In recent weeks, the Biden administration has begun the process of rescinding Trump-era waiver programs authorizing Medicaid work requirements. Experts say that the new administration has a strong legal position in doing so, and that the moves are part of a larger strategy to bolster Medicai
On Feb. 12, CMS sent letters to states that received Section 1115 waivers under the Trump administration that allowed them to require certain Medicaid beneficiaries to prove they are employed, looking for work or volunteering. The letters noted that "CMS may withdraw waivers or expenditure authorities if it 'find[s] that [a] demonstration project is not likely to achieve the statutory purposes,'" citing federal Medicaid law.
According to the Kaiser Family Foundation, eight states have had work requirements approved by the agency, seven had applications pending with CMS and four more have their work requirement policies under legal review. Also, the Supreme Court elected in December to review decisions by an appeals court that blocked Arkansas' and New Hampshire's work requirement waivers.
David Kaufman, a partner at Laurus Law Group LLC, says that federal judges have so far taken the same dim view of work requirements' legality as Biden's CMS.
"The courts didn't feel like [CMS under Trump] considered that the primary purpose of Medicaid is to provide health care coverage," Kaufman says. "So how is a program that demonstrably decreases health care coverage consistent with the program's purpose?"
Still, "at least four justices feel that [the appeals court's decision] is something that they want to review, and now we have a more conservative Supreme Court," Kaufman observes.
Dan Mendelson, founder of Avalere Health, says that it's an open question whether states will pursue further legal remedies.
"When you read the CMS letters to these states, it's clear that CMS believes that it holds all the cards. These are very assertive letters," Mendelson says. "I think in all likelihood we will see most states pulling back from these policies….The question, I think, is if there could be one or two states that decide to go to the mat."
Mendelson adds the Biden administration is making a winning political play by bolstering Medicaid. The COVID-19 relief package currently under consideration in the House of Representatives includes an enhanced Medicaid match rate for states that take up Medicaid expansion. He points to a wave of ballot initiatives that have expanded Medicaid in Republican-leaning stat
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