Expert Commentary on Medicaid Work Requirements and the Kentucky Decision

In blogs in Health Affairs and the Commonwealth Fund and an op-ed piece in the Wall Street Journal, as well as quoted comments in other news media, legal scholar and public health expert Sara Rosenbaum of the George Washington University’s Milken Institute School of Public Health offered insights into the intent behind and impacts of the Trump administration’s approval of plans by Kentucky and other states requiring low-income adults to work to qualify for Medicaid, as well as the judicial decision announced on June 29 that struck down Kentucky’s work requirements.

In a Health Affairs blog, Rosenbaum provides an in-depth analysis of the decision made by Judge James Boasberg of the United States District Court for the District of Columbia by considering it from the perspective of how a court understands judicial decisions. As she explains, “the decision is quite focused. The court did not hold that, as a matter of law, demonstrations imposing work requirements on Medicaid beneficiaries can never be lawfully conducted under section 1115 of the Social Security Act. Nor did Judge Boasberg dispute the Secretary’s assertions that work improves health or that improving health is a Medicaid objective. Instead, he concluded that the Secretary, in approving Kentucky’s work and community engagement proposal, failed to address the most salient factor: “whether Kentucky HEALTH would, in fact help the state furnish medical assistance to its citizens, a central objective of Medicaid.” In other words, the Secretary did not do the essential thing a Medicaid 1115 demonstration requires, namely, gauge its impact on Medicaid’s central objective of covering the poor.”

Rosenbaum’s shorter blog in the Commonwealth Fund focuses on three takeaway messages from Judge Boasberg’s ruling, including that it holds that “Medicaid’s transformation extended to all poor Americans the same rights that had previously been conferred only to certain subgroups. And, as such, they are entitled to the same safeguards, including protection against the arbitrary loss of coverage.” As she explains, a contested aspect of the debate surrounding the Affordable Care Act (ACA)’s Medicaid expansion population has been “that these individuals are somehow less worthy — and less deserving of program protections — than traditional populations.”

A second blog in the Commonwealth Fund discusses what Medicaid work requirements could mean for American Indians, Alaska Natives, and the Indian Health Service. Rosenbaum explains the special Medicaid protections applicable to American Indians and Alaska Natives that the administration is in danger of ignoring. These protections are traceable to treaty obligations and were created in recognition of these indigenous peoples’ unique health vulnerabilities.

Earlier in the week that the Kentucky decision was announced, Rosenbaum’s arguments against Medicaid work requirements ran in an op-ed article in the Wall Street Journal. “Medicaid work requirements are wrong, for three reasons. First, they are unnecessary. Second, they risk beneficiary health with virtually no gains. Third, they violate the both the letter and spirit of the Social Security Act,” Rosenbaum wrote, and the opinion piece (which is accessible only to WSJ subscribers) explained her reasoning in more detail. A companion piece by Robert Kaestner, a professor at the University of Illinois Institute of Government and Public Affairs and in the department of economics at the University of Illinois at Chicago, argued in favor of work requirements.

After Judge Boasberg’s decision was made, Vox asked Rosenbaum to comment on the threat by Kentucky Governor Matt Bevin to end Medicaid expansion if the courts block the state from putting work requirements in place. “If he tries to end coverage, there will be massive political backlash and much litigation under various theories to slow him down,” Rosenbaum said. Adding that there are “lots of potential legal arguments, beginning with the fact that they would need to redetermine eligibility under traditional rules for every single enrollee.”

Finally, in Axios, Rosenbaum commented on how Justice Anthony Kennedy’s decision to retire from the Supreme Court may impact Medicaid as a whole.  As the piece pointed out, many conservative lawyers and judges say private entities, such as health care providers, should not be able to sue over Medicaid’s coverage decision. If that view ultimately prevails, states could make much bigger cuts without the threat of a lawsuit.

Justice Kennedy “was willing to leave the courthouse doors open in Medicaid cases, whereas the conservative majority is willing to shut it — I mean, really slam it," Rosenbaum said. She pointed out that Kennedy dissented from a 1990 ruling that said providers could sue over their payment rates, and he subsequently voted to narrow their ability to sue. The court never closed the door entirely on the ability of private entities to sue over Medicaid coverage, despite a push to do so from conservatives like Justice Clarence Thomas and the late Antonin Scalia.

If the right to sue goes away, “it's certainly possible that a state would start hacking away at its [Medicaid] program. There would be no deterrence at all,” Rosenbaum said.