CMS Work Requirements in 1115 Medicaid Waivers
On January 11, 2018, CMS released guidance paving the way for states to obtain waivers to institute work requirements as a condition for Medicaid eligibility, a sharp deviation from prior CMS policy. This shift does not come as a surprise, however, given the Administration’s commitment to increasing state flexibility in Medicaid and vocal support for fostering “economic self-sufficiency” and reducing dependence on the program. The guidance describes various acceptable forms of “community engagement” requirements states may seek to impose, including “skills training, education, job search, volunteering, or caregiving.” Currently, eight states have work requirement initiatives pending CMS approval. Kentucky was the first state to receive CMS approval, granted the day after the guidance was released and already subject to a legal challenge.
Though the agency has been vague on the specific populations it will allow states to include in these initiatives, the January guidance focuses on able-bodied, working age adults. The extent to which CMS will draw a firm line protecting particular subpopulations from the requirements remains to be seen. But the agency’s pointed distinction between able-bodied adults and other beneficiaries (such as pregnant women, children, disabled individuals and the elderly) reflects an underlying philosophical view that extension of coverage to this population is “a clear departure from the core, historical mission of the program”—a mission to which some would like to see the program return. This philosophy was prominently in view in the 2012 Supreme Court case NFIB v. Sebelius. In that landmark case, opponents of Medicaid expansion successfully argued that by requiring states to cover an entirely new population (able-bodied adults), the Affordable Care Act had so deviated from the original purpose of the program as to create a new and distinct program—one in which states could not be bound to participate.
Eligibility for Medicaid coverage has become increasingly complex as the program has evolved, with Congress regularly adding new categories of coverage for various subpopulations. To be sure, the new adult group added by the Affordable Care Act is by far the largest eligibility group. But it is not uniform. Viewing the members of this group through a monolithic lens could run the risk of exacerbating existing health care disparities. It has been repeatedly demonstrated that health and health care are deeply impacted by a broad range of social determinants. Those same factors—food insecurity, housing insecurity, lack of transportation, discrimination, and education, to name a few—also impact individuals’ ability to participate in the kinds of community engagement activities that will now be tied to Medicaid coverage. Individuals who struggle with homelessness, substance abuse, domestic violence, chronic disease or other disabling conditions that fall outside of the program’s definition of a “disability” will be similarly challenged to meet the new eligibility requirements. The result could be that the most vulnerable among the “able bodied adult” population are made more vulnerable, and health care disparities widen. And that, in turn, will impact those essential providers that disproportionately serve this population.