, a state must cover all qualified individuals or forfeit its federal Medicaid funding. Id. § 1396a(a)(10)(B). Although it may choose not to cover this ACA expansion population, see NFIB, 567 U.S. at 587, 132 S.Ct. 2566, if the state decides to provide coverage, those individuals become part of its mandatory population. In that instance, the state must afford the expansion group "full benefits"-i.e. , it must provide "medical assistance for all services covered under the State plan" that are substantially equivalent "in amount, duration, or scope ... to the medical assistance available for [other] individual[s]" covered under the Act. See 42 U.S.C. § 1396d(y)(2)(B) ; 42 C.F.R. § 433.204(a)(2) ; see also Jones v. T.H., 425 U.S. 986, 96 S.Ct. 2195, 48 L.Ed.2d 811 (1976).

The Medicaid Act also ensures that enrolled individuals receive a minimum level of coverage. Under section 1396a, states must cover certain basic medical services, see 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a), and the statute limits the amount and type of premiums, deductions, or other cost-sharing charges that a state can impose on such care. Id. § 1396a(a)(14) ; see also id. § 1396o . Other provisions require states to provide up to three months of retroactive coverage once a beneficiary enrolls, see id. § 1396a(a)(34), and to ensure that recipients receive all "necessary transportation ... to and from providers." 42 C.F.R. § 431.53. Finally, states must "provide such safeguards as may be necessary to assure" that eligibility and services "will be provided, in a manner consistent with simplicity of administration and the best interests of the recipients." 42 U.S.C. § 1396a(a)(19).

2. Section 1115 of Social Security Act

Both before and after the passage of the ACA, a state wishing to deviate from the Medicaid Act's requirements must obtain a waiver from the Secretary of HHS. See 42 U.S.C. § 1315. In enacting the Social Security Act (and, later, the Medicaid program within the same title), Congress recognized that statutory requirements "often stand in the way of experimental projects designed to test out new ideas and ways of dealing with the problems of public welfare recipients." S. Rep. No. 1589, 87th Cong., 2d Sess. 19, reprinted in 1962 U.S.C.C.A.N. 1943, 1961-62. To that end, Section 1115 of the Social Security Act allows the Secretary to approve "experimental, pilot, or demonstration project[s]" in state medical plans that would otherwise fall outside Medicaid's parameters. The Secretary can approve only those projects that "in [his] judgment ... [are] likely to assist in promoting the [Act's] objectives." 42 U.S.C. § 1315(a). Once the Secretary has greenlighted such a project, he can then waive compliance with the requirements of Section 1396a"to the extent and for the period ... necessary to enable [the] State ... to carry out such project." Id. § 1315(a)(1).

While the ultimate decision whether to grant approval rests with the Secretary, his discretion is not boundless. Before HHS can act on a waiver application, the state "must provide at least a 30-day public notice[-]and[-]comment period" regarding the proposed program and hold at least two hearings at least 20 days before submitting the application. See 42 C.F.R. §§ 431.408(a)(1), (3). Once a state completes those prerequisites, it then sends an application to CMS. Id. § 431.412 (listing application requirements). After the agency notifies the state that it has received the waiver application, a federal 30-day public-notice period commences, and the agency must wait at least 45 days before rendering a final decision. Id. §§ 431.416(b), (e)(1).

B. Factual Background

1. CMS's Actions

It is no secret that the current administration hopes to "prompt[ly] repeal[ ] the Patient Protection and Affordable Care Act." Exec. Order No. 13765, Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal, 82 Fed. Reg. 8351 (Jan. 20, 2017). "In the meantime," it has promised to "take all actions consistent with law to minimize" the Act's impact, including on states. Id. To that end, the new CMS Administrator circulated a letter on March 14, 2017, alerting states of the agency's "intent to use existing Section 1115 demonstration authority" to help revamp Medicaid. See Dear Governor Letter at 2. In that letter, Defendant Verma and then-Secretary Price lamented "[t]he expansion of Medicaid through the Affordable Care Act" as "a clear departure from the core, historical mission of the program." Id. at 1. Together they promised to find "a solution that best uses taxpayer dollars to serve" those individuals they deemed "truly vulnerable." Id.

On January 11, 2018, Brian Neale, Director of CMS, issued a follow-up letter to all state Medicaid Directors, fleshing out that "new policy." See AR 90-99. The agency, he said, would "assist states in their efforts to improve Medicaid enrollee health and well-being through incentivizing work and community engagement among" certain adult mandatory Medicaid groups. Id. This was "a shift from prior agency policy." AR 92. While other welfare programs-such as Temporary Assistance for Needy Families (TANF) and Supplemental Nutritional Assistance Program (SNAP)-condition benefits on working, see 42 U.S.C. § 607 ; 7 U.S.C. § 2029(a)(1), there is no equivalent for the Medicaid program. Indeed, during the 50-plus years of Medicaid, CMS has not previously approved a community-engagement or work requirement as a condition of Medicaid eligibility. See AR 4. Instead, the agency has consistently denied these requests, finding that work requirements "could undermine access to care" and were thus inconsistent with the purposes of Medicaid. See, e.g., Letter from Andrew M. Slavitt, Acting Administrator, Ctrs. For Medicare & Medicaid Servs., HHS to Thomas Betlach, Director, Az. Health Care Cost Containment Sys. at 2-3 (Sept. 30, 2016), at https://www.azahcccs.gov/Resources/Downloads/1115Waiver/LetterToState09302016.pdf

In the 2018 State Medical Director (SMD) letter, however, the agency espoused a new commitment to "support[ing] state efforts to test incentives that make participation in work or other community engagement a requirement for continued Medicaid eligibility" and encouraged states to apply for Section 1115 waivers for this purpose. See AR 90. It then "identified a number of issues for states to consider as they develop[ed]" a community-engagement requirement for the Medicaid program. Id. at 93-98. To date, at least ten states have applied for such Medicaid waivers. See ECF No. 40 (Amicus Brief of AARP, et al. ) at 2 n.1.

