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Medicaid Work Requirements Cannot Be Authorized Under 1115 Waivers
In a December 11 advisory opinion, the HHS Office of the General Counsel (OGC) concludes that CMS lacks the authority to approve section 1115 Medicaid waivers that impose work requirements as a condition on Medicaid eligibility. Under federal law, 1115 waivers are approvable only if they promote Medicaid objectives. Consistent with multiple prior court decisions, OGC identifies Medicaid’s “core objective” as providing health coverage. Work requirements conflict with that objective, the opinion concludes, because they “restrict access to medical assistance.”
The opinion reviews the history of work requirement waivers first approved under the Trump Administration in more than a dozen states. Those waivers were blocked in court and ultimately rescinded by the Biden Administration based on evidence of heavy coverage losses during early implementation—including many beneficiaries who were either compliant with or exempt from work requirements, but who failed to properly report that information to the state. The advisory opinion reports similar results from Georgia’s more recent implementation of work requirements—a policy reinstated by a court after CMS attempted to rescind it.
States Cannot Exlude Abortion Providers From Medicaid
In a second advisory opinion released December 11, HHS OGC clarifies the limits on states’ authority to exclude providers from Medicaid based on lawful activities conducted outside the Medicaid program.
The opinion focuses specifically on providers who prescribe medication abortion, emphasizing a January 2023 opinion issued by the Department of Justice (DOJ) Office of Legal Counsel, which concluded that the Comstock Act of 1873 does not criminalize the prescribing or delivery of medication abortion “where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”
More broadly, HHS OGC has reaffirmed the general federal requirements that Medicaid beneficiaries generally have the right to choose any willing and qualified provider, subject to certain exceptions (such as closed managed care networks); and although states may define minimum qualifications for Medicaid programs, those qualifications must address the provider’s capability to “perform the required services in a professionally competent, safe, legal, and ethical manner” or “appropriately bill for those services.”
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