It Is Highly Likely That The Efforts In Arkansas To Require Work, For In-State Medicaid Eligibility… Are DOA.
February 24, 2021

In the fairly early days of Old Tangerine, GOP controlled states in 2018 had been encouraged to experiment with work-seeking documentation (as a plainly new red-tape requirement), in order for people to qualify for in-state Medicaid, and at least Arkansas had actually begun to do so. Then four separate federal courts ruled that the Executive had exceeded his authority in trying to create work requirements — as a “toss out” from Medicaid eligibility.

The matter was on appeal to the Supremes, when Baby T lost office. The Biden Administration has sent word to the Supremes that it is repealing the demonstration project, and it is highly unlikely to defend the Arkansas scheme at the high court. In all likelihood, this will end the cruel and non-sensical idea that someone sick enough to need Medicaid, and poor enough not to be able to find private insurance, probably cannot go out looking for paid labor, as a day laborer for example, in order to get Medicaid in Arkansas. But that was Tangerine’s big idea. Take away the safety net, always. Here’s a bit of the latest Biden paperwork, saying there’s a new, and more humane view now prevailing — inside the White House, as well as outside of it:

. . .The Arkansas and New Hampshire demonstration projects are among more than a dozen projects including work-related requirements that either have been approved by or are pending before HHS. Gov’t Br. 15 & n.6. However, none of those projects’ work-related requirements is currently operative. Arkansas was the only State to begin disenrolling beneficiaries for failing to satisfy its work-related requirements, and that implementation was halted in March 2019 following the district court’s decision in Gresham. Pet. App. 6a. Since then, the COVID-19 pandemic has made implementing such requirements infeasible. In addition, implementation of such requirements is effectively precluded by legislation enacted in March 2020 that conditions a State’s receipt of an increase in federal Medicaid funding during the pandemic on its maintaining certain existing Medicaid parameters. Families First Coronavirus Response Act. Pub. L. No. 116-127, Div. F, § 6008(a) and (b), 134 Stat. 208; 42 C.F.R. 433.400(c)(2). This Office is informed by HHS that every State has accepted that increased funding and thus currently cannot implement work-related requirements like those in Arkansas and New Hampshire. . . .

On February 12, 2021, HHS sent letters to Arkansas, New Hampshire, and other States with previously approved demonstration projects that include work-related requirements informing them that HHS has begun a process of determining whether to withdraw approval of those requirements.

HHS explained that it “has the authority and responsibility to maintain continued oversight of demonstration projects in order to ensure that they are currently likely to assist in promoting the objectives of Medicaid” and that HHS may withdraw approval of a project that it finds “‘is not likely to achieve the statutory purposes. . . .’

The government respectfully submits that the appropriate course for the Court in such greatly changed circumstances is to vacate the judgments of the court of appeals and remand. Cf., e.g., Madison Cnty. v. Oneida Indian Nation of New York, 562 U.S. 42, 43 (2011) (per curiam) (vacating and remanding in light of “new factual development”); Department of Justice v. City of Chicago, 537 U.S. 1229 (2003) (intervening statute).

The cases should be remanded with instructions that the underlying matters be remanded to the Secretary, so that the agency may complete the review process it has commenced and determine the appropriate path forward in the first instance, exercising the “judgment” Congress expressly vested in the agency with respect to demonstration projects. 42 U.S.C. 1315(a). . . .

Of course, all of this is a welcome development for ethical (but still profit seeking) life science companies, ones that need to be at least minimally reimbursed in order to deliver often life saving treatments to Americans of very limited means. This will make sure that avenue remains open. Onward, as this will be good news for rational, orderly health care delivery in the newly reawakened US health care reform landscape.

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