2. KY HEALTH

One of those states is the Commonwealth of Kentucky. On August 24, 2016, Governor Matt Bevin submitted an application to CMS requesting a Section 1115 waiver to implement an experimental project, Helping to Engage and Achieve Long Term Health, or KY HEALTH. See AR 5432-33, 5447. He followed up with an amended (though similar) KY HEALTH application on July 3, 2017. That application had two key programs relevant here (as well as some others not challenged): (1) Kentucky HEALTH-not to be confused with the umbrella KY HEALTH-a "program" that applies only to "adult beneficiaries who do not qualify for Medicaid on the basis of a disability"; and (2) Substance Use Disorder (SUD) Treatment, which would be available for all Medicaid beneficiaries. See AR 2-3. The Court outlines each in turn.

a. Kentucky HEALTH

Kentucky HEALTH is a program primarily (though not exclusively) targeting the expansion group of adults covered under the ACA. See AR 2-3, AR 5442. The Commonwealth believed that this project would "transform" the state's Medicaid program by, among other things, predicating Medicaid eligibility for most of the expansion population on workforce participation or community service. See AR 2, 15-16.

On January 12, 2018 (just one day after issuing the SMD letter), the Secretary approved Kentucky HEALTH, granting waivers to implement the following features:

1) Community-engagement requirement, which requires beneficiaries to spend at least 80 hours per month on qualifying activities (including employment, job-skills training, education, community service, and participation in SUD treatment) or lose their Medicaid coverage;

2) Limits on retroactive eligibility, which excuse the state from "provid[ing] three months of retroactive eligibility for beneficiaries receiving coverage through the Kentucky HEALTH program; except for pregnant women and former foster care youth";

3) Monthly premiums, including premiums varied based on income and/or length of time enrolled in Medicaid;

4) Limits on non-emergency medical transportation, which "relieve Kentucky of the requirement to assure non-emergency medical transportation to and from providers for the new adult group"-i.e. , adults without disabilities, except for those who are medically frail, former foster-care youth, or pregnant;

5) Reporting requirements, which mandate that individuals provide information for an annual redetermination and report changes in income or circumstances that affect Medicaid eligibility within 10 days; and

6) Lockouts, which allow the state to deny Medicaid coverage for up to six months for any beneficiary who (a) has an income above 100% of the FPL and (b) failed to meet her premium or reporting requirements.

AR 2, 13-15.

Kentucky HEALTH also included "commercial market health insurance" features, see AR 6, such as a deductible account, an incentive and savings account called My Rewards . Id. at 6-7. The Secretary approved each of those mechanisms as part of Kentucky HEALTH and, in doing so, agreed to "fund[ ]" those programs "through the Section 1115(a)(2) expenditure authority." CMS Br. at 42. As part of that approval, the Secretary allowed Kentucky to penalize recipients who used the emergency room for "non-emergent" purposes, by deducting $75 from their new My Rewards health account (an account where Kentucky provides virtual funds for healthy behaviors). See AR 33-35, 5463.

With those programs in place, the Commonwealth expected to save roughly $331 million dollars, see AR 5513 (Estimated Fiscal Projections), primarily by reducing its Medicaid population by an estimated 95,000 persons. Compare AR 5421, with AR 5422.

b. SUD Program

In the same KY HEALTH application, Kentucky also sought approval for an SUD Program. Traditionally, Medicaid bars states from receiving any "payments with respect to care or services for any individual who has not attained 65 years of age and who is a patient in an institution for mental diseases [IMD]." 42 U.S.C. § 1396d(a)(29) ; see also 42 U.S.C. § 1396d(a)(14) and (16)(A) (separately allowing payments for individuals under age 21). An IMD is a "hospital, nursing facility, or other institution ... that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases." Id. § 1396d(i). In other words, the statute prohibits the federal government from reimbursing any treatment in mental-health facilities (at least for beneficiaries between 21 and 64).

Increasingly, this provision has posed problems for states. An estimated 21% of Medicaid-eligible adults suffer from a substance-use disorder, and Kentucky's citizens are no exception. See AR 5468. The state estimates that nearly "90,000 newly enrolled Kentuckians may have a SUD requiring treatment." Id. In 2014, the state expanded its coverage of mental health and SUD treatment options, "allowing Medicaid recipients to receive coverage for the full spectrum of inpatient and outpatient SUD services." Id. As the state put it, however, "coverage of benefits mean[s] little without access to providers." Id. Although there were 26 qualified mental-health facilities within Kentucky, none could provide care (or, at least, none could receive federal funding for such care) because of the "IMD exclusion." Id.

The Secretary recognized as much and circulated a State Medical Director letter in 2015, informing states of "a new opportunity for demonstration projects approved under section 1115 ... to ensure that a continuum of care is available to individuals with SUD." Letter No. 15-003 at 1 (July 27, 2015), https://www.medicaid.gov/federal-policy-guidance/downloads/smd15003.pdf. It encouraged states to propose "demonstration projects" under Section 1115 for treating SUDs. Id. If the Secretary approved any such project, Section 1115 would then require that the project costs (including patient-treatment costs) be "regarded as expenditures under the State [Medicaid] plan," meaning that they would be treated as reimbursable under Medicaid. See 42 U.S.C. § 1315(a)(2)(A). So long as states treated their SUD programs as part of a "demonstration" project, the federal government could thus help pick up the tab.

