President Donald Trump’s administration is plunging ahead with waivers that will encourage states to impose controversial work requirements on Medicaid recipients despite a federal judge’s ruling striking down such requirements in Arkansas and Kentucky.
Last month Ohio became the ninth state to receive federal permission to mandate work for certain Medicaid beneficiaries. Other states in various phases of the approval process for work requirements include Arizona, Indiana, Michigan, New Hampshire, Utah and Virginia.
Medicaid, covering about one in five Americans, is the federal-state program that provides health care to the disabled and persons with low income.
The Affordable Care Act, often called Obamacare, allowed states to expand Medicaid coverage to individuals and families with income up to 138 percent above the poverty line. Thirty-one states and the District of Columbia have done so, and expansion is pending in three other states.
In striking down the Arkansas plan and, for a second time, the Kentucky plan, Judge James Boasberg of the U.S. District Court for the District of Columbia, an appointee of President Barack Obama, said Health & Human Services Secretary Alex Azar had been “arbitrary and capricious” when he approved work requirements in these states.
Azar defends such requirements as helpful to the health and economic situations of poor people, a claim critics say is disputed by the facts. The Arkansas experiment with work requirements dropped 18,000 people from the Medicaid rolls, including some who were working but lacked the required computer access.
The Trump administration has repeatedly invited states to seek waivers for work requirements and other purposes and has approved most applications.
Putting a human face on his decision invalidating the Arkansas law, Boasberg related the travails of Adrian McGonigal, a 40-year-old food service worker from Pea Ridge, Ark., with serious medical conditions. He was employed by a poultry company that provided no health insurance.
Beginning in 2014, McGonigal received medical care and prescription drugs through the state’s expanded Medicaid program. In 2018 he was told of new work requirements.
“Despite his lack of access to and difficulty working with computers, he was able to report his employment in June 2018 but did not know he needed to continue to do so each month,” Boasberg wrote. “As a result, when he went to pick up his prescriptions in October, the pharmacist told him he was no longer covered, and his medicines would cost him $800.”
Without the prescriptions, McGonigal’s health deteriorated, he had several work absences and was fired.
“He thus lost his Medicaid coverage and his job,” Boasberg observed.
This is not an isolated case, according to Sara Rosenbaum, professor of health law and policy at George Washington University. She said in an interview that it was ironic to use work requirements to remove people who are already working from the Medicaid rolls.
Nearly eight in 10 of adults receiving Medicaid live in working families, and a majority are working themselves, according to the Kaiser Family Foundation. Many have care-giving responsibilities for children or senior adults.
Rosenbaum pointed out that Medicaid expansion was incorporated into the ACA because low-income workers are unlikely to have health insurance. Medicaid has helped people return to work because it provides the health care they need to make work possible, she said.
The battle over Medicaid work requirements is part of a larger partisan struggle in which Trump and 18 Republican state attorneys general continue their efforts to dismantle Obamacare.
Republicans tried to abolish the ACA in 2018, when they controlled both houses of Congress, but fell short. Democrats won the House of Representatives in the 2018 elections and have rallied in support of the law.
But Republicans got a boost last December when a Texas federal judge, ruling on the lawsuit filed by the GOP attorneys general, found that a provision of the ACA requiring Americans to buy health insurance or pay a penalty was unconstitutional. Judge Reed O’Connor of the U.S. District Court of the Northern District of Texas said this invalidated every other section of the 2,000-page law.
The case is now before the 5th U.S. Circuit Court of Appeals and is expected eventually to reach the U.S. Supreme Court, where the five-justice majority that found Obamacare constitutional in 2012 remains intact.
Pending the outcome of the appeal, the ACA continues to be the law of the land.
Trump caused a stir in March when, reportedly over Azar’s objections, he told the Justice Department to file a brief with the appellate court opposing the entire Affordable Care Act. He said it would be replaced by a “really great” Republican health plan that would be better and less expensive than Obamacare but offered no details.
Having no such plan at hand, Republican senators balked. According to The New York Times, Senate Majority Leader Mitch McConnell, R-Ky., privately warned Trump that the Senate would not revisit health care in a comprehensive way until after the 2020 elections.
This forced Trump to back down and guaranteed that health care will be a major issue in the 2020 election campaign, The Times said.
Democrats are jubilant at the prospect. Many of them believe the health care issue was the key to winning the House in the 2018 midterms.
But neither poor people in need of health care nor the states have the luxury of waiting for the next election.
In the states, the Trump administration has promoted plans that would allow small businesses to combine forces and offer cheaper health insurance plans that do not meet Obamacare standards.
The ACA requires mandatory coverage for 10 essential health benefits such as maternity care, prescription drugs and mental health treatment. It also guarantees, as a number of cut-rate plans do not, health insurance to those with prior medical conditions.
Health providers and insurers have warned that the cut-rate plans will be gobbled up by healthy consumers, leaving behind a sicker patient pool and driving up the costs of ACA plans.
In Washington on March 28, U.S. District Judge John D. Bates of the District of Columbia, an appointee of President George W. Bush, ruled that the administration’s efforts to avoid the requirements of Obamacare by allowing small businesses and self-employed persons to form associations and offer cut-rate plans were “clearly an end run around the ACA.”
It was a victory for l1 Democratic-led states and the District of Columbia, which had sued to prevent the plans from taking effect.
The ruling was celebrated by New York State Attorney General Letitia James, a Democrat whose state led the lawsuit.
“We are pleased that the District Court saw past the Trump administration’s transparent effort to sabotage our health-care system and gut these critical consumer protections in the service of its partisan agenda,” she said in a statement.
Bates’ ruling came the day after Boasberg’s ruling against Medicaid work requirements. Taken together, the two decisions constituted back-to-back body blows against the efforts to rewrite the nation’s health-care rules.
But the administration is not giving up. It has appealed Boasberg’s decision and could appeal the Bates decision. Even if the Boasberg decision stands, the Health & Human Services Department will have another opportunity to rewrite work requirements in Arkansas and Kentucky.
In the Bluegrass State, Republican Gov. Matt Bevin has threatened to scrap the entire Medicaid expansion if work requirements are eliminated, stripping coverage from nearly 500,000 people.
Boasberg commented on Bevin’s statement in his opinion, comparing it to the threat “of a gun to the head.”
“Kentucky, it now seems, has picked up that gun by threatening to de-expand Medicaid,” he wrote.
The saddest aspect about this protracted battle over health-care rules is that it’s almost entirely partisan, with neither side willing to make even small concessions.
But small breaks recently occurred in the partisan dike in Montana and Ohio.
Ohio Attorney General Dave Yost, a Republican, withdrew from the lawsuit filed by his fellow GOP attorneys general that seeks to declare Obamacare unconstitutional. He opposes the provision requiring people to have health insurance or pay a penalty but disagrees that it makes the entire law invalid.
Yost filed a friend-of-the-court brief with the 5th District Court urging that the law be upheld. Joining him, somewhat unexpectedly, was Montana Attorney General Tim Fox, a Republican who has described Obamacare as “a train wreck and a nightmare.”
Fox, who is running for re-election in 2020, nonetheless said it was important to protect more than 150,000 Montanans who have pre-existing medical conditions.
That’s what Obamacare will be doing until after the next election or until blocked by the courts.
— Lou Cannon, a Summerland resident, is a longtime national political writer and acclaimed presidential biographer. His most recent book — co-authored with his son, Carl — is Reagan’s Disciple: George W. Bush’s Troubled Quest for a Presidential Legacy. Cannon also is an editorial adviser to State Net Capitol Journal, which published this column originally. Click here to read previous columns. The opinions expressed are his own.
