Gov. Asa Hutchinson said Thursday that he has urged federal officials to quickly appeal a judge's ruling that struck down the work requirement for Arkansas' Medicaid expansion program.
In the meantime, he said, legislators should approve Senate Bill 99, which authorizes spending on the state's Medicaid program, including the expanded part known as Arkansas Works.
"If we take Arkansas Works out of the [state Department of Human Services] appropriation, then we're in essence giving up on the fight and saying we no longer need a work requirement, we no longer want to fight for it, and that would moot the outcome of the appeal," he said.
House Speaker Matthew Shepherd said he expects the House to vote on the bill today. The Senate approved it Wednesday.
Wednesday's ruling by U.S. District Judge James Boasberg in Washington, D.C., is "just another piece of information that the membership will have to weigh as to how they feel about voting on the appropriation," Hutchinson said during a news conference at the Capitol.
"At this point, I've not heard the type of push-back that would lead me to believe it is in jeopardy," he said of the appropriation bill.
In a pair of rulings on Wednesday, Boasberg overturned the approval by President Donald Trump's administration of Medicaid work requirements in Arkansas and Kentucky.
In approving waivers allowing the requirements, the Trump administration violated federal laws governing Medicaid by failing to consider the requirements' effect on the Medicaid program's goal of proving health coverage to needy people, Boasberg said in the rulings.
The administration's "failure to consider the effects of the project on coverage alone renders his decision arbitrary and capricious," the judge wrote in the Arkansas ruling.
Hutchinson said that on Thursday morning he made his case for an appeal, and a request for the appeal to be expedited to U.S. Deputy Health and Human Services Secretary Eric Hargan and other federal officials.
"I expect this to move quickly," Hutchinson said. "I was very encouraged by it and that they want to take an aggressive approach on it."
A spokesman for the federal Centers for Medicare and Medicaid Services confirmed that Hargan and other department officials had spoken with Hutchinson. The decision on whether to appeal will be up to the Department of Justice, he said.
A Justice Department spokesman declined to comment.
Although Arkansas was allowed to make arguments in the case as an "intervenor," the state doesn't have standing to appeal Boasberg's decision on its own, Hutchinson said at Thursday's news conference with legislative leaders and other state officials.
He noted that Arkansas in June became the first state to implement a work requirement for some of its Medicaid enrollees.
"If we give up on this, then we give up on the opportunity to lead nationally on this important program that gives Arkansans a better opportunity for training, for access to the marketplace and the jobs that they want and that they've proven they are capable of handling," Hutchinson said.
Legal Aid of Arkansas attorney Kevin De Liban said he couldn't predict how an appeals court would rule, but he described Boasberg's ruling as "both cautious and thoughtful."
The Jonesboro group is one of three organizations that filed the lawsuit challenging the work requirement on behalf of several enrollees.
"If the state or federal government decides to take any further steps, we'll be right by our clients' side," he said.
The work requirement had resulted in 18,164 Arkansans losing their coverage last year and in January. Boasberg's ruling caused the state to scrap another round of terminations that had been set for Monday.
To stay in compliance, enrollees who didn't qualify for an exemption had been required to spend 80 hours a month on work or other approved activities and report what they did through a state website or over the phone, an option that was added in December.
Those who failed to report for three months during a year were terminated from the program and barred from re-enrolling for the rest of the year.
Leland Moore, 43, of Paragould said the ruling "lifted a brick off my shoulder."
The Arkansas Works enrollee had already accumulated two months of noncompliance, and was two days away from the deadline to report for a third month, when he contacted Legal Aid of Arkansas in December after seeing a Facebook post.
The organization helped him create an account on the state website and obtain a two-month exemption based on a "temporary disability" stemming from arthritis and other health problems.
The group helped him again in January after he was locked out of his account.
"I was scared to death, because I'm on 10 different medications right now," he said. "I thought I was going to lose everything."
Human Services Department officials said Thursday that letters and emails would soon go out to the program's 235,000 enrollees informing them that the requirement is no longer in effect.
While preserving coverage for thousands of enrollees, Boasberg's ruling added a potential obstacle for legislative leaders in their efforts to secure funding for the Medicaid program.
Spending bills require the approval of three-fourths of the members of each chamber of the Legislature, a threshold that has at times been difficult since Medicaid expansion was first approved by the Republican-controlled Legislature in 2013.
The expansion, authorized under the 2010 Patient Protection and Affordable Care Act, extended coverage to adults with incomes of up to 138 percent of the poverty level. This year, that cutoff is is $17,236 for an individual or $35,535 for a family of four.
The Senate on Wednesday approved SB99, in 27-4 vote, just before lawmakers learned of Boasberg's ruling.
The bill will need 75 votes to clear the the 100-member House.
Shepherd said Thursday that he decided to have lawmakers meet today -- the first Friday the Legislature has met during this year's session -- and begin considering budget bills because the end of the session is approaching.
Rep. Rick Beck, R-Center Ridge, said he "will probably not vote" for SB99 today because he wants to know more about how the ruling will affect Arkansas Works.
He voted for the Medicaid program's appropriation bill last year after voting against it the year before.
"In my opinion, there's no need for us to rush the vote at this point," he said.
Rep. Robin Lundstrum, R-Elm Springs, who has opposed the appropriation since 2016, said the ruling "kind of guts the whole purpose of Arkansas Works."
But she said she hasn't decided how she'll vote.
"I'm not going to make a knee-jerk reaction right now," she said.
The work requirement was phased in last year and in January for Arkansas Works enrollees age 30-49 and was being added this year for those age 19-29.
The ruling didn't restore coverage to those who had already been kicked off, although they all became eligible to re-enroll on Jan. 1 because of the start of the new year.
Like all new Medicaid enrollees, those who re-enroll in Arkansas Works can seek reimbursement from the Medicaid program for up to 90 days of past medical expenses.
The state had limited retroactive coverage for new Arkansas Works enrollees to 30 days, but Boasberg's ruling on Wednesday also overturned the Trump administration's approval of that change.
Boasberg, who was appointed by President Barack Obama in 2011, had ruled against Kentucky's requirement once before, in June, on the same grounds that were used in his rejection Wednesday.
Rather than appeal the June ruling, the Trump administration solicited a new round of public comments on the plan and issued a new approval letter in November.
A suit filed this month challenging New Hampshire's work requirement also has been assigned to Boasberg, who will likely hear any future challenges to work requirements approved in other states.
Unless Boasberg's rulings are successfully challenged on appeal or the Trump administration changes the way it approves requests for such requirements, "I think we'll likely be seeing a kind of repeat," of the decisions in the Arkansas and Kentucky cases, said Kelly Whitener, an associate professor at the Georgetown University Health Policy Institute's Center for Children and Families.
At the same time, she said, an appeal of Boasberg's ruling could result in an appellate ruling that goes farther than Boasberg's in barring Medicaid work requirements.
"It could get into the next-level question of does [Health and Human Services Secretary Alex Azar] have this authority at all," Whitener said.
Hutchinson said an appeal in Arkansas' case is more likely than a new approval letter.
"I think [the Trump administration] learned something" after issuing a second approval letter for Kentucky, he said. "If you issue another work requirement, it's going to wind up going back to Judge Boasberg, and you're likely to get the same result."
A Section on 03/29/2019