The Trump administration may not be able to successfully implement the work requirements and other Medicaid eligibility caveats proffered by Health and Human Services Secretary Tom Price, MD, according to Jane Perkins, legal director for the National Health Law Program.
In March, Secretary Price and Seema Verma, administrator of the Centers for Medicare & Medicaid Services, wrote to state governors, letting them know that the HHS would support states’ efforts to increase employment, community engagement, and work requirements for Medicaid recipients. The letter also was supportive of aligning Medicaid benefits with private insurance via alternative benefits, cost-sharing, and premium payments.
High mandatory premiums, cost sharing, lifetime limits, and drug testing “are of concern to us,” Ms. Perkins said at an April 13 press briefing. “They really change the complexion of Medicaid and Medicaid coverage for low-income people.”
These requirements “are not typically seen in Medicaid programs,” she said.
While Section 1115 of the Social Security Act “allows states to test novel approaches to providing medical assistance” via Medicaid waivers, it does not allow the HHS or the states to “ignore congressional mandates; to cut eligibility, services, or provider payments; or to use section 1115 to save money,” according to an issue brief by Ms. Perkins.
Kentucky submitted a Medicaid waiver request to the Obama administration in August 2016; it was not acted upon and is still awaiting action by the HHS. Other states that are looking into waivers include Indiana, Arizona, Maine, Florida, and Montana.
When asked how work requirements harm people, Ms. Perkins responded that adding a work requirement to Medicaid eligibility gets things “backwards,” because a sick person needs health care before being able to return to work.
The work requirement would not save states much money, as nearly 8 in 10 adults on Medicaid are in a household that includes a worker and 59% of recipients work themselves, according to a Kaiser Family Foundation study. The adults affected by the work requirement would make up only a drop in the ocean of Medicaid spending. About two-thirds of that spending goes toward senior citizens, people with disabilities, children, and people in long term care, according to projections from the Congressional Budget Office.
There’s also a question of whether Medicaid waivers would hold up when subjected to legal challenges. Heads of federal agencies are given broad rule-making authority; however, courts have previously rejected the argument that they have unlimited discretion. Secretaries must adhere to the Administrative Procedures Act, a federal law that limits how they implement regulations, requires time for public comment, and provides specific guidelines on the rule-making process. The law denies departments the ability to engage in rule making that is arbitrary or capricious.
The National Health Law program, which advocates for low-income Medicaid recipients, is following the waivers state-by-state with a network of lawyers who work with people with disabilities in each state.
“With this new openness to flexibility, we are certainly watching what is going on in the states,” Ms. Perkins said.