In 2017, the current administration confirmed its commitment to "work[ing] with states on section 1115(a) demonstrations ... to combat the ongoing opioid crisis." Letter No. 17-003 at 1 (Nov. 1, 2017), https://www.medicaid.gov/federal-policy-guidance/downloads/smd17003.pdf. In a new SMD Letter, the Secretary reaffirmed that through the "section 1115 initiative, states will have an opportunity to receive federal financial participation (FFP) for the continuum of services to treat addiction to opioids or other substances, including services provided to Medicaid enrollees residing in residential treatment facilities." Id. at 2. In total, twelve states (including Kentucky) have received approval on SUD demonstration projects. See MaryBeth Musumeci, Key Questions about Medicaid Payment for Services in "Institutions for Mental Disease", Henry J. Kaiser Family Foundation (June 18, 2018). Another thirteen have applications pending. Id.

As part of KY HEALTH, the Secretary approved an "[SUD] program available to all Kentucky Medicaid beneficiaries." AR 3. The "SUD program [allows] beneficiaries with SUD to access benefits that include SUD residential treatment, crisis stabilization and withdrawal management services provided in IMDs, which would otherwise be excluded from federal reimbursement." AR 85. Relatedly, the Secretary waived the requirement that Kentucky cover the non-emergency use of medical transportation (NEMT) "to and from methadone treatment, which requires daily dosing, for all Medicaid populations." AR 85. The plaintiffs have not challenged the SUD program (or any other component of KY HEALTH besides Kentucky HEALTH).

C. Procedural History

Before submitting its Section 1115 application to CMS, Kentucky's Department for Medicaid Services held three public hearings and conducted two public-comment periods. See AR 5509, 5410. Throughout this process, the state and CMS were engaged in "continued negotiations" regarding the program's terms. See AR 5413, 5410. CMS also opened a federal public-comment period on Kentucky HEALTH. See AR 7-8. On January 12, 2018, CMS notified the Governor's office that the application had been approved. See AR 2-9.

Two weeks later, Plaintiffs brought this nine-count suit seeking declaratory and injunctive relief on behalf of themselves and a "statewide proposed class ... of all residents of Kentucky who are enrolled in the Kentucky Medicaid program on or after January 12, 2018." Compl., ¶ 33. Most named Plaintiffs have an income below 133% of the federal poverty line; many have serious medical conditions. See ECF Nos. 33-2-17 (Declarations). Almost all either already have part-time jobs or are actively seeking work, yet each fears that she may not be able to comply with the new "community-engagement" requirement. Id. Together, they worry that such a requirement-along with Kentucky HEALTH's other measures-places them in danger of losing Medicaid completely. Id. Their Complaint alleges principally that by approving Kentucky HEALTH, Defendants violated the Constitution and the Administrative Procedure Act. See Compl., ¶¶ 339-408.

On March 30, 2018, the Court granted Kentucky's Motion for Intervention. See Minute Order. Defendants then moved to transfer, asking the Court to send the case to the Bluegrass State, specifically the Frankfort Docket of the Central Division of the Eastern District of that state. See ECF No. 6 at 2 n.2. The Court denied that request on April 10, 2018, finding that this case was of "national, rather than local, significance" and would be properly adjudicated within the District of Columbia. See Stewart v. Azar, 2018 WL 1730304, at *6 (D.D.C. Apr. 10, 2018). In the meantime, the parties have filed competing Motions for Summary Judgment. The Court heard oral argument on June 15, 2018, and because Kentucky HEALTH will take effect on July 1, 2018, has issued this Opinion on an expedited basis.

II. LEGAL STANDARD

The parties have cross-moved for summary judgment on the administrative record. The summary-judgment standard set forth in Federal Rule of Civil Procedure 56(c), therefore, "does not apply because of the limited role of a court in reviewing the administrative record." Sierra Club v. Mainella, 459 F.Supp.2d 76, 89 (D.D.C. 2006) ; see also Bloch v. Powell, 227 F.Supp.2d 25, 30 (D.D.C. 2002), aff'd, 348 F.3d 1060 (D.C. Cir. 2003). "[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club, 459 F.Supp.2d at 90 (quotation marks and citation omitted). "Summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the [Administrative Procedure Act] standard of review." Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F.Supp.2d 42, 52 (D.D.C. 2010) (citation omitted), aff'd, 408 Fed. App'x 383 (D.C. Cir. 2010).

The Administrative Procedure Act "sets forth the full extent of judicial authority to review executive agency action for procedural correctness." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). It requires courts to "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2). Agency action is arbitrary and capricious if, for example, the agency "entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

In other words, an agency is required to "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. at 43, 103 S.Ct. 2856 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ) (internal quotation marks omitted). Courts, accordingly, "do not defer to the agency's conclusory or unsupported suppositions," United Techs. Corp. v. Dep't of Def., 601 F.3d 557, 562 (D.C. Cir. 2010) (quoting McDonnell Douglas Corp. v. Dep't of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004) ), and "agency 'litigating positions' are not entitled to deference when they are merely [agency] counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court." Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (citation omitted). Although a reviewing court "may not supply a reasoned basis for the agency's action that the agency itself has not given," a decision that is not fully explained may, nevertheless, be upheld "if the agency's path may reasonably be discerned."

Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) (citation omitted).

III. ANALYSIS

In this case, Plaintiffs accuse HHS of "tak[ing] by regulatory fiat what it could not accomplish in Congress." Pl. MSJ at 3. The Secretary and Kentucky, they say, sought to do little more than "knock people off Medicaid and undermine the Medicaid expansion enacted by Congress." Id. at 17. With that view in mind, their nine-count Complaint-which relies almost exclusively on the APA-challenges nearly every component of Kentucky HEALTH.

First, they attack the project as a whole, claiming the Secretary erred by finding that it was likely to promote the objectives of Medicaid. See Compl, Count VIII. Second, in Counts II-VII, they challenge each individual component of that program-i.e. , the community-engagement requirement, the premiums, the reporting requirements, the lockouts, the limits on NEMT and retroactive eligibility, and the penalties for non-emergency use of the emergency room. For the latter counts, Plaintiffs principally maintain that each of those features is unlikely to promote the Act's objectives. In Counts III and IV, Plaintiffs further allege that the Secretary could not permit certain premium or cost sharing (such as penalties on non-emergency use of the emergency room) through his Section 1115 authority. Beyond that, Plaintiffs challenge the Secretary's issuance of the SMD Letter (Count I), as well as allege violations under the Take Care Clause (Count IX).

