SEEMA VERMA: The administrator for the Centers for Medicare and Medicaid Services appeared in Little Rock on March 6 to grant Arkansas's waiver request.
On Friday, the Trump administration filed a motion to dismiss a federal lawsuit
attempting to stop Arkansas's first-of-its-kind Medicaid work requirement, which so far has ended health insurance for over 12,000 low-income, working-age adults in the state.
The nine plaintiffs suing the federal government
are beneficiaries of Arkansas Works — the state's version of Medicaid expansion — who are at risk of losing their coverage under the work rules. (Two of the plaintiffs were kicked off the program but have since had their insurance reinstated or are working to do so under an exemption process set up by the state.)
The defendants' memorandum, filed in U.S. District Court for the District of Columbia, asks federal Judge James Boasberg
to grant summary judgment to the Trump administration if the suit is not dismissed. The plaintiffs are suing the Trump administration — rather than Arkansas — because federal Medicaid authorities gave the go-ahead to Arkansas's proposal
to create the work requirement policy. However, Arkansas is an intervenor in the suit, and attorneys with the state filed their own motion for summary judgment
The plaintiffs say U.S. Health and Human Services Secretary Alex Azar
and Centers for Medicare and Medicaid Services (CMS) Administrator Seema Verma
overstepped their waiver authority under the federal Medicaid statute when granting Arkansas's request to create a work requirement earlier this year. The plaintiffs are asking Boasberg to enjoin the policy and are represented by Legal Aid of Arkansas, the National Health Law Program
and the Southern Poverty Law Center.
In Friday's filings, lawyers for the federal government argue that recent developments in a related federal case concerning Kentucky should cause the judge to reject the Arkansas plaintiffs' arguments.
The Trump administration granted a waiver to Kentucky in January authorizing a work requirement. But, before that state could get its program off the ground, a group of Medicaid beneficiaries sued. (They, too, are represented by the National Health Law Program and the Southern Poverty Law Center, among others.) Judge Boasberg blocked the Kentucky work requirement in June
, agreeing with the plaintiffs that federal Medicaid officials had not sufficiently consider the policy's impact on beneficiaries' insurance coverage when they approved Kentucky's proposed waiver. Rather than appeal Boasberg's decision, CMS reopened the public comment period on Kentucky's waiver, hoping to show that it was taking steps to carefully review the state's plan.
On Nov. 20, CMS issued a letter once again approving Kentucky's work requirement proposal
. The state could begin implementing the policy in April, the Trump administration said. The Kentucky plaintiffs are sure to challenge the re-approved waiver, which will likely force the judge to issue a broader ruling on the case in the coming months. In the meantime, CMS is trying to keep Arkansas's work requirement intact.
"Because the relevant features of the Arkansas project are not materially different from the measures that the Secretary addressed in the new Kentucky letter, there is no reason to require the Secretary to recite a similar explanation in the specific context of an Arkansas approval," the Friday motion said.
CMS has also approved proposals from Indiana, New Hampshire and
Wisconsin to create work requirement programs to be rolled out in 2019, and several other states have submitted similar waiver requests to CMS. The rationale for Medicaid work requirements is that promoting work activities will result in better health outcomes for beneficiaries, in part by encouraging them to move up the economic ladder. Critics argue that such requirements will hurt beneficiaries' health outcomes by taking away their insurance and blocking access to medical care.
Arkansas's policy has come under national scrutiny because it has resulted in the state terminating coverage for some 12,000 people each month for not reporting work hours. More losses are expected in December and in 2019,
if the policy isn't blocked by the court in the meantime.
On Tuesday, during a press briefing in Washington, CMS Administrator Verma defended the concept of work requirements when asked questions about the situation in Arkansas. However, she also said CMS was keeping a close eye on Arkansas's work rule and indicated the state may make changes moving forward. "I think you’re going to be hearing a lot more from Arkansas on their plans and what they’re going to do to strengthen the program," she said.
Verma was careful to draw a distinction between Medicaid work requirements in principle and their implementation in Arkansas. When asked by a reporter about whether the coverage losses suggested weaknesses in the state's system, she said it was important "to separate what’s going on in Arkansas, the policy, from the operations."
CMS continues to support work requirements as a means of "helping people rise out of poverty" and intends to keep granting permission to other states that want to pursue their own work rules, she added.
"I think it’s very early to draw conclusions from Arkansas. ... We’re in discussion with them to make sure that the implementation is going smoothly. We are looking closely at the people that have left the program to understand the reasons why they have left the program, and I think that’s going to give us a lot of lessons learned. It’s very possible that people have left the program because they have found a job, or they decided that they didn’t want coverage, or that they’re making a choice not to participate in the community engagement requirements," Verma said.
The work requirements are technically called "community engagement" because some activities other than work count towards fulfilling the monthly 80-hour quota, including school, volunteering and a limited number of job-search hours.
Verma's explanations for the recent coverage losses mirror those given in the past by Governor Hutchinson
and Arkansas Department of Human Services Director Cindy Gillespie
. But some beneficiaries have said they lost coverage for other reasons, such as being unaware of the requirement or being confused how to report their hours
. DHS requires people to report hours on a website
, rather than in person or by phone or mail, though it has also created a "registered reporter" workaround in which beneficiaries may relay their work information to a third party, such as an insurance agent. Not everyone is required to report: Certain workers are automatically assumed to be in compliance, and a variety of life situations may earn a person an exemption from reporting, though not necessarily automatically. (Most of the state's Medicaid beneficiaries are not subject to the requirement at all, including children, the elderly and the disabled.)
Audio of Verma's remarks
was made available online by the Association of Health Care Journalists, which sponsors a fellowship that supports this reporting project.
When asked on Friday whether Verma's comments should be taken to mean there are changes coming to Arkansas's work requirement implementation, a DHS spokeswoman said the state agency is staying in contact with federal authorities. "DHS takes feedback from stakeholders and the public seriously. And when we see that a possible issue may exist, we work to address it," agency spokeswoman Marci Manley said.
DHS has extended its call center hours after hearing complaints of long hold times and call-back wait times. Hours were previously 8 a.m. to 4:30 p.m.; they're now from 7 a.m. to 9 p.m. Manley also said:
This reporting is made possible in part by a yearlong fellowship sponsored by the Association of Health Care Journalists and supported by The Commonwealth Fund.
We continue to work to see how we can make sure that people know they can report their activities and reporting exemptions by phone by calling their insurance carriers at the numbers below:
- Arkansas BlueCross BlueShield: 1-800-800-4298
- AmBetter: 1-877-617-0390
- QualChoice: 1-866-838-9186
The registered reporter system to allow friends, family and other trusted individuals to be authorized to report on behalf of an enrollee is also a product of aiming to eliminate possible barriers for enrollees who might have challenges with operating a computer or internet access.
DHS is currently testing portal updates that simplify the student/education hour reporting process for full-time and part-time students and allowing them to report the hours of attendance once monthly rather than weekly. That change was due to, in part, to feedback from stakeholders and review of operations. Those portal updates are in the testing stage, with the goal of having it fully implemented prior to January 2019 when 19-29 year olds, which we believe will include a large population of students, will begin phasing into the requirement.