New Hampshire

“We’ve all seen this movie before” – Judge James Boasberg, Philbrick v. Azar

On July 29 HHS approval of work and community engagement requirements as a condition of eligibility for Medicaid was again found to be arbitrary and capricious.  This time Judge James Boasberg ruled that New Hampshire’s efforts to impose work requirements as a condition of Medicaid eligibility should be halted and vacated the Secretary’s approval.  Judge Boasberg issued similar rulings earlier this year regarding the Arkansas (Gresham v. Azar) and Kentucky (Stewart v. Azar) attempts to impose work requirements. A Health Law Pulse summary may be found here.

The Court once again found that the failure to consider coverage losses rendered approval of New Hampshire’s section 1115 demonstration arbitrary and capricious.  Citing to his earlier ruling, Judge Boasberg wrote:

“Despite conceding that providing medical care to the needy is ‘Medicaid’s core objective,’ Gresham, 363 F. Supp. 3d at 176, HHS did not ‘offer its own estimates of coverage loss or grapple with comments in the administrative record projecting that the proposal would lead a substantial number of residents to be disenrolled from Medicaid.’  Id. at 175.  Plaintiffs argue that the Secretary’s approval of New Hampshire’s plan suffers from the same deficiency and thus must meet the same fate. The Court concurs.”

HHS approved Granite Advantage on November 30, 2018, but New Hampshire recently paused implementation until September 30, 2019 after learning that 17,000 individuals would lose coverage on August 1.  Judge Boasberg noted the “more exacting” nature of New Hampshire’s eligibility requirement, which would have required 100 hours a month of work or community engagement to maintain eligibility for Medicaid.  The Kentucky and Arkansas waivers imposed requirements of 80 hours per month.  HHS has appealed the Gresham and Stewart rulings to the U.S. Court of Appeals for the D.C. Circuit (Case No. 19-5095). To date, CMS has approved work and community engagement requirements in eight states.


Utah voters overwhelmingly approved a ballot initiative last November to expand their Medicaid program under the Affordable Care Act.  The Affordable Care Act provided for Medicaid coverage of individuals earning up to 138 percent of the federal poverty level, with the federal government covering 93% of the expansion population cost in 2019 (90% in 2020 and beyond).  In February, Utah lawmakers overrode the decision and limited expansion to individuals earning up to 100 percent of the federal poverty level, with the hope of receiving CMS approval for a partial-expansion where they would still receive the enhanced federal match for the expansion population.  The Obama administration had been clear that a partial expansion is not permissible.

CMS approved the limited expansion in March, but with Utah’s standard federal medical assistance percentage of 68 percent, instead of the enhanced match.  In May, Utah submitted a section 1115 demonstration request that included a request for enhanced funding for the partial expansion population but also to permit a per capita funding mechanism.  On July 26, CMS notified Governor Herbert that it would not be approving Utah’s waiver request.  Idaho and Georgia are also considering partial expansions of their Medicaid program.