For reasons discussed in more detail below, the Court need adjudicate only one count of Plaintiffs' Complaint to grant them full relief: Count VIII, which challenges the Secretary's approval of Kentucky HEALTH as a whole. Before the Court can reach that dispute, however, it must first address several threshold issues.

A. Threshold Issues

Whether his approval was lawful or not, the Secretary argues that this Court has no power to review it either because (1) Plaintiffs cannot establish standing for their challenge, or (2) the decision is "committed to agency discretion by law," 5 U.S.C. § 701(a)(2), thus barring any judicial oversight under the APA.

1. Standing

Article III of the Constitution limits the jurisdiction of federal courts to actual "Cases" and "Controversies." U.S. Const., art. III, § 2. But not just any dispute will do. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A plaintiff must demonstrate that she suffers: 1) an injury-in-fact that is 2) caused by the conduct complained of and 3) "likely" to be "redressed by a favorable decision." Id. at 560-61, 112 S.Ct. 2130 (quotations omitted). Because it considers only Count VIII, the Court limits its standing analysis to that claim.

a. Injury/Causation

In a suit for injunctive relief, "past harm is not sufficient to establish an injury in fact." Nat'l Whistleblower Ctr. v. HHS, 839 F.Supp.2d 40, 45-46 (D.D.C. 2012). The plaintiff, rather, must show "a real and immediate-as opposed to merely conjectural or hypothetical-threat of future injury." Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 1022 (D.C. Cir. 1998) (citation omitted). "[I]n assessing plaintiffs' standing, [the Court] must assume they will prevail on the merits of their ... claims." LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011).

Here, Plaintiffs cite a litany of injuries stemming from the Secretary's approval of Kentucky HEALTH. Without that approval, Kentucky could not enact any feature of the program that required waivers of Section 1396a, such as (1) conditioning coverage on a community-engagement requirement; (2) increasing premiums, (3) limiting retroactivity eligibility, (4) limiting NEMT, (5) issuing reporting requirements; and (6) imposing lockouts. See AR 2-3. As part of his approval, the Secretary also authorized all waivers and expenditures needed from the "My Rewards Account incentives," including deductions for non-emergency use of emergency rooms. Id., AR 34 (allowing penalties "for each non-emergent visit to the emergency department").

Considering all of its aspects, Plaintiffs say Kentucky HEALTH might strip them of Medicaid coverage altogether. Generally, "an eligible recipient ... ha[s] a concrete interest in Medicaid benefits." Banks v. Sec'y of Indiana Family & Soc. Servs. Admin., 997 F.2d 231, 238 (7th Cir. 1993). The D.C. Circuit had "no doubt," for example, that agency actions that "threaten[ed] an individual's ability to obtain Medicaid coverage ... satisf[ied] the injury element of constitutional standing." NB ex rel. Peacock v. Dist. of Columbia, 682 F.3d 77, 83 (D.C. Cir. 2012). The Secretary, however, claims such protestations are premature. Although Kentucky estimates 95,000 people will lose coverage, he says none of the Plaintiffs here has shown such a likelihood. ECF No. 71 (Oral Argument Transcript) at 40:18-41:11.

The Court need not resolve this dispute because, even were Plaintiffs to keep their Medicaid coverage, Kentucky HEALTH will increase their monthly premium payments. Ordinarily, states can charge their Medicaid beneficiaries only "nominal" premiums. See 42 U.S.C. § 1396o . Effective July 1, 2018, however, Kentucky would require enrollees to pay monthly premiums of up to 5% of household income (with punishment for non-payment, including termination of coverage and a six-month lockout penalty). See AR 87. This sort of financial loss falls in the heartland of Article III standing. See Carpenters Indus. Cncl v. Zinke, 854 F.3d 1, 5-6 (D.C. Cir. 2017) ("Economic harm ... clearly constitutes an injury-in-fact."). For such economic harm, "amount is irrelevant." Id."A dollar of economic harm is still an injury-in-fact for standing purposes." Id.; see also Czyzewski v. Jevic Holding Corp., --- U.S. ----, 137 S.Ct. 973, 983, 197 L.Ed.2d 398 (2017) ("For standing purposes, a loss of even a small amount of money is ordinarily an 'injury.' ").

The Secretary does not dispute that any Plaintiffs subject to higher premiums would suffer a cognizable injury. Instead, he suggests that each named Plaintiff might be exempt from this requirement. Kentucky HEALTH, however, excepts only the following groups from premium payments: (1) former foster-care youth; (2) pregnant women; and (3) medically frail individuals. Although Kentucky has not yet defined medically frail, several Plaintiffs aver that they are "healthy and do not have any ongoing medical problems." See, e.g., ECF Nos. 33-13 (Affidavit of Katelyn Allen), ¶ 6; 33-15 (Affidavit of David Roode), ¶ 6; 33-17 (Affidavit of Quenton Radford), ¶ 8. CMS concedes that David Roode is "substantially likely not to be found exempt on the basis of medical frailty," CMS Br. at 30, and Kentucky has also submitted a supplemental declaration noting that Plaintiff Glassie Kasey, among others, had not been identified as "medically frail by an MCO." ECF No. 69 (Notice).

