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Arkansas Medicaid work requirement ruling deals blow to New Hampshire program

  • The New Hampshire State House in Concord on Oct. 4, 2018 Sarah Pearson

Monitor staff
Published: 2/14/2020 6:28:45 PM
Modified: 2/14/2020 6:28:32 PM

New Hampshire’s Medicaid expansion work requirement received a potentially fatal blow Friday, after the Washington D.C. Circuit Court of Appeals ruled against a similar program in Arkansas.

In a unanimous ruling, the Circuit Court found that the U.S. Department of Health and Human Services lacked the authority to approve Arkansas’s program under the Medicaid law. That same federal agency had approved New Hampshire's application for a work requirement. 

The ruling has immediate potential implications for New Hampshire’s program, which is the subject of a separate lawsuit facing an appeal in the same court. 

Because the two states’ programs were approved in a similar fashion, the precedent set Friday could spell doom for the appeal of a separate ruling against New Hampshire’s program. 

“We can’t say with certainty how the New Hampshire case will exactly proceed, but this opinion will certainly affect it,” said Leo Cuello, the director of health policy for the National Health Law Program, in an interview Friday.

The National Health Law Program is a non-profit that has brought lawsuits against work requirement approvals in New Hampshire, Arkansas and West Virginia.

“The case that was decided today is binding precedent in the district court and the circuit court,” Cuello added. 

New Hampshire’s Attorney General’s office, which was co-defending the law with the U.S. Department of Justice, did not say whether it would continue its appeal. 

“We are actively reviewing the decision,” said spokeswoman Kate Spiner.

The U.S. Department of Justice declined to comment. 

New Hampshire's work requirement has been tied up in court almost as soon as it began. 

In 2018, state lawmakers added a work requirement to the New Hampshire’s Medicaid expansion program, the Affordable Care Act extension that provides health care to 50,000 low-income Granite Staters.

That requirement, which mandated 100 hours of work, community engagement or other activities a month with exceptions, was signed off by Gov. Chris Sununu and approved by the U.S. Health and Human Services that year. Under the program, those who didn't meet the minimum work hours or demonstrate an exception could have been kicked off their Medicaid expansion coverage. 

But by the time the program got up and running in June 2019, the health law legal group had already joined with New Hampshire Legal Assistance and a case was already being heard at the U.S. District Court of D.C.

Last year, that court struck down New Hampshire’s work requirement only a month after it had taken effect. The decision vacated the rule before anyone could be removed from the insurance rolls.

As New Hampshire's case worked its way through the courts, it followed several steps behind Arkansas. The same district court that vacated New Hampshire’s work requirement had vacated Arkansas’s before. And the same Circuit Court has taken up the two states’ appeals.

Last year, seeing that trend, the U.S. Department of Justice requested an “abeyance” on New Hampshire’s Circuit Court appeal: a freeze of the appeal until it heard the Arkansas decision.

Now, with the Arkansas decision, Justice Department attorneys have until March 16 to decide what to do next for New Hampshire, according to a directive from the court Friday. 

They could forge ahead with their own appeal. They could continue freezing their appeal and wait to see whether the U.S. Supreme Court takes up the Arkansas case. Or they could drop the case. 

Dawn McKinney, policy director at New Hampshire Legal Assistance, praised Friday’s ruling, while acknowledging it wasn't the end of the road.

“We’re obviously pleased with the decision,” she said in an interview. “It recognizes the concerns that we’ve maintained since the beginning. Work requirements are contrary to federal law.”

(Ethan DeWitt can be reached at, at (603) 369-3307, or on Twitter at @edewittNH.)

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