160 Organizations Ask HHS To Withdraw Medicaid Work Requirement; Courts May Overturn Policy

NYAPRS Note: NYAPRS joined a broad array of national and state groups to urge the federal health agency to withdraw approval for state Medicaid work requirements. See the article and letter below, as well as a piece suggesting the courts may well overturn the policy. 

160 Organizations Ask HHS Secretary Alex Azar To Withdraw Medicaid Work Requirement

The policy would hinder healthcare access provided by Medicaid to those struggling with substance use and mental health disorders. 
By Susan Morse Senior Editor Healthcare Finance  February 19, 2018

Over 160 organizations, including many advocates for mental health and opioid use disorder, have written to Health and Human Services Secretary Alex Azar to protest the new federal policy imposing work requirements on Medicaid beneficiaries. 

The groups want Azar to withdraw the guidance on the work requirement that was issued by the Centers for Medicare and Medicaid Services on January 11. They also want the government to discontinue state waiver approvals that include work requirements. 

The policy would hinder healthcare access provided by Medicaid to individuals with chronic health conditions, especially those struggling with substance use disorders and mental health disorders, they told Azar. 

"This is deeply troubling given the devastating and escalating opioid overdose crisis that President Trump has designated as a national public health emergency," the letter said. 

CMS's policy is at odds with bipartisan efforts to curb the opioid crisis and to improve reentry from prisons and jails, it said. 

These beneficiaries would be subject to the work requirement because they don't satisfy the Social Security disability requirement for an exemption. 

The January CMS guidance requires able-bodied adults to work or be involved in community service to receive Medicaid benefits. On the same day, CMS approved a Medicaid demonstration waiver for work requirements in Kentucky. 

Within two weeks, three organizations representing 15 Medicaid beneficiaries in Kentucky filed a lawsuit to stop the waiver from moving forward. Future lawsuits are expected from other states that are also requesting waivers. 

Grant Smith, interim director of National Affairs at the Drug Policy Alliance said, "Medicaid currently covers three out of every ten individuals living with opioid use disorder and provides critical access to medication-assisted treatment and other forms of care that help reduce overdose and other forms of drug-related harm." 

Healthcare organizations putting their signature to the February 15 letter include the Addiction Policy Forum, AIDS United, the American Association on Health and Disability, the American Association of People with Disabilities, the American Association for the Treatment of Opioid Dependence, the Association for Ambulatory Behavioral Healthcare, the Center for Health Law and Policy Innovation, Center for Medicare Advocacy, Mental Health America, and more. 


160 National, State and Local Organizations Join to Oppose Medicaid Work Requirements

Leading Health Care, Civil Rights, Criminal Justice, Faith-Based, Housing and Disability Rights Advocates Say New CMS Policy Will Harm Individuals and Communities Impacted by the Opioid Crisis and Mass Incarceration
Nearly 1 in 3 adults have a criminal record that poses a barrier to finding employment
3 out of 10 people living with opioid use disorder rely on Medicaid 

February 15, 2018: 160 organizations, representing leading health care, disability rights, criminal justice, faith-based, housing and civil rights groups, today jointly announced their opposition to the new Centers for Medicare and Medicaid Services (CMS) policy to allow states to impose work requirements on Medicaid recipients. 

In the letter to recently confirmed Health and Human Services (HHS) Secretary Alex Azar, the 160 organizational signatories outline how the policy will have a significant and disproportionately harmful impact on individuals with chronic health conditions, especially those struggling with substance use disorders (SUDs) and mental health disorders, as well as those with conviction and arrest records. 

Gabrielle de la Guéronnière, Director of Policy at the Legal Action Center said, “CMS’s new policy cruelly punishes and stigmatizes low-income people – depriving them of the life-saving care that many need to become and remain healthy.” She adds, “The Administration has stated that stemming the opioid crisis and reforming the criminal justice system are key priorities; this new CMS policy is totally contrary to achieving both of those important goals.” 

The letter delineates numerous ways in which the new guidance provides insufficient protections for people with disabling conditions, noting that, “Many individuals may be caught in a bitter catch-22, where they cannot qualify for Medicaid because they do not have documentation of disability, but they cannot get their disability documented because they do not have health coverage.” 

The signatories also note that the CMS guidance fails to recognize the stigma, discrimination, and related legal and policy barriers to employment confronting people with criminal records. Over 70 million Americans, or nearly one in three U.S. adults, have an arrest or conviction record. With over 85 percent of employers conducting background checks, it is extremely challenging for people with records to secure employment or even engage in volunteer activities. Imposing work requirements on Medicaid will impair access to vital health care, making it even more difficult for formerly incarcerated people and others with criminal records to successfully reenter the community, and increasing both costs to the corrections system and rates of recidivism. 