CMS suggests that these Plaintiffs might nevertheless meet one of the other two exemptions, see CMS Br. at 30, but the Court cannot agree. Quite obviously, Roode, a 39-year-old man, is not a pregnant woman. Medical advances notwithstanding, Kasey, a 56-year-old woman, is also unlikely to meet that criterion. See ECF No. 33-3 (Affidavit of Glassie Kasey), ¶ 2. Plaintiffs also represent in their briefing that they will not "be exempted as former foster care youth." Reply at 5. Although they could have made this point more clearly in their affidavits, the Court sees no reason to think they might fall within that exemption (and the odds would certainly suggest otherwise). The Court therefore finds it likely that at least those two Plaintiffs would be required to pay increased premiums and thus would suffer a concrete injury from Kentucky HEALTH. This is all that is needed to challenge the program. See Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 429 (D.C. Cir. 1998) (holding that in a suit brought by multiple plaintiffs, only a single plaintiff must possess standing for a case to proceed).

b. Redressability

Having established an injury, Plaintiffs must also show "a likelihood that the requested relief will redress the alleged [harm]." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (emphasis added). Generally, courts will find "standing exists where the challenged government action authorized conduct that would otherwise have been illegal." Renal Physicians Ass'n v. HHS, 489 F.3d 1267, 1275 (D.C. Cir. 2007). "In such cases, if the authorization is removed, the conduct will become illegal and therefore very likely cease." Id.

Here, the challenged government conduct-viz. , the Secretary's approval-provided the necessary authorization for Kentucky HEALTH. Because that program would otherwise run afoul of Section 1396a's coverage requirements, the state needs the Secretary's approval and waiver authority before it can enact it. See 42 U.S.C. § 1315 ; see also 42 C.F.R. § 430.12(c). Should this Court decide that CMS unlawfully approved Kentucky HEALTH, the program (including each component challenged by Plaintiffs) therefore could not take effect. In that event, Plaintiffs' Medicaid coverage would, at least temporarily, remain undisturbed. That is all they need for redressability purposes. See Renal Physicians, 489 F.3d at 1275 (holding "[c]ausation and redressability ... are satisfied in this category of cases, because the intervening choices of third parties"-i.e. , Kentucky-"are not truly independent of government policy") (internal quotation marks omitted).

Kentucky tries to muddy the waters, arguing that Plaintiffs cannot satisfy the redressability prong because "if [they] prevail in this action, the Commonwealth will not continue participating in expanded Medicaid." KY MSJ at 4. While the Governor has indeed issued an Executive Order directing the Commonwealth to "unexpand" Medicaid if any aspect of Kentucky HEALTH is invalidated, see ECF 25-1, that Order has no bearing on the standing analysis here. The Executive Order calls for the Commonwealth's Medicaid agency "to take the necessary actions to terminate Kentucky's Medicaid expansion program" only after a final court judgment. Id. at 3. The EO thus cannot take effect before this Court's decision. Even if Kentucky were able to "unexpand" Medicaid (far from a foregone conclusion), Plaintiffs would have, at minimum, momentary relief.

Generally, "those adversely affected by a discretionary agency decision ... have standing to complain that the agency based its decision upon an improper legal ground."

FEC v. Akins, 524 U.S. 11, 25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). A court "can 'redress' [a plaintiff's] 'injury in fact' " in such cases "even though the agency"-or, in this case, a third party-"might later ... reach the same result for a different reason." Id. In other words, it matters little whether Kentucky might later moot the Court's decision; the important point is that, as the record stands today, the Court can grant meaningful relief.

While not necessary to its decision, the Court also notes that relief here would likely be more than fleeting. Even if Kentucky decides to discontinue benefits pursuant to the EO, the state will not do so until "all appeals of the judgment have been exhausted or waived." ECF No. 25-1 at 3. That is not typically a lightning process. After the litigation resolves, furthermore, the state would still need to submit any amendments to CMS. See 42 C.F.R. § 430.12(c) ; see also Tr. at 52:18-19. The Secretary will then need to decide "whether the plan continues to meet the requirements for approval." Id. § 430.12(c)(2)(i). That approval, in turn, would once again be subject to judicial review. And in the interim, Plaintiffs would retain their full Medicaid benefits without paying higher premiums. That is more than enough for standing purposes.

c. Standing for the Relief Sought

Finally, the Secretary argues that even if Plaintiffs' have standing to challenge the premiums, "they could not leverage that standing to challenge the project as a whole, or the other components of KY HEALTH that do not injure them (like the community-engagement initiative)." CMS Reply at 5 n.2. In other words, "[i]f a plaintiff is only injured by one component of that act," he posits, "that's the only component that the plaintiff has standing to challenge." Tr. at 33:10-12.

It is true that "a plaintiff must demonstrate standing separately for each form of relief sought," Friends of the Earth, Inc. v. Laidlaw Environ. Servs., Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), and "for each claim he seeks to press." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). The Supreme Court has held, for instance, that a plaintiff must have standing to pursue both damages and injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). The relevant "claim" pressed here, however, is Count VIII. The "relief sought" in that count is not invalidation of particular elements of Kentucky HEALTH; rather, Plaintiffs seek vacatur of the Secretary's approval of the entire program.

That relief is tethered to the claim. Unlike individual sections of a statute, see, e.g., Davis v. FEC, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008), or provisions in a regulation, see, e.g., Lewis v. Casey, 518 U.S. 343, 357-58 & n.6, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), the Court cannot parse the Secretary's approval of a program. See, e.g., Nat. Res. Def. Cncl., Inc. v. Dep't of Navy, 2002 WL 32095131, at *8 (C.D. Cal. Sept. 17, 2002) ; Vt. Pub. Interest Research Grp. v. U.S. Fish & Wildlife Serv., 247 F.Supp.2d 495, 513-14 (D. Vt. 2002) (holding plaintiffs may challenge NEPA analysis and implementation of program as whole even though they only established injury as to one area). As CMS itself maintains, it considered Kentucky HEALTH as a whole before deciding whether to approve it, rather than analyzing separately each challenged component. See CMS Br. at 26. The Court, accordingly, examines the approval of the project as a whole as well. See State Farm, 463 U.S. at 50, 103 S.Ct. 2856, ("[A]n agency's action must be upheld, if at all, on the basis articulated by the agency itself.").

