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plans covering Medicaid beneficiaries in the Arkansas Marketplace are still
required to cover the full range of health benefits that the Medicaid agency
would be required to cover.231 But Iowa obtained a one-year waiver of this
requirement because private insurers often do not provide such comprehensive benefits.232 This is just one of the ways that private insurers, which are
not designed to provide Medicaid benefits, might not live up to the federal
Despite the clear violation of several regulations, HHS is unlikely to enforce these requirements, especially in the early years of implementation.234
First, HHS will not even have the option of cutting off funds to the states;
the ACA requires that state-based Marketplaces be financially self-sustaining by 2015.235 HHS could potentially de-certify a Marketplace.236
But de-certifying a state Marketplace would require HHS to set up a feder-ally-run Marketplace in its place, which seems unlikely because it requires
more funding and resources.237 Finally, HHS is unlikely to enforce the requirements for political reasons.238 The Marketplaces and the ACA more
generally have been under harsh political criticism and attack.239 It seems
AFFAIRS, 4-5, (2013), available at http://healthaffairs.org/healthpolicybriefs/brief_pdfs
231. KAISER FAMILY FOUND., supra note 196.
232. Kliff, supra note 198.
One big sticking point in the debate over the Arkansas proposal was whether the
private insurance plans would have to provide their new Medicaid enrollees with
benefits that are guaranteed in the public program but not typical on the private
market. A good example is non-emergency transportation, a benefit under Medicaid that provides enrollees with rides to the doctor. This is not something that
you normally see in private insurance plans. But for a Medicaid enrollee, who
may not have a car or fall short on bus fare, this could be a very important benefit.
233. KAISER FAMILY FOUND., supra note 196.
234. Sarah Kliff, The White House keeps changing Obamacare. Is that legal?, WASH.
POST WONK BLOG, (Aug, 7, 2013), http://www.washingtonpost.com/blogs/wonkblog/
235. 42 U.S. C. A. § 18031(d)(5)( A) (West, WestlawNext through P.L. 113-163 (
excluding P.L. 113-128)) (“In establishing an Exchange under this section, the State shall ensure
that such exchange is self-sustaining beginning on January, 1 2015 . . . .”).
236. See Ctr. for Consumer Info. & Ins. Oversight, State Health Insurance Marketplaces, CTRS. FOR MEDICARE & MEDICAID SERVS., http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/ state-marketplaces.html (last visited Nov. 16, 2014) (describing application process for state-based Marketplaces to seek CMS approval and describing 19 states
that have received conditional approval pending compliance with certain federal requirements).
237. See Jost, supra note 10.
238. See James, supra note 227.
239. Since the Affordable Care Act was passed, the House of Representatives has voted
to revise or repeal the law over 50 times. Stephanie Condon, In 2014 Ads, Obamacare is