[author: Regina DeSantis, Law Clerk]

On March 11, the Supreme Court removed the dispute over Medicaid work requirements, which was previously scheduled for March 29, from its argument calendar. It is worth noting that the Court did not issue a ruling with its cancellation notification.

Recall how the High Court granted certiorari to Azar v. Gresham and Arkansas v. Gresham on December 4, 2020. The consolidated case, Cochran v. Gresham, challenges HHS’ authority to approve incorporation of employment, job-seeking, and community-engagement requirements as a condition for Medicaid coverage in Arkansas and New Hampshire under a novel §1115 waiver granted to both states by the prior Administration. On January 19, 2021, former HHS Secretary Alex Azar filed a Supreme Court brief supporting work requirements. Shortly thereafter, on February 12, acting CMS Administrator Elizabeth Richter sent letters to Medicaid Directors in states that received “community engagement” 1115 waiver approvals from former CMS Administrator Seema Verma, announcing CMS’s intent to commence a process of determining whether to withdraw the approvals, as the agency no longer believes that requiring employment as a condition for Medicaid coverage promotes the program’s objectives.

Most recently, on February 22, acting Solicitor General Elizabeth Prelogar filed a motion asking the Supreme Court to cancel its scheduled oral arguments challenging Medicaid’s work requirements. According to Prelogar, the arguments are no longer necessary because the Biden Administration has “preliminarily determined” that work requirements do not align to the Medicaid program’s goals. Further, no states have implemented Medicaid work requirements (as a condition for receiving extra funding from a COVID-19 relief bill). Prelogar asked for the Supreme Court to toss out the Appeals Court rulings for Arkansas and New Hampshire and instead send the issue back to HHS to resolve. As of the time of publication, it is unclear if, or when, the Supreme Court will reschedule arguments.

However, it is clear that the Biden Administration has a very different opinion from the Trump Administration regarding how, if at all, work requirements further the Medicaid program’s “objectives.” My colleague Ross recently discussed how the Biden Administration has made swift efforts to retract several last-minute policies from the Trump Administration, not least being the rapid removal (and update) of the Trump-era 1115 objectives from the Medicaid website (Biden’s objectives can be found here, and thanks to the internet’s archival capabilities, here is what the same page looked like under the Trump Administration). President Biden has since announced the nomination of Chiquita Brooks-LaSure to lead CMS, whom we anticipate will further the Biden Administration’s interpretation of Medicaid’s objectives. However, it is possible that the arguments could get rescheduled after there is confirmed political leadership at CMS. It is also possible that CMS, once it has confirmed leadership, might formally rescind the 1115 approvals in advance of any rescheduled arguments. We will continue to update our readers with any subsequent developments.

NOTE: We at Medicaid and the Law have followed the ongoing legal and policy challenges around Medicaid work requirements from the beginning. If you are just catching up now—or would like a refresher—you can follow the work requirement and work requirements tags on our blog. Additionally, here are our previous posts on Medicaid work requirements in chronological order (from oldest to most recent):

· CMS Issues New Guidelines on 1115 Waivers; Signals New Medicaid Objectives

· Starting Off The New Year With Work: How CMS’ “Work and Community Engagement” Policy Change Could Affect Stakeholders

· CMS Approves More Medicaid Work Requirements and Even More States Submit Request for the Same

· Kentucky Medicaid Waiver Blocked by Federal Courts

· Court Strikes Down Work Requirements in Arkansas and Kentucky

· Washington D.C. Appellate Court Upholds Prohibition on Medicaid Work Requirement Waivers

· Outgoing HHS Secretary Files Supreme Court Brief Supporting Medicaid Work Requirements

· President Biden Takes First Step Towards Reversing Trump Era Medicaid Policies

· CMS Indicates Reversal of Medicaid Work Requirements

· CMS Begins Internal Purge of Trump-Era Medicaid Policies