Were the Secretary arbitrary and capricious in approving Kentucky HEALTH, the Court would strike down that approval in toto .

It therefore need ask only whether Plaintiffs "have an interest in some portion" of the benefits affected by that program. See Nat. Res. Def. Cncl., Inc., 2002 WL 32095131, at *8. The premiums are the most concrete interest here (though by no means the only one). For the reasons explained above, vacating Kentucky HEALTH would sufficiently redress that injury, and Plaintiffs therefore have standing for Count VIII.

2. Justiciability

The Secretary next maintains that even if Plaintiffs have standing, this Court has no power to review his authority under Section 1115. Rather, he says, his actions are "committed to agency discretion by law" and are thus barred from review under Section 701(a)(2) of the APA. See CMS Br. at 11.

The APA embodies a "basic presumption of judicial review." Lincoln v. Vigil, 508 U.S. 182, 190, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ), and the exception under Section 701(a)(2) is "a very narrow" one. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Absent an express statutory bar, courts may review agency action except "in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply," Webster v. Doe, 486 U.S. 592, 599, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (internal quotation marks omitted), and "a court would have no meaningful standard against which to judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).

Here, Section 1115 provides, inter alia :

(a) In the case of any experimental, pilot, or demonstration project which, in the judgment of the Secretary, is likely to assist in promoting the objectives of [the Medicaid statute,]

(1) the Secretary may waive compliance with any of the requirements of section ... 1396a of this title, as the case may be, to the extent and for the period he finds necessary to enable such State or States to carry out such project, and

(2) (A) costs of such project ... shall, to the extent and for the period prescribed by the Secretary be regarded as expenditures under the State plan or plans.

42 U.S.C. § 1315(a)(1)-(2)(A). In other words, the Secretary must adopt a two-fold inquiry, asking (1) whether he can approve the project pursuant to Section 1115(a); and then (2) what waivers or expenditures are necessary for that project pursuant to Sections 1115(a)(1) and (a)(2). The Court will evaluate the justiciability of each step in turn.

a. Section 1115(a)

In this case, Count VIII challenges the Secretary's approval of Kentucky HEALTH under Section 1115. The statute required that the Secretary examine two criteria before doing so: First, whether the project is an "experimental, pilot or demonstration project"; and second, whether the project is "likely to assist in promoting the objectives" of the Act. Id.; see also Newton-Nations v. Betlach, 660 F.3d 370, 379-80 (9th Cir. 2011) (noting that court could review whether "Secretary [made] some judgment that the project has a research or a demonstration value") (citation omitted).

The Court can readily apply both standards, which are a far cry from those traditionally deemed unreviewable. In Webster, for instance, the Supreme Court considered a statute allowing the CIA Director to terminate "an Agency employee whenever [she] 'shall deem such termination necessary or advisable in the interest of the United States.' " 486 U.S. at 600, 108 S.Ct. 2047 (citation and emphasis omitted). Looking to both the statute's discretionary language and its overall structure, the Court found no real "law to apply." Id. The CIA Director's personnel decisions affected national security, and the Court reasoned that it was for the executive branch, rather than the courts, to determine what was "in the interest of the United States." Id.

The Supreme Court later stressed that Webster dealt with "an area of executive action 'in which courts have long been hesitant to intrude.' " Lincoln, 508 U.S. at 192, 113 S.Ct. 2024 (quoting Franklin v. Massachusetts, 505 U.S. 788, 819, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (Stevens, J., concurring) ). The D.C. Circuit, too, has interpreted that decision narrowly. See Dickson v. Sec'y of Def., 68 F.3d 1396, 1403 (D.C. Cir. 1995). In Dickson, for example, the Circuit held reviewable the Army Board for Correction of Military Records' authority to waive certain statutory requirements "it found [to be] in the interest of justice"-a standard far closer to Webster than that at issue here. Id. at 1403. The Court of Appeals there found "no sufficient reason why the determination, on a case-by-case basis, of what is 'in the interest of justice' " should "lie[ ] within the exclusive expertise of the Board," rather than the courts. Id. Likewise, in Marshall Cty. Health Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993), the D.C. Circuit held it could review the Secretary's decision to modify regulations under the Medicare Act, even though the statute allowed him to do so "as [he] deem[ed] appropriate." Id. at 1223 (quoting 42 U.S.C. § 1395ww(d)(5)(C)(iii) ). Distinguishing Webster, it reasoned that "the Medicare statute" does not typically include the same degree of "congressional deference to the executive." Id. at 1224.

The same is naturally true of the Medicaid statute. That Act "contains numerous, detailed, specific requirements with which states must comply in order to receive federal funding." Beno v. Shalala, 30 F.3d 1057, 1068 (9th Cir. 1994). The Secretary is responsible for ensuring that state programs comply with these regulations and must "take certain specific steps, culminating with the loss of funding, when state plans fail to comply." Id.; see also 42 C.F.R. § 430.35. While Section 1115 allows the Secretary to relax those minimum requirements in some circumstances, the Court "doubt[s] that Congress would enact such comprehensive regulations, frame them in mandatory language, require the Secretary to enforce them, and then enact a statute allowing states to evade these requirements with little or no federal agency review." Beno, 30 F.3d at 1068-69.

Were it otherwise, the Secretary could singlehandedly rewrite the Medicaid Act. Imagine, for instance, that he approved a demonstration project targeting the blind. He could then waive Section 1396a's requirement that a state (or all states) cover blind people. The Secretary promised at oral argument that he would not do so, see Tr. at 31:5-13, but what's to stop him? The statute's caveat that any such project must be "likely to assist in promoting" the statute's objectives. See 42 U.S.C. § 1315(a). Congress thereby limited the Secretary's authority and, in doing so, assured that the judicial branch would police the statute's boundaries. See Bowen v. Mich. Acad. of Family Phys., 476 U.S. 667, 681, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986) ("We ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a command.").