The statement further warns that by allowing states to make it difficult for Americans to access vital SUD care through Medicaid, CMS will increase the devastating impact of the opioid epidemic nationwide, starting with some of the hardest hit jurisdictions, such as Kentucky. 

Speaking to the impact of the policy on people who need substance use disorder care, Grant Smith, Interim Director of National Affairs at the Drug Policy Alliance notes that, “Medicaid currently covers three out of every ten individuals living with opioid use disorder and provides critical access to medication-assisted treatment and other forms of care that help reduce overdose and other forms of drug-related harm. At a time when this country is facing an overdose crisis, we cannot afford to impose more barriers to lifesaving health care.” 

Elizabeth Lower-Basch, Director of Income and Work Supports at the Center on Law and Social Policy says, “This policy is cruel and contrary to the purpose of the Medicaid program: taking people’s healthcare away does not promote health.” She added, “Most people who have Medicaid and can work, are already working. And when people are not healthy or able to get needed medications, they are less likely to be able to work.” 

The groups signing on to the letter to Secretary Azar are: 
ADAP Advocacy Association (aaa+); Addiction Policy Forum; Advocacy Center of Louisiana; AIDS United; Alameda County Community Food Bank; American Association on Health and Disability; American Association of People with Disabilities; American Association for the Treatment of Opioid Dependence (AATOD); American Civil Liberties Union; American Federation of State, County & Municipal Employees (AFSCME); American Foundation for Suicide Prevention; American Group Psychotherapy Association; American Psychological Association; American Society of Addiction Medicine; Association for Ambulatory Behavioral Healthcare; Bailey House, Inc.; Board for Certification of Nutrition Specialists; Brooklyn Defender Services; CADA of Northwest Louisiana; California Consortium of Addiction Programs & Professionals; California Hepatitis Alliance; Caring Across Generations; Caring Ambassadors Program; CASES; Center for Civil Justice; Center for Employment Opportunities (CEO); Center for Health Law and Policy Innovation; Center for Law and Social Policy (CLASP); Center for Medicare Advocacy; Center for Public Representation; Charlotte Center for Legal Advocacy; CHOW Project; Coalition of Medication Assisted Treatment Providers and Advocates; Colorado Center on Law and Policy; Community Access National Network (CANN); Community Catalyst; Community Health Councils; Community Legal Services of Philadelphia; Community Oriented Correctional Health Services; Community Service Society; Connecticut Legal Services; Consumer Health First; C.O.R.E. Medical Clinic, Inc.; Council on Social Work Education; CURE (Citizens United for Rehabilitation of Errants); DC Coalition Against Domestic Violence; Desert AIDS Project; Disability Rights Arkansas; Disability Rights Wisconsin; Drug Policy Alliance; EAC Network (Empower Assist Care); EverThrive Illinois; Facing Addiction with NCADD; Faces & Voices of Recovery; FedCURE; First Focus; Florida Health Justice Project, Inc.; Food & Friends; Forward Justice; The Fortune Society; Friends of Recovery - New York; Futures Without Violence; God's Love We Deliver; Greater Hartford Legal Aid; Greenburger Center for Social and Criminal Justice; Harm Reduction Coalition; Health Law Advocates; Heartland Alliance; Hep Free Hawaii; Hepatitis C Support Project/HCV Advocate; HIV Medicine Association; Horizon Health Services; Hunger Free America; Illinois Association of Behavioral Health; The Joy Bus; JustLeadershipUSA; Katal Center for Health, Equity, and Justice; The Kennedy Forum; Kentucky Equal Justice Center; Kitchen Angels; Justice in Aging; Justice Consultants, LLC; Lakeshore Foundation; Law Foundation of Silicon Valley; Legal Action Center; The Legal Aid Society; Legal Council for Health Justice; Life Foundation; Live4Lall; Liver Health Connection; Maine Equal Justice Partners; MANNA (Metropolitan Area Neighborhood Nutrition Alliance); Massachusetts Law Reform Institute; McShin Foundation; Mental Health America; Mental Health Association in New York State, Inc. (MHANYS); Michigan Poverty Law Program; Minnesota Recovery Connection; Mississippi Center for Justice; NAACP; The National Alliance to Advance Adolescent Health; National Alliance on Mental Illness; NAMI-NYS; National Alliance of State & Territorial AIDS Directors; National Association of Addiction Treatment Providers; National Association of County Behavioral Health & Developmental Disability Directors; National Association for Rural Mental Health; 
National Association of Social Workers; National Center for Law and Economic Justice; National Coalition Against Domestic Violence; National Council on Alcoholism and Drug Dependence, Phoenix; National Council for Behavioral Health; National Council of Churches; National Disability Rights Network; National Employment Law Project; National Federation of Families for Children’s Mental Health; National Health Care for the Homeless Council; National Health Law Program; National HIRE Network; National Juvenile Justice Network; National LGBTQ Task Force; National Low Income Housing Coalition; National Organization for Women; The National Viral Hepatitis Roundtable; NC Justice Center; New Haven Legal Assistance Association; New York Association of Alcoholism and Substance Abuse Providers (ASAP); New York Association of Psychiatric Rehabilitation Services; New York Lawyers for the Public Interest; New York State Council for Community Behavioral Healthcare; Open Hands Legal Services; Osborne Association; Outreach Development Corp.; The Partnership for Drug Free Kids; PICO National Network; The Poverello Center, Inc.; Project Inform; Public Justice Center; Root and Rebound; Ryan White Medical Providers Coalition; Safer Foundation; Sargent Shriver National Center on Poverty Law; School Social Work Association of America; Sea Island Action Network, South Carolina; The Sentencing Project; Shatterproof; Society of General Internal Medicine; Southern Center for Human Rights; Southern Poverty Law Center; Students for Sensible Drug Policy; Tennessee Justice Center; Three Square Food Bank; Transitions Clinic Network; Treatment Action Group; Treatment Alternatives for Safe Communities (TASC)—Capital District, Inc.; Treatment Alternatives for Safe Communities (TASC) – Illinois; Treatment Communities of America; Virginia Poverty Law Center; and Western Center on Law & Poverty; New York Association of Psychiatric Rehabilitation Services

