Working 9 to 5? Equal Protection and States' Efforts to Impose Work Requirements for Medicaid Eligibility

By Wasserstein, David | American University Law Review, January 1, 2019 | Go to article overview

Working 9 to 5? Equal Protection and States' Efforts to Impose Work Requirements for Medicaid Eligibility


Wasserstein, David, American University Law Review


But there is another tradition that we share today. It calls upon us never to be indifferent toward despair. It commands us never to turn away from helplessness. It directs us never to ignore or to spurn those who suffer untended in a land that is bursting with abundance.

-Lyndon B. Johnson1

INTRODUCTION

The election of Donald Trump in 2016 furthered a longstanding yearning amongst Republicans to institute generational welfare reform. The Trump administration is in the process of reshaping the fundamental mechanisms by which the government provides life-saving assistance.2 One such program under siege is Medicaid, a jointly funded federal-state effort to expand access to healthcare for low-income Americans, that has never required employment for beneficiaries to retain eligibility. Under section 1115 of the Social Security Act,3 states can request "Demonstration Waivers" to use federal Medicaid funds to implement "experimental, pilot, or demonstration projects" in coverage approaches.4 The Secretary of Health and Human Services (HHS) has discretion to approve waivers if the program or proposal furthers the objectives of Medicaid.5 In January 2018, in response to a growing number of states requesting waivers to impose work requirements for Medicaid recipients, the Centers for Medicare and Medicaid Services (CMS) sent a letter to state Medicaid directors providing guidance as to the parameters for what would pass muster.6 As of November 2019, eighteen states have requested a section 1115 waiver with six gaining final approval by HHS.7

The position of cMs and HHs represents a notable shift in federal policy. In the past, states' requests to impose a work requirement on Medicaid recipients were rejected by CMS and HHS.8

With the Trump administration's more favorable attitude toward waivers, Kentucky decided to impose a work requirement on its Medicaid recipients. The State of Kentucky's decision to impose work requirements upended what had been an undeniably successful Medicaid expansion within the state in 2014.9 The State's particular waiver mandates that all Kentucky HEALTH (the name of the State's Medicaid program) enrollees without exemptions participate in eighty hours of employment or community engagement activities and provide documentation as a condition of continued eligibility.10 These requirements have remained unchanged since Kentucky first requested a section 1115 waiver in 2017.11

Kentucky residents immediately challenged the State's waiver request in federal district court.12 In the resulting litigation, Stewart v. Azar,15 Judge James E. Boasberg of the U.S. District Court for the District of Columbia remanded waiver back to HHS for review, holding that the Secretary's decision was arbitrary and capricious because the agency had not adequately accounted for substantial disenrollment in the program.14 The court also expressed significant unease with the idea that work requirements adhered to the intent and purpose of Medicaid.15 After the remand and a mandated public comment period, on November 20, 2018, CMS reapproved Kentucky's work requirements after the state made only minor technical adjustments.16 CMS again asserted that the program fell within the objectives of Medicaid, but plaintiffs subsequently challenged the revised work requirement in court.17 While efforts in Kentucky were challenged, the State of Arkansas successfully implemented a work requirement on Medicaid recipients before a suit was brought against it in the same court as the Kentucky case.18 The same judge heard both states' cases, and on March 27, 2019, Judge Boasberg struck down the validity of both states' work requirements.19 Judge Boasberg invalidated work requirements under the same arbitrary and capricious standard in rejecting both states' arguments that the financial solvency of the states' individual programs and the financial self-sufficiency of Medicaid recipients were appropriate objectives of the Medicaid program. …

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