Indeed, "[e]very court which has considered the issue has concluded that" the Secretary's Section 1115 authority is "subject to APA review." Beno, 30 F.3d at 1067 & n.24 (collecting cases); see also C.K. v. N.J. Dep't of Health and Human Servs., 92 F.3d 171, 181-82 (3d Cir. 1996) (reviewing Secretary's approval pursuant to Section 1115); Aguayo v. Richardson, 473 F.2d 1090, 1105 (2d Cir. 1973) (same); Crane v. Mathews, 417 F.Supp. 532, 539 (N.D. Ga. 1976). Some of those courts have upheld the Secretary's judgment, see, e.g., C.K., 92 F.3d at 181-89, Aguayo, 473 F.2d at 1106, while others have struck down his approval. See, e.g., Beno, 30 F.3d at 1076 ; Newton-Nations, 660 F.3d at 381-82. None of those courts, however, struggled to find some "law to apply."

The Secretary resists this consensus, stressing that the statute turns on "[his] judgment" as to whether a project is likely to further the Act's objectives. See 42 U.S.C. § 1315(a). To be sure, he "has considerable discretion to decide which projects meet these criteria." Beno, 30 F.3d at 1069. And, as discussed below, the Court will afford him considerable deference on his "judgment" that these waivers fit the bill. "[T]he mere fact that a statute contains discretionary language," however, "does not make agency action unreviewable." Id. at 1066. Rather, as noted above, the D.C. Circuit has consistently found justiciable statutes with "broad delegation[s] of discretion." Marshall Cty., 988 F.2d at 1224 ; see also Dickson, 68 F.3d at 1402-03 (rejecting such a position as a mere "linguistic argument"). Ultimately, the Court may properly review an agency action as long as there is some "law to apply." There is more than enough here.

b. Sections 1115(a)(1) and (2)(A)

Once the Secretary has approved a demonstration protect, he must then consider "the extent and ... period" of waivers "necessary" to carry it out. See 42 U.S.C. § 1315(a)(1). He may also treat any associated costs as "expenditures" (and thus reimbursable by the federal Government) to the extent and for the period he deems appropriate. Id. § 1315(a)(2)(A).

The Secretary suggests that these provisions lack "any meaningful judicial standard of review." CMS Br. at 11 (quoting Webster, 486 U.S. at 600, 108 S.Ct. 2047 ). In this case, however, the Court has no occasion to substantively review the Secretary's individual waivers and or expenditures, so it need not linger of the justiciability of sections 1115(a)(1) or (2)(A). It suffices to note that it can at least review whether the Secretary made a finding that any given waiver was necessary "to carry out [a demonstration] project." 42 U.S.C. § 1315(a)(1). The Act requires him to at least check that box, even were the Court to hold that the underlying finding of necessity was unreviewable. It could also review whether, as Plaintiffs have alleged in Count III, the Secretary has purported to waive requirements beyond the 83 outlined in section 1396a. Id. (limiting the Secretary to "waiv[ing] compliance with any of the requirements of section ... 1396a of this title") (emphasis added). Regardless of whether those provisions are otherwise justiciable, they have no bearing on the Secretary's approval of Kentucky HEALTH in the first place and thus are not relevant to Count VIII. The Court proceeds to that count now.

B. Merits

Appetizers now dispatched, the Court may cut into the main course. Plaintiffs' central position here is plain: Kentucky HEALTH would "fundamentally" and impermissibly "transform Medicaid." Pl. MSJ at 3. They thus attack nearly every component of the program. At bottom, however, most of their challenges boil down to a simple argument: the program is "not likely to assist in promoting" Medicaid's objectives." See 42 U.S.C. § 1315(a).

The parties debate the appropriate standard of review: Defendants deny review is even possible, see Section III.A.2, supra , while Plaintiffs maintain that the Secretary acted outside his statutory authority and should thus receive no deference on that question. At minimum, however, both sides agree that the Secretary's approval (if reviewable) must not be "arbitrary, capricious ..., or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The Court, like others before it, will thus view the Secretary's approval through that lens. See, e.g., Beno, 30 F.3d at 1067-68 ; see also C.K., 92 F.3d at 183-84 ; Aguayo, 473 F.2d at 1105-07. Before doing so, however, it pauses to outline the scope of the challenge before it.

1. Scope

The Secretary maintains that he must ask only whether a project, considered as a whole, is "likely to assist in promoting the objectives of" the Medicaid Act. See 42 U.S.C. § 1315(a). Plaintiffs, meanwhile, lob multiple challenges at individual components of that project (such as the community-engagement requirement or the increased premiums). To the extent Plaintiffs mean to argue that none of those features is independently likely to further the Act's objectives, such focus would be misplaced. As they now seem to concede, see Reply Br. at 24, Section 1115(a) asks whether a "project" would promote the Act's objectives, not whether each component, "viewed in isolation," would. See Wood v. Betlach, 922 F.Supp.2d 836, 843 (D. Ariz. 2013) (emphasis). While it may be relevant to the Secretary's determination whether any given component is consistent with the Act's objectives, he must ultimately determine whether, on balance, the project as a whole passes muster.

The Court thus limits its analysis to Count VIII, which alleges that the Kentucky HEALTH program, "as a whole," was neither "an experimental, pilot or demonstration project[ ] nor ... likely to promote the objectives of the Medicaid Act." Compl. at Count VIII & ¶ 388 (emphasis added and capitalization altered). Defendants concede that such a challenge (if reviewable) is proper, but mistakenly construe Count VIII as a challenge to KY HEALTH writ large . See CMS Br. at 17-18. During oral argument, however, Plaintiffs made clear that they target only the Secretary's approval of Kentucky HEALTH, leaving aside any challenge to other components of KY HEALTH, such as the SUD program. See Tr. at 57:18-21 ("I just want to be clear [that] [w]hat we have ... challenged is something called Kentucky HEALTH, spelled out.").

