The Trump administration is using executive power it does not legally have to unilaterally change the purpose of Medicaid. According to legal experts, the president’s plan to make access to Medicaid contingent on applicants’ ability to meet work requirements would turn the program from one that furnishes health care into a program that punishes and shames the poor.
This is one of the main takeaways from the lawsuit that was filed in DC district court on Tuesday, which alleges the administration’s secretary of Health and Human Services, Alex Azar, violated the law in approving Arkansas’s request to add work requirements to its Medicaid program. Arkansas is the first state to implement work requirements as part of its Medicaid program — a key part of the Republican Party’s efforts to weaken Medicaid despite being unable to pass any laws.
Seema Verma, the director of the Centers for Medicare and Medicaid Services — a longtime supporter of these policies — is also named as a defendant in the suit. It was filed on behalf of three plaintiffs by the National Health Law Program, Legal Aid of Arkansas and the Southern Poverty Law Center.
“This lawsuit is the continuation of our work, with our state and national partners, to stop the Trump administration’s attempt to transform Medicaid from a health insurance program to a work program — and along the way, to end coverage of medically necessary care for thousands of low-income people,” Jane Perkins, director of the National Health Law Program, said in a statement.
If his administration and GOP allies in the states are successful in normalizing work requirements, Trump will have “unilaterally changed Medicaid policy using a federal agency to circumvent Medicaid statutes and the legislative process,” as Kevin De Liban, an attorney at Legal Aid of Arkansas, told Truthout. “This is a real broad reading of executive authority…. To make wholesale changes to health care policy like that is unprecedented. Medicaid has been around for 50 years and there is nothing about work in the statutes.”
The lawsuit is extremely harsh in its assessment of Trump’s executive overreach. It reads: “The Executive Branch [has effectively] rewritten the [Medicaid] statute, ignoring congressional restrictions, overturning a half century of administrative practice, and threatening irreparable harm to the health and welfare of the poorest and most vulnerable in our country.”
The National Implications of Cases in Arkansas and Kentucky
In June, advocates celebrated a victory in the same court to stop the policy in Kentucky (Stewart v. Azar), thanks to a suit also filed by the Southern Poverty Law Center, the National Health Law Program and local allies. DC district court Judge James Boasberg’s decision was a stinging rejection of the Trump policy. He ruled that Azar never “adequately considered” if the changes “help the state furnish medical assistance to its citizens, the central objective of Medicaid.”
On July 2, MaryBeth Musumeci, associate director at the Kaiser Family Foundation, reported on the potential national implications of that case. “While this decision may not be the last word on such waivers,” she writes, “the court’s decision is notable for its affirmation of Medicaid’s status as a health insurance program and the program’s equal treatment of all groups covered by the statute.”
Azar, however, insists he is undeterred. “We’re fully committed to work requirements and community participation in the Medicaid program,” he said at a Heritage Foundation speech in July, in response to Boasberg’s decision.
If the administration keeps approving waivers, lawyers warn, litigation could occur in any (or even all) of the dozen states that are pursuing work requirements. There will also be a lengthy appeals process, lawyers suspect. It is conceivable that this could end up in the Supreme Court, which has health care advocates nervous, given its increasingly conservative bent. (Trump’s nominee for justice, Brett Kavanaugh, has a mixed health care record.)
While legal efforts are aggressive and ongoing, litigation seems to be the last line of defense. Despite the ominous threat that these policies pose to the country, they get very little national media coverage, including virtually no coverage on national television. Grassroots attention is minimal at the national level as well, as the Mueller investigation, the 2018 midterms and a host of other issues dominate the news cycle. Regional outlets often report on these issues on the state level, but building national grassroots resistance against the attacks on Medicaid has proved much more difficult than building resistance to Trumpcare, since Medicaid policies are not on everyone’s radar.
“It is a challenge to educate people about this issue,” said Anna Kruk Corbin, an activist who has been fighting to protect Medicaid in Pennsylvania, in an interview with Truthout. “But Medicaid is being threatened again, and people need to know about it and fight back like we did a year ago.”
The language in the lawsuit makes it very clear that Trump’s aggressive tactics impact patients not just in Arkansas but throughout the entire country. At least 11 states are pursuing work requirements using a Medicaid 1115 waiver, which allows for some changes to Medicaid law for experimental programs. Lawyers for the plaintiffs argue these are “wholesale” and not experimental changes that do not meet the legal standard for a waiver since they are not “likely to assist in promoting the objectives of Medicaid.”
The legal strategy, thus far, has been to sue the executive branch and Health and Human Services, rather than the states. This makes sense, given that Trump is trying to remake federal health policy (albeit one state at a time). Additionally, the Government Accountability Organization reported in January that the Medicaid 1115 waiver system is woefully out of date, unaccountable and badly in need of reform.
It is worth noting that the Republicans also tried to pass work requirements as part of several iterations of Trumpcare, including Graham-Cassidy, according to Sara Rosenbaum at Health Affairs. This is relevant for two reasons: It shows that Republicans largely support this cruel policy on a national level and it supports the argument that such a large change requires an act of Congress.
