Dying from Red Tape: Medicaid Work Requirements

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Dying from red tape? Most of us can relate to the feeling. “Cutting through all this bureaucracy is killing me!”

For some of the most vulnerable people with Medicaid, however, it can be literally true. That’s because work requirements and other bureaucratic obstacles imposed by states on their Medicaid populations are designed with one goal in mind: Make it so difficult to comply with the rules that hundreds of thousands of people lose their health care.

In 2017, congressional Republicans tried to gut traditional Medicaid and eliminate the Medicaid expansion in their bills to repeal the Affordable Care Act. When that failed, the Trump administration quickly switched to encouraging states to load up their Medicaid programs with so much red tape that eligible people would lose coverage.

Dressed up in rhetoric like “improv[ing] Medicaid enrollee health and well-being through incentivizing work and community engagement,” the true intent of these efforts is to make compliance with the rules so cumbersome that few can do it.

If that sounds too extreme, consider Kentucky, where far-right Governor Matt Bevin (R-KY) campaigned on repealing his state’s Medicaid expansion but quickly found full repeal too unpopular. His solution? Impose work requirements that his own administration predicted would force 95,000 people out of the program within five years.

Or consider Arkansas, the only state so far to start implementing a Medicaid work requirement. With only part of the requirement in effect, more than 18,000 people lost coverage in just six months.

Were the rules really designed to make people lose coverage? In a rural state where many lack internet or smart phones, work requirements could only be reported online… on a website that was offline for 10 hours every day.

Or consider Tennessee, where at least 128,000 children lost coverage in a two-year period even without work requirements because their parents couldn’t keep up with all of the required paperwork. Or consider Texas, where repeated, unnecessary income checks have “led to thousands of kids being abruptly kicked off the program — and data shows that many of those removals were in error,” according to the Texas Tribune.

Having successfully fought to save Medicaid from congressional attacks and proved the popularity of Medicaid expansion through ballot initiatives, advocates must not lose sight of the ways that conservatives are seeking to repeal Medicaid from the inside out.

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Killing Medicaid with Paperwork

In 2018, the New York Times reported on this phenomenon in an article titled, “Hate Paperwork? Medicaid Recipients Will Be Drowning in It.” The piece noted: “Anyone who has ever forgotten to pay a bill on time, or struggled to assemble all the necessary forms of identification before heading to the DMV, is likely to sympathize with how administrative hurdles can stymie someone. But these may be especially daunting for the poor, who tend to have less stable work schedules and less access to resources that can simplify compliance: reliable transportation, a bank account, internet access. … A few missed premiums or work filings could cost them their coverage, even if they continue to work the required number of hours.”

Politicians pushing for work requirements or other barriers to coverage are often quick to claim that their proposals would only impact “able-bodied adults,” while protecting children, pregnant women, or those too sick to work. But as the Times piece makes clear, everyone in the program is at risk of losing coverage if they fall behind in reporting on their hours worked or proving that they qualify for one of the exemptions.

Women are particularly vulnerable because they are more likely to be low-income, to depend on Medicaid for coverage, to work part-time or in jobs with irregular schedules, and to serve as unpaid caregivers for young children or elderly family members. The challenges for women of color facing institutional racism are even steeper. One 2017 study of work requirements in cash assistance programs found that states with higher concentrations of African Americans punished non-compliance more severely and that African Americans were more likely to be punished than their white peers, even when controlling for other factors.

The result? Millions of low-income women — including those who are already working, who are serving as unpaid caregivers, who have disabilities that prevent them from working, or who should qualify for an exemption — are at risk of losing their coverage simply because they can’t keep up with all the paperwork.

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Navigating the Maze: Why Work Requirements Aren’t About Work

Work requirements are just one way that states have proven creative in designing what the Times called “a broader obstacle course of administrative rules” to make their Medicaid programs impossible for many to navigate.

But work requirements are a particularly insidious way of killing Medicaid through bureaucracy because they sound innocent and poll well. What swing voter doesn’t want to encourage “able-bodied adults” to find work, especially when politicians claim (falsely) that the most vulnerable groups will be protected?

In reality, work requirements are a solution in search of a problem. The truth is, there are very few Medicaid beneficiaries who could be working but aren’t. As the Center on Budget and Policy Priorities notes, the overwhelming majority of adults with Medicaid already work, are too sick to work, are going to school, are taking care of family members, or are already actively looking for work and can’t find it.

Work requirements won’t change those circumstances, but the administrative hurdles associated with trying to prove compliance will cause many of those people to lose coverage. And that’s the point.

Fighting in the Courts, Fighting in Congress

Right now, health advocates are fighting these changes in the courts. And so far, we’ve had success.

The Trump administration — through the Center for Medicare and Medicaid Services (CMS) — has been approving state work requirements as “demonstration projects” using their waiver authority under Section 1115 of the Medicaid statute. But even 1115 waivers are subject to certain restrictions, most importantly that projects promote the objectives of the Medicaid Act to “furnish medical assistance.” As former CMS official Eliot Fishman explained:

"[W]aivers must meet a legal requirement that they try to strengthen the Medicaid program: by expanding coverage, improving care delivery, or helping safety net hospitals and other providers. But CMS’s [action] is directly opposed to the central Medicaid goal of covering low-income people. This is the first time in the 52-year history of the program that Medicaid waivers have been approved to reduce coverage instead of to expand it."

In assessing work requirement waivers granted to Kentucky, Arkansas, and New Hampshire, federal district court Judge James E. Boasberg ruled that CMS has “not adequately considered whether the program ‘would in fact help the state furnish medical assistance to its citizens, a central objective of Medicaid’” and concluded that the agency’s waiver approvals “cannot stand.”

As a result, no state has an active work requirement right now. But it’s likely that the cases will ultimately end up before the Supreme Court. And then, there’s no reason to believe that the Roberts Court will defend Medicaid.

There’s also no reason to believe that conservatives won’t push to include work requirements in the law itself. Before retiring in 2018, then-House Speaker Paul Ryan (R-WI) called for legislation to codify the ability of states to impose work requirements. Absent strong public pushback, his ideological successors are likely to pick up where he left off when they regain control of Congress.

What Can You Do?

Help us spread the message! Work requirements are particularly insidious because they sound reasonable even as their true intent is to make it so difficult to comply with the rules that even working people will lose their health care. You can help spread the word that work requirements have nothing to do with promoting work and everything to do with taking away care.

Let your state legislators know you oppose work requirements. Trump’s CMS has approved work requirements in 9 states as of September 2019: Arkansas, Kentucky, Indiana, New Hampshire, Arizona, Michigan, Ohio, Utah, and Wisconsin. An additional 8 states — Alabama, Mississippi, Montana, Oklahoma, South Carolina, South Dakota, Tennessee, and Virginia — have work requirement proposals pending with CMS.

But even in “blue states,” we can’t take opposition to work requirements for granted as legislators and governors look to cut costs.

You can use our social media “badges” to help spread the word.

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Sarah Christopherson, MA, is the Legislative Director for the social justice campaign, Americans for Tax Fairness, and the NWHN’s former Policy Advocacy Director. Her 10 years working for Congress and her deep knowledge of health policy and consumer protection make her the NWHN’s issue area expert on federal health reform implementation and defense, drug and device safety and efficacy, and sexual and reproductive health.

Read more from Sarah Christopherson.