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Thursday, February 27, 2014

Guest Blogger Associate Professor Laura Hermer: A Return to Hard Paternalism

Hermer1As I wrote in an earlier post, Pennsylvania is seeking to predicate an agreement to participate in the Affordable Care Act’s Medicaid expansion on receipt of a federal waiver that would allow the state require “able-bodied” members of its proposed Medicaid expansion population to be either employed or actively seeking work. A number of Missouri legislators are now making a similar, harsher proposal in a new expansion bill. HB 1901, co-sponsored by Reps. Torpey, Barnes, Grisamore, Hampton, Higdon, Molendorp, and Walker, would extend benefits to adults under the age of 65, but directs the department to “apply for a Section 1115 waiver to require workforce participation of individuals otherwise eligible for MO HealthNet such that eligible individuals who are not elderly, disabled, or medically frail shall provide proof of workforce participation. Individuals who fail to provide proof of workforce participation shall be deemed ineligible.”

While the provision is apparently intended to apply only to the expansion population, the language used to describe that population – “all individuals otherwise eligible for MO HealthNet” – renders that interpretation ambiguous. But regardless of its actual referent, work ought never to be an appropriate requirement to impose upon Medicaid beneficiaries. While not all uninsured individuals in the national expansion population work, most do. And employment may not be reasonably feasible for at least some of those who are unemployed, due to disability, caretaking responsibilities, or other issues.

One might argue that a work requirement ought not to be any hardship to those who in fact are employed. However, imposing a work requirement for Medicaid is offensive to all Medicaid beneficiaries. It assumes that, unlike those who have some other source of health coverage, Medicaid beneficiaries are lazy, freeloading, or irresponsible – that if only they lived their lives appropriately, they would be able to get coverage on their own through a respectable and more generously compensated job. It is akin to state laws requiring drug testing for cash welfare applicants. Even though at least one study found that a smaller percentage of welfare recipients in Florida tested positive for drugs than the general population, all welfare applicants are damned as suspected drug addicts through the requirement. The U.S. District Court for the Middle District of Florida recently struck down Florida’s drug test requirement for cash welfare applicants, holding it to impose an unconstitutional warrantless and suspicionless search. While obviously not constitutionally analogous, work requirements share a number of similar, spurious policy justifications, and as such should be rejected.

-Guest Blogger Associate Professor Laura Hermer

http://lawprofessors.typepad.com/healthlawprof_blog/2014/02/guest-blogger-associate-professor-laura-hermer--1.html

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