Biden Administration Withdraws Medicaid Work Requirements Guidance and More

President Biden was quoted last week as saying that he was not watching the impeachment trial because he had work to do. On Friday afternoon, February 12th, it was clear that the Centers for Medicare and Medicaid Services (CMS), now under new management, was doing a great deal of work to rollback a signature policy of the prior administration – Medicaid work requirements.

Readers of SayAhhh! are very familiar with the zeal with which former Administrator Verma and her colleagues pursued and pushed Medicaid work requirements despite repeated setbacks in the courts and 18,000 Arkansans very quickly lost their coverage in the only state where they were implemented. And the Supreme Court is scheduled to hear oral arguments in the Arkansas case on March 29th.

So time is of the essence for the Biden Administration to make clear that they intend to go in a different direction, despite having been in office less than a month. And a clear message has now been sent that Medicaid work requirements will not be happening during this Administration’s watch. Kicking the sequence of events off was the Executive Order signed by President Biden on January 28th which made clear that Medicaid demonstrations that created barriers to coverage, including work requirements, would be reconsidered. Then the wheels of government action cranked up last Friday. The CMS website saw a flurry of activity! My sharp-eyed colleague Allie Gardner and I started having a very fun time keeping track of it all and tweeting up a storm.

The Dear State Medicaid Director letter, which outlined Verma’s arguments for “Community Engagement” and sent to all states in January 2018, was pulled from the CMS website and removed from the guidance portal. The landing page that promoted this approach went down.

Now it looks like this:

screenshot of medicaid.gov webpage

Then state specific letters started appearing on the CMS website.

There were two kinds of letters. One set was intended to make clear that Verma’s 11th hour attempt to bind the hands of the Biden Administration had been futile. Specifically, on January 4th, Verma sent letters to all states with Section 1115 waivers (which is most states) outlining a new process, out of nowhere, to limit a future Secretary’s discretion to modify or terminate Section 1115 agreements. States were instructed to sign them ASAP and return them to her personally!

Some states likely did not sign these bizarre letters. Last Friday, the new CMS sent letters to 47 states explaining that the regular process would now be followed.

So this established that the Biden Administration intended to follow what many of us had expected as the regular order with respect to terminating all or part of a demonstration. As I blogged about in November, either party to the agreement (federal or state government) can do so, and a state has the ability to request a hearing if the federal government takes the action.

Then, in another round of letters to states with approved work requirements, CMS wrote that it was “preliminarily” disapproving work requirements as a consequence of the public health emergency and the requirements were not likely to promote the objectives of Medicaid.

Letters to these states with “approved” work requirements (AZ, AR, GA, IN, MI, NE, NH, OH, SC, UT, WI) are all posted on Medicaid.gov. You can see Arkansas’ letter here.

The Biden Administration will still have to go through these demonstrations one by one and make a final determination. And they will have to consider whether to rescind other barriers to coverage such as lockouts, premiums and the loss of retroactive eligibility. But with the disenrollment freeze in place for at least the rest of this calendar year due to the public health emergency, they have some time.

But there is more to come on this issue with the Supreme Court oral arguments looming – we will have to wait to see what happens next….

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