The Washington PostDemocracy Dies in Darkness

Arkansas’ unusual Medicaid pledge: ‘The program is not an entitlement program.’

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The Arkansas state legislature has officially passed legislation to use Medicaid expansion dollars to buy private insurance for some 250,000 state residents.

The bill used to do so contains one of the more unusual provisions I've ever seen in  health-care legislation. It requires those enrolling in the Medicaid expansion to acknowledge that they're not enrolling in an entitlement program. The relevant section:

(i) An eligible individual enrolled in the program shall affirmatively acknowledge that:
(1) The program is not a perpetual federal or state right or a guaranteed entitlement;
(2) The program is subject to cancellation upon appropriate notice; and
(3) The program is not an entitlement program.

To use an impartial source, the Merriam Webster dictionary defines an "entitlement" as "a government program providing benefits to members of a specified group." The Arkansas Medicaid expansion — and the Medicaid program in general — fit pretty well into that category. The program provides health benefits to a specific group of people, generally those with lower incomes, pregnant women and the disabled.

A few pages earlier, this bill defines the specified group for the Arkansas Medicaid expansion:

(3) "Eligible individuals" means individuals who:
(A) Are adults between nineteen (19) years of age and sixty-five (65) years of age with an income that is equal to or less than one hundred thirty-eight percent (138%) of the federal poverty level, including without limitation individuals who would not be eligible for Medicaid under laws and rules in effect on January 1, 2013;

I called Arkansas State Sen. Jonathan Dismang, a sponsor of this bill, to ask him to explain this provision to me.

"The point of this language is to ensure that the individual does not think he has a perpetual right to the program," he explained, adding that there has been some case law in Arkansas where the state has had issues ending programs that are entitlements.

"We want to protect ourselves at some future point," he said.

That doesn't quite answer how this program, which serves a specific set of people, is anything other than an entitlement.

Dismang replied that it had to do with funding: Arkansas would request permission for this project under Sec. 1115 of the Social Security Act, which is separate and apart from the section that deals with Medicaid (that would be Title 19, for all those curious).

States do use Sec. 1115 a lot though to modify their Medicaid programs. Medicaid counts 1115 waivers among the four ways "states can use to test new or existing ways to deliver and pay for health-care services in Medicaid."

Last, I asked how this part of the law would be implemented. Dismang says it will be left to the Department of Health Services to decide, but he generally expects "you'll be signing a statement to show an understanding, the individual will, when they enroll. They'll make sure it's simple."