On Thursday, March 11, 2021, the U.S. Supreme Court announced that it will no longer hear oral arguments that were set to occur on March 2, 2021, over D.C. Circuit Court of Appeals rulings striking down Medicaid work requirement programs in Arkansas and New Hampshire. The announcement comes after a motion filed by the Biden DOJ requesting the hearing be taken off calendar and that the lower court rulings be vacated, and the issue be remanded back to HHS to further investigate its prior approvals of the Medicaid work requirement programs. The announcement came without any issued comment or ruling, making it uncertain whether the Supreme Court will hear the case at a later date, or whether the Court will take any action with regards to the appellate court decisions. The removal of this case from the March calendar reflects the latest in a series of cases before the high court that were dismissed or put on hold while the new administration reviews and reconsiders policies established under the prior administration.

The Supreme Court had granted certiorari to consider whether the U.S. Court of Appeals for the D.C. Circuit correctly vacated HHS approvals for demonstration experiments under Section 1115 of the Medicaid Act which would implement employment, job-seeking education or community volunteer engagement requirements as a condition for Medicaid coverage in Arkansas and New Hampshire. The D.C. Circuit recognized the HHS’s authority to design and approve work experiments under Section 1115 but held that HHS failed to consider a primary objective of the Medicaid Program, coverage and access to medical care, when designing and approving the Arkansas and New Hampshire demonstrations. The Arkansas and New Hampshire cases were consolidated before the U.S. Supreme Court as Cochran v. Gresham, U.S. No. 20-37.

The Biden Administration has given early indication that HHS’s approvals of Medicaid work requirement programs issued under the Trump Administration would be the subject of review and reconsideration. On January 28, 2021, President Biden signed an Executive Order directing HHS to review waivers issued under the prior administration that “may reduce coverage under or otherwise undermine Medicaid.”

Shortly after former HHS Secretary Alex Azar filed a Supreme Court brief supporting these Medicaid work requirements, on February 12, 2021, Acting CMS Administrator Elizabeth Richter sent notices to states that had received these Section 1115 waivers, including Arkansas and New Hampshire, of CMS’s intent to take steps to withdraw those approvals. The February 12, 2021 notices stated the administration’s determination that work-related requirements would not promote the objectives of the Medicaid Program, citing the risk of unintended coverage loss as a result of the ongoing pandemic and its impact on work opportunities, access to transportation and affordable childcare.

On February 22, 2021, Acting Solicitor General Elizabeth Prelogar filed a motion with the Supreme Court in which the Biden DOJ requested the high court remove the March hearing from its calendar in light of this change in policy, stating that these cases no longer present an appropriate context to determine the scope of HHS authority to approve demonstration policies. The motion requested that the lower court decisions be vacated so that the issue could be remanded back to the HHS for review and determination as to how to proceed with respect to the previously issued approvals. No decision has been made yet by the Supreme Court on DOJ’s request to vacate the D.C. Circuit decision.

President Biden’s January 28, 2021 Executive Order on Strengthening Medicaid and the Affordable Care Act can be found here. A version of the February 12, 2021 letter from CMS regarding Medicaid work requirement programs can be found here.