For a judicial ruling that potentially can be a lifesaver for thousands of Americans, last week’s decision by a federal judge that temporarily saves Medicaid accessibility for many residents of Arkansas and Kentucky flew under the radar.
