Work requirement programs have become a centerpiece of the Trump administration's plans for Medicaid, but two Democratic lawmakers are urging HHS and CMS to consider how the new rules will affect low-income families.
Certain implementations of work requirements could make it impossible for some families to obtain health coverage, wrote Reps. Elijah Cummings, D-Md., and Raja Krishnamoorthi, D-Ill., in a letter to HHS Secretary Alex Azar and CMS Administrator Seema Verma. And that could be particularly burdensome for black families.
"The disproportionate impact that these coverage losses will have on black mothers in particular raises serious concerns that may implicate Title VI of the Civil Rights Act, which prohibits discrimination ... in programs and activities receiving federal financial assistance," the congressmen wrote (PDF).
Chief among the lawmakers' concerns are states seeking to implement work requirements without simultaneously expanding Medicaid eligibility. In such states, there's a concern that any job that would meet the work requirements would place that person out of Medicaid eligibility. This could force families into a donut hole where they qualify for neither Medicaid nor ACA subsidies.
"Mississippi has proposed requiring Medicaid beneficiaries in the state to work at least 20 hours per week. A mother working 20 hours per week at minimum wage in Mississippi would earn $580 per month. This would make her ineligible for Medicaid because her monthly earnings would exceed the state's threshold for Medicaid eligibility by $113. In addition, since this mother would earn so little, she would not qualify for the Affordable Care Act's premium tax credits, which are designed to help individuals who do not qualify for Medicaid afford insurance on the private market," they wrote.
The congressmen asked CMS to turn over seven pieces of evidence demonstrating how the administration intended to ensure coverage for those projected to lose it as a result of work requirements.
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Work requirements are the latest healthcare controversy to reach the courts. In June, a federal judge struck down a Medicaid waiver in Kentucky that allowed for the requirements, arguing that CMS "never adequately considered whether Kentucky HEALTH would in fact help the state furnish medical assistance to its citizens, a central objective of Medicaid."
However, that decision has yet to be cemented into precedent, if it ever does. Three other states—Arkansas, New Hampshire and Indiana—are still moving forward with their work requirement programs. As Cummings and Krishnamoorthi noted in their letter, 11 states have nevertheless submitted proposals to implement work requirements. Two others, South Carolina and Oklahoma, are in the process of drafting their proposals.
HHS Secretary Alex Azar has said the agency is "undeterred' by the Kentucky ruling and has told staffers evaluating proposals that their "mantra should be common sense."
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Critics of work requirement arrangements say the regulations are cruel and counterproductive. Not only are the measures punitive to low-income populations, they make Medicaid harder—and more expensive—to administrate.
“There is a reason why no previous administration has approved the severe provisions Kentucky is so bent on pressing," said senior attorney Catherine McKee with the National Health Law Program, one of the organizations that brought the lawsuit against Kentucky's program. "They punish the very populations Medicaid is intended to protect."
That organization is weighing whether to bring similar lawsuits in the other states where Medicaid work requirements have been implemented. But if another federal court rules differently, that would make the subject good fodder for the Supreme Court.