Medicaid work requirements have been struck down by a federal court four times since June 2018, but a top healthcare official for the Trump administration once again defended the Medicaid policy and the Centers for Medicare and Medicaid Services' review process for states' work requirements waivers.
CMS Administrator Seema Verma was adamant that the agency did not overlook the risk of coverage loss for Medicaid recipients. This argument was at the core of all four rulings from the U.S. District Court for the District of Columbia, which determined that work requirements violate the principles of Medicaid.
Verma told reporters Aug. 15 that the agency's approval and review process for states' work requirements waivers has slowed down due to recent litigation. However, she said it is still a "strong priority" that states have the flexibility to implement policies they need to "help people rise out of poverty," which is Verma's and other supporters' standard defense of the rules.
Medicaid is the health insurance program for low-income people and is jointly run by states and the federal government. Work requirements mandate that Medicaid recipients work or participate in activities such as school or volunteering for a set number of hours per month in exchange for eligibility.
The policy has not been a traditional part of Medicaid but the Trump administration in early 2018 expressed support for state Medicaid directors who wanted to implement work requirements.
The policies have been accompanied by criticism and controversy primarily due to the over 18,000 people in Arkansas who lost coverage in 2018. New Hampshire, which was the most recent state to have its policy blocked, even suspended the program ahead of its July hearing because as many as 17,000 people were at risk of losing coverage in the first month the penalty was to be applied.
'Arbitrary and capricious'
Judge James Boasberg has ruled against states work requirements policies four times in just over 12 months — twice in Kentucky and once each in Arkansas and New Hampshire. In each ruling, Boasberg has pointed to the lack of oversight by the U.S. Department of Health and Human Services Secretary Alex Azar regarding the policies impact on beneficiaries.
The judge said in New Hampshire's ruling that while HHS acknowledged the coverage loss risk, the department's defenses were not enough.
"This and statements like it butter few parsnips," Boasberg wrote, because the agency did not properly analyze the full impact to New Hampshire Medicaid recipients. Therefore, Azar's failure to appropriately address the coverage loss risk is "arbitrary and capricious," according to the judge.
While HHS officially signs off on state waivers, CMS reviews and approves states' requests. The agency has approved waivers in six states — not including the waivers struck down in Kentucky, Arkansas and New Hampshire — and seven states have waivers pending with the agency.
Verma said CMS does not agree with Boasberg's rulings, specifically regarding the lack of oversight on how waivers would affect Medicaid recipients, and she pointed to the agency's appeals of his decisions.
CMS is appealing Boasberg's Arkansas and Kentucky decisions in the U.S. Court of Appeals for the District of Columbia Circuit. The trial is scheduled for Oct. 11.
'Mother may I'
Boasberg is not the only critic of CMS' review and approval process for state Medicaid waivers.
The Government Accountability Office released a report in May highlighting several issues with the agency's waiver process, including "significant gaps" in transparency that impacted the agency's evaluation process for section 1115 demonstrations, Medicaid waivers that allow states to adapt their Medicaid program.
The report determined that CMS approved waivers without obtaining state-level public comments or requiring information on how the changes would impact Medicaid beneficiaries.
The government watchdog specifically highlighted the agency's approval of work requirement waivers as an area where "states have proposed major changes" to Medicaid and CMS has approved the waivers "without a complete understanding of their impact."
Verma was questioned about state waivers several times Aug. 15, including how CMS is reviewing waivers. She emphasized multiple times that states need increased flexibility to effectively implement Medicaid programs tailored to their state's needs. Verma even referred to Medicaid as a "mother-may-I" program due to the increased level of oversight and control that the federal government has over it.