“Why would they need to pass a law if they already had the power to change Medicaid?” asked Leonardo Cuello, an attorney for the National Health Law Program, in an interview with Truthout. “It is because they knew such a change requires legislation.”
If work requirements were implemented in all 50 states, between 1.4 and 4 million would lose insurance, according to a Kaiser Family Foundation estimate published on July 27. Many millions more would face new uncertainties about their ability to receive health care in the future.
“Most people losing coverage are disenrolled due to lack of reporting rather than not complying with the work requirement,” the report notes.
Work Requirements as Part of Medicaid Expansion: A Catch-22 for Democrats
Republicans in some states are also attaching Medicaid work requirements to Medicaid expansion, putting Democrats at the state level in a tough spot between supporting work requirements or voting against expanding Medicaid to more people. This scenario played out in Virginia this Spring.
The work requirement has given some cover to Republicans to support expanding Medicaid eligibility to Obamacare levels (133 percent of the federal poverty level). Most states expanded Medicaid as part of the Affordable Care Act, but the Supreme Court’s decision in 2012 ruled states could opt out of the program – and 17 did.
Sen. Frank Wagner, a state senator in Virginia, said in an op-ed that “firm work requirement for able-bodied adult Medicaid recipients must be incorporated into any expansion plan,” as “no one should be allowed to sit around and collect benefits while other Virginians work to pay for those benefits.”
While providing coverage to more people is important, advocates fear Democrats are risking the normalization of these work requirements and could help perpetuate the myth that the poor are lazy and don’t want to work — the basic theory behind these behaviorist approaches to social welfare.
The Dreadful Experiment in Arkansas Should Be a Warning to the US
Arkansas is the first state to implement work requirements as part of Medicaid. In June, the first phase was implemented. Citizens who are between the ages of 30 and 49 and otherwise eligible for Medicaid must work or volunteer 80 hours a week and report on the 5th of each month (if they fail to meet the deadline, these hours do not count toward the requirements). They are obligated to report these hours on an online portal — and nothing else. The option to use a phone or the post office to report income does not exist. Here is how the process is described in Tuesday’s lawsuit:
To use the online portal, enrollees need an email address, a log-in and password unique to the portal, and a reference number provided in a multi-page letter sent by DHS. Enrollees use the reference number to link their insurance account to the reporting portal. Once the link is established, individuals must click through multiple different screens to report their work activities each month. The portal is only accessible to beneficiaries between the hours of 7 a.m. and 9 p.m. Sometimes, DHS schedules online maintenance of the portal during these operating hours.
Given that Arkansas ranks 46th in broadband access, there is no good justification for creating this many obstacles to report work hours, except one: Its architects want the rolls to shrink. Adding administrative burdens often results in people losing access to programs they are eligible for.
A 2015 study from the Gerontological Society of America concludes that the “key challenges faced by citizens include things like the need to learn about the program, invest time and effort to satisfy procedural requirements, such as documenting income for a program like food stamps, and the potential to experience psychological self-esteem costs in participating, such as the stigma associated with a means test program like food stamps.”
The results in Arkansas are strong evidence of this. So far, of the 16,022 working-age adults who are not automatically exempt from Medicaid work requirements in Arkansas, only 844 successfully satisfied their requirements, while 12,722 failed to do so, according to the Arkansas Department of Human Services (1,571 received an exemption after notice). This is consistent with the result of the aforementioned Kaiser study showing that most people who would lose care would actually meet the work criteria for inclusion of the program. The Republicans are turning Medicaid eligibility into a carnival game: It is designed to make would-be recipients fail.
The Republican Arkansas governor was defiant. “This lawsuit has one goal, which is to undermine our efforts to bring Arkansans back into the workforce, increase worker training, and to offer improved economic prospects for those who desire to be less dependent on the government,” said Gov. Asa Hutchinson, a heavy favorite to win re-election this year, in response to the lawsuit.
“As for the process of reporting work, DHS is providing substantial assistance to anyone that has limited access to internet or who may encounter additional challenges … however, we must have an accountable system that does not leave thousands of able-bodied recipients on the Medicaid rolls who may not qualify.”
Hutchinson offered no specifics as to what assistance Arkansas is providing to those without limited internet access, or how taking away health care from thousands of people improve their “economic prospects.” An email from Truthout to the governor’s office was not returned as of press time.
Thanks to the hard work of legal advocates and plaintiffs, however, the Trump administration may well be tasked with convincing a federal judge these requirements “are likely to assist in promoting the objectives of Medicaid.”
Local advocates for patients welcomed the lawsuit. The work requirement program “has been touted as a way to ensure Arkansans are working, but in reality it only creates costly bureaucratic red tape and new barriers to coverage,” said a statement from Arkansas Advocates for Family & Children, which expressed “support for the individuals who were willing to speak up and be a voice for all families that will be harmed by this policy.”
If Medicaid is not spared from the GOP’s already failing experiment, the entire country risks seeing a valuable part of our safety net dismantled. This would not only harm current recipients but also anyone in future generations who might benefit from Medicaid.
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