As part of the political compromise authorizing the two-year extension
of the “private option,” the General Assembly enacted a law maintaining
the status quo if the Supreme Court were to uphold the Affordable Care
Act’s subsidies in King, but requiring legislative approval for any state-operated Marketplace should the Supreme Court rule for the ACA’s
challengers.83 The law essentially gave the General Assembly another shot
at backing out of Arkansas’s Medicaid expansion by choosing not to create
the mechanism (a state-run Marketplace) that would be needed for federal
subsidies to continue to flow, had the Court adopted the King petitioners’
The Court’s decision upholding the federal subsidies,84 released just as
this Article went to press, makes it likely that even after 2017, Arkansas’s
expansion of health insurance coverage to low-income residents will
survive. It will have a different label, so that Governor Hutchinson and the
Republican legislature can claim credit for the program’s creation.85 It will
differ in some respects from the “private option” as it now exists, perhaps
along the lines of encouraging low-wage workers to obtain coverage
through their employers with potential help from Medicaid and
“increas[ing] personal accountability and responsibility for healthy
behavior.”86 But it will not result in the denial of health insurance to the
230,000 Arkansans who have recently been approved for enrollment for
benefits. The county-by-county map of uninsured within Arkansas’s
borders (Fig. 3 above) will continue to whiten.
Thus did Governor Hutchinson, like Governor Beebe before him, thread
the political needle—a task which the 2014 Democratic gubernatorial
83. 2015 Ark. Acts 398, available at http://www.arkleg.state.ar.us/assembly/2015/
84. King v. Burwell, 759 F.3d 358, 365 (4th Cir. 2014), cert. granted, 576 U.S. ___
(Decided June 25, 2015) (No. 14-114).
85. Gov. Hutchinson has been careful to resist, in his public statements, the idea that the
reformulated Medicaid program would merely be the same private option “tweaked in minor
ways and relabeled. . . . This is going to be a total refiguring of it.” Michael R. Wickline,
Governor: Medicaid Session Possible, N. W. ARK. DEMOCRAT- GAZETTE, April 10, 2015, at
Some of this post-2016 “refiguring” is likely to include changes outside the Medicaid
program enabled by the broad scope of waivers allowable under a different provision of the
Affordable Care Act, section 1332. For analyses of the types of policies that § 1332 “State
Innovation Waivers” might permit, see Allison, supra note 79; McDonough, supra note 79.
86. Rebecca Adams, Arkansas Governor Seeks Task Force for Medicaid Changes,
COMMONWEALTH FUND (Jan. 26, 2015), http://www.commonwealthfund.org/publications/
seeks-task-force-for-medicaid-changes (reporting Gov. Hutchinson’s suggestions for the
legislative task force that will recommend changes in the state Medicaid program); Andy
Davis, Governor Airs Health Plan: Fund Private Option through 2016, He Asks, ARK.
DEMOCRAT-GAZETTE, Jan. 23, 2015, at 1A, 2A (same).