On Tuesday, February 22, 2021, the Biden Administration moved to vacate the March Supreme Court hearing to consider whether or not the Trump Administration’s approval of work requirements through Medicaid waivers is legal. The Biden Administration is working to repeal the approval of those work waivers in a dozen states.


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. Those two states are the subject of the Supreme Court case. HHS asked the waiver states to submit any additional information that would warrant not withdrawing approval for work requirements within 30 days.


Arkansas was the first state with approval for such a requirement, but they were blocked in March 2019 after a court challenge. One question is whether CMS can use the waiver authority to set up such a new requirement not otherwise allowed under Medicaid. Initial information from the Arkansas waiver indicated that people were cut off Medicaid as a result of the requirement.


The Justice Department filing before the Supreme Court stated that Arkansas was the only state to begin disenrolling beneficiaries for failing to satisfy its work-related requirements. The Department argues that the COVID-19 pandemic has made implementing such requirements infeasible and that implementation of the requirements is prevented by last March’s COVID relief that provides an increase in the Medicaid matching rates on states maintaining certain existing Medicaid coverage.


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 Administration further explained that it “has serious concerns about testing policies that create a risk of a substantial loss of health care coverage in the near term” in light of the COVID-19 pandemic and its adverse effects on Medicaid beneficiaries’ health, economic opportunities, and access to transportation and affordable child care.


In asking for the withdrawal of the Supreme Court hearing, the Administration brief stated, “the government respectfully submits that these cases no longer present a suitable context for the Court to address the question presented concerning the scope of the Secretary’s authority to approve the Arkansas and New Hampshire demonstration projects.”