This distinction does not affect the Court's arbitrary-and-capricious review, as it would hold the Secretary's approval of either KY HEALTH or Kentucky HEALTH fell short of that standard. See Section III.B.2, infra . The difference matters enormously, however, for the appropriate remedy. Were the Court to treat this as a challenge to KY HEALTH, a decision in Plaintiffs' favor would invalidate not only Kentucky HEALTH but also Kentucky's recently implemented SUD

program. None of the parties has an appetite for such a result. See Tr. at 45:7-16 (CMS); id. at 54:8-16 (Kentucky); id. at 58:9-17 (Plaintiffs). Fortunately for all, the Court can properly limit its review to Kentucky HEALTH.

Although packaged inside the same application, Kentucky HEALTH was wholly distinct from other pieces of KY HEALTH, including, inter alia , the SUD program. As a refresher, the latter is available for all Medicaid beneficiaries, while the former applies only to adults without disabilities. See AR 2-3. The programs also have different start dates: SUD treatment became effective January 12, 2018, but Kentucky HEALTH does not take effect until July 1, 2018. See AR 2. And, of course, they have different purposes: one was meant to "ensure that a broad continuum of care" was available to those with substance-abuse disorders. See AR 83. The other proposes to add "commercial market health insurance" features to Medicaid. See AR 7.

It comes as no surprise, then, that the Secretary has solicited and regularly approved stand-alone SUD demonstrations in other states, without packaging in elements similar to Kentucky HEALTH. See, e.g., Letter from Seema Verma, Adm'r, CMS, to Jen Steele, Medicaid Dir., La. Dep't of Health & Hospitals (Feb 1, 2018), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By Topics/Waivers/1115/downloads/la/la-healthy-oud-sud-demo-ca.pdf; Letter from Seema Verma to Cynthia Beane, Comm'r, W. Va. Bureau for Med. Servs. (Oct. 6, 2017), https://www.medicaid.gov/medicaid-chip-program-information/bytopics/waivers/1115/downloads/wv/wv-creating-continuum-care-medicaid-enrollees-substance-ca.pdf.

Here, too, the Secretary effectively treated the SUD program and Kentucky HEALTH as two separate demonstration projects. Although he nominally referred to the latter as a program within the KY HEALTH demonstration, that label did not control. Instead, he evaluated independently whether Kentucky HEALTH would promote various objectives of the Act, including by "improv[ing] health outcomes, promot[ing] increased upward mobility and improved quality of life, increas[ing] individual engagement in health care decisions, and prepar[ing] individuals who transition to commercial health insurance coverage to be successful in this transition." AR 7. He then separately stated (1) which waivers were necessary "for the Kentucky HEALTH program" and (2) which were necessary for "the KY HEALTH demonstration as a whole." AR 3; see also AR 13-15. Similarly, he distinguished between the "expenditure authorities" needed to "implement the Kentucky HEALTH program" and those necessary "to implement the KY HEALTH section 1115 demonstration." AR 11.

This makes sense. When the Secretary concluded that the SUD program "was likely to promote the objectives" of the Act, he could not then piggyback other unrelated waivers onto that approval. Why not? Because he can issue only those waivers "necessary" to support the project. See 42 U.S.C. § 1315(a)(1). In this case, the Secretary determined that hardly any waivers were needed to make the SUD program run. Simply by approving the SUD project, he ensured that all SUD costs were treated as reimbursable under Medicaid. Id. § 1315(a)(2)(A). He then identified only one waiver needed to implement the program: he waived Section 1396a(a)(4) to "the extent necessary to relieve Kentucky of the requirements to assure nonemergency medical transportation to and from providers for all Medicaid beneficiaries" when such transportation was "for methadone treatment services." AR 85.

At the same time, the Secretary never considered whether (nor explained why) any of the Kentucky HEALTH components-including (1) retroactive eligibility, (2) premiums, (3) the community-engagement requirement, (4) lockouts, (5) reporting requirements, and (6) NEMT-were "necessary" to carry out the SUD program (or any other component of KY HEALTH as a whole). See AR 3 (distinguishing "additional waiver[s] and expenditure[s]" that were necessary for "the KY HEALTH demonstration as a whole"). He did not, for instance, conclude that those waivers provided necessary cost savings to make SUD practicable.

Instead, the Secretary identified each component as an "additional waiver[ ] [or] expenditure[ ]" that was necessary for the Kentucky HEALTH program. See AR 14-15; see also AR 2-3. That program, then, was the relevant "experimental, pilot, or demonstration project." 42 U.S.C. § 1315(a). And it is thus that project "which, in the judgment of the Secretary," needed to be "likely to assist in promoting the objectives of [the Medicaid statute]." Id. Otherwise, none of those waivers would be "necessary ... to carry out such [a] project." Id. § 1315(a)(1). This Court will thus treat, as the Secretary did, Kentucky HEALTH as a standalone demonstration project.

2. Arbitrary & Capricious Review

The scope of the challenge defined, the Court finally arrives at the crux of the parties' argument: whether the Secretary acted arbitrarily or capriciously in concluding that Kentucky HEALTH was "likely to assist in promoting the objectives" of the Medicaid Act. See 42 U.S.C. § 1315(a).

Under that deferential standard, the Court "is not empowered to substitute its judgment for that of the agency." Overton Park, 401 U.S. at 416, 91 S.Ct. 814. Nor can it "presume even to comment upon the wisdom of [Kentucky's] effort at Medicaid reform." C.K., 92 F.3d at 181. Still, it is a fundamental principle of administrative law that "agencies are required to engage in rea