Arkansas Attorney General: State cannot cap enrollment in Arkansas Works

The number of individuals who qualify for the state’s Arkansas Works program cannot be capped under federal law, Attorney General Leslie Rutledge wrote in an opinion released Monday.

Rutledge was responding to two questions from Arkansas Department of Human Services Director Cindy Gillespie. Gillespie had asked Rutledge’s office if federal law allows the number of qualifying individuals to be capped, and also if enrollment could be limited only to individuals currently enrolled.

Rutledge answered no to both, saying the plan under the law must enroll all individuals who meet certain qualifications. Restricting enrollment would make the state ineligible for all federal funds to provide insurance for any part of the Medicaid expansion population. Health and Human Services Secretary Sylvia Burwell would have the ability to grant a waiver but has made clear that she would not do so, Rutledge wrote.

Arkansas Works is the continuation of the private option, the program that uses federal Medicaid dollars to purchase private insurance for Arkansans with incomes up to 138% of the federal poverty level. It was created in 2013 after the U.S. Supreme Court ruled that states could choose whether or not to expand their Medicaid populations under the Affordable Care Act, otherwise known as Obamacare. The private option now covers roughly a quarter of a million Arkansans.

Arkansas Works, created under the leadership of Gov. Asa Hutchinson, is the latest version and is awaiting an expected federal waiver. It differs from the private option in that it would place greater responsibilities on the part of the recipients, such as a requirement that higher earning beneficiaries pay $19 toward their monthly insurance premium.

The private option has been controversial since it was created but survived a stiff legislative challenge this year after Hutchinson made changes to create Arkansas Works. Some legislators suggested the cap as a way of gaining support. However, the Centers for Medicare & Medicaid Services (CMS) has said the cap would violate federal law.

Brandi Hinkle, DHS deputy chief of communications, wrote in an email that Gillespie made the request after receiving the CMS opinion but “thought it would be prudent in light of the upcoming legislative session to request an opinion from the attorney general’s office.”

Hutchinson said Tuesday he had suggested to Gillespie she make the request. He said he expected Rutledge’s opinion to match the federal one.

“That was a constant question among the legislators, and even though we had the CMS opinion, I thought it would be helpful to have a second look at that by our attorney general, and she affirmed the federal law that we had already been advised of,” he said. “So I think it would be helpful as any legislators raised questions about it that we have a clear statement of the law from CMS as well as from the attorney general.”