Established in 1973, the Legal Action Center is the only non-profit law and policy organization in the United States whose sole mission is to fight discrimination against people with histories of addiction, HIV/AIDS, or criminal records, and to advocate for sound public policies in these areas.

Why The Courts May Overturn Medicaid Work Requirements

By Leslie Small Fierce Healthcare February 16, 2018

This week, 160 advocacy organizations came out against Medicaid work requirements. 

With one lawsuit already challenging Medicaid work requirements in Kentucky and more possible in other states, health policy watchers have one burning question: What will the courts decide?

According to Eliot Fishman—who was the director of the State Demonstrations Group at the Centers for Medicare & Medicaid Services from 2013 until early 2017—there’s a good chance that judges will overturn those waiver approvals.

For one thing, the work requirement component of the waivers in question is a “particularly blatant attempt” to make changes to Medicaid that couldn’t be achieved through legislation, Fishman wrote in a Health Affairs blog post. He argued that the courts will likely take note of the fact that previous Affordable Care Act repeal-and-replace bills tried to impose work requirements in Medicaid.

Here are the other reasons Fishman thinks work requirements may not pass judicial scrutiny:

  • Past court challenges to Medicaid section 1115 waivers have had a high success rate. Not only have judges insisted that such waivers promote Medicaid objectives, but also that they provide research or experimental value.
  • Federal courts have been skeptical in the past year about “stated agency rationales” for certain policies, and the Trump administration has provided evidence that its reasons for supporting Medicaid enrollment restrictions have more to do with opposing Medicaid expansion than anything else.
  • With the exception of Mississippi, every state that has proposed a work requirement has also proposed other restrictions on Medicaid eligibility, such as lockout periods. This could make it appear they’re trying to pare down enrollment any way they can—rather than trying to improve beneficiaries’ health. 

In addition to Kentucky, Indiana has also had a waiver approved that allows it to impose work requirements on able-bodied beneficiaries, and eight other states have pending applications. To CMS Administrator Seema Verma, such policies are a lever to lift individuals out of poverty—and improve their health—by connecting them to employment or other community engagement activities. 

“We see people moving off of Medicaid as a good outcome," she has said.

Even so, criticism of the concept has been mounting. This week, 160 organizations, including the ACLU and Southern Poverty Law Center, announced their opposition in a letter (PDF) to Health and Human Services Secretary Alex Azar, saying work requirements “will have a significant and disproportionately harmful effect on individuals with chronic health conditions, especially those struggling with substance use disorders and mental health disorders, as well as those with conviction and arrest records.”