Vol 23, 2014 Annals of Health Law 37
THE ACA AND PEOPLE LIVING WITH HIV/AIDS
requirement to at least 138% of the FPL. 62 However, in National
Federation, the Court held that this provision is not within Congress’
constitutional authority under the spending clause. 63 Therefore, HHS is
limited to withholding funds associated with the expansion, effectively
making individuals earning less than 138% of the FPL an optional
eligibility group. 64 As of November 2013, eighteen states had decided not
to expand eligibility to include such optional groups, 65 three states were
leaning towards not participating, 66 and five states were pursuing alternative
expansion plans. 67
The Medicaid expansion will have a tremendous impact on PLWHA’s
access to medical care. According to a recent study, Medicaid covers forty-two percent of PLWHA receiving regular medical care. 68 By expanding
Medicaid eligibility, PPACA ensures that more PLWHA will gain access to
this vital public program. 69 Currently, PLWHA are not eligible for
Medicaid in many states until they qualify as disabled pursuant to the
program’s non-income based requirements. 70 This presents a cruel catch-
22, in which PLWHA must often wait until they are too disabled to work to
qualify for the program they need to pay for medication that will prevent
HIV-related disability. 71 Even in states with more inclusive standards, strict
income guidelines forced many PLWHA to turn down opportunities for
income in response to the fear that they will become ineligible for Medicaid
63. Id. at 2604.
64. Id. at 2607.
65. Nat’l Assn. of States United for Aging & Disabilities, State Medicaid Expansion
Tracker (Nov. 1, 2013), http://www.nasuad.org/sites/default/files/State%20Medicaid%20
Expansion%20Tracker%20November%201.pdf. Alabama, Florida, Georgia, Idaho, Kansas,
Louisiana, Maine, Mississippi, Missouri, Montana, Nebraska, North Carolina, Oklahoma,
South Carolina, South Dakota, Texas, Utah, and Wisconsin have all indicated that they will
not implement the expansion. Id.
66. Id. Alaska, Virginia and Wyoming have indicated that they are unlikely to expand.
67. Id. Arkansas, Indiana, Iowa, Pennsylvania, and Tennessee are all seeking some
alternative to the expansion. Id. Arkansas is the only state that has an approved alternative
plan. Id. at 3. Arkansas’s plan creates a “private option” whereby Arkansas will use the
federal funds Congress intended to be used for Medicaid to purchase private plans for low
income residents instead. Id.
68. See Crowley & Kates, supra note 4, at 2.
69. See id. at 6.
70. Kaiser Family Found., How the ACA Changes Pathways to Insurance Coverage for
People with HIV 3 (July 2012), http://kaiserfamilyfoundation.files.wordpress.com/2013/
07/8462-helping-people-with-hiv-navigate-the-transition.pdf (noting that “[p]rior to the
ACA, federal law categorically excluded non-disabled adults without dependent children
from Medicaid, unless a state obtained a waiver or used state-only dollars to cover them”).