Thursday, March 28, 2019

Court Strikes Fed's Approval of States' Medicaid Work Requirements (again, and again)

Judge James E. Boasberg (D.D.C.) ruled in two separate cases that the Department of Health and Human Services's approval of work requirements for Medicaid by Arkansas and Kentucky violated the Administrative Procedure Act. The rulings send the cases back to HHS for further consideration of the requirements.

The rulings are a victory for opponents of Medicaid work requirements--at least for now. It is possible that the states and HHS on remand could come up with better reasons for imposing the requirements (reasons more consistent with the purposes of the Medicaid program, that is), or that Congress could change the Medicaid program to authorize work requirements. But barring some more Medicaid-consistent reason for the requirements (or a congressional change, which seems unlikely, at best), it doesn't look like this court will approve any HHS authorization for these states' work requirements.

Just to be clear: the ruling does not halt all work requirements, though. It just says that HHS has to reconsider its approval of work requirements for these two states. The Trump Administration has approved eight states for work requirements, and seven other states are in the pipeline.

One ruling says that HHS's approval of Arkansas's work-requirement "demonstration project" violated the APA, because HHS failed to consider that the requirement would lead a substantial number of Arkansas residents to be disenrolled from Medicaid. That's a problem, because the core purpose of Medicaid is to "furnish medical assistance" to those who cannot afford it. If the work requirement cuts recipients off, then, said the court, it fails to advance the core purpose of the Medicaid program. And because HHS didn't consider that in approving the project, HHS's approval was arbitrary and capricious in violation of the APA.

The court's reasoning in the Arkansas case follows its same reasoning in the Kentucky case from last summer. The court sent the Kentucky case back to HHS for further consideration, and the second recent ruling deals with HHS's approval of Kentucky's work requirement after reconsideration.

In that second case, round 2 of the Kentucky challenge, HHS advanced a new argument on remand: If Kentucky's work requirement isn't approved, then Kentucky would have to un-expand its Medicaid expansion (under the Affordable Care Act) in order to ensure that its Medicaid program remained viable. The un-expansion would result in even more recipients being thrown off Medicaid than the work requirement. In other words, Kentucky threatened to un-expand Medicaid (and cut even more people off) if HHS didn't approve the work requirement.

The court had none of it: "The Court cannot concur that the Medicaid Act leaves the Secretary so unconstrained, nor that the states are so armed to refashion the program Congress designed in any way they choose." The court sent Kentucky's request back to HHS for reconsideration, again.

Next step in both cases: HHS reconsideration, yet again. In the meantime, the states can't impose their proposed work requirements.

https://lawprofessors.typepad.com/conlaw/2019/03/court-strikes-feds-approval-of-states-medicaid-work-requirements-again-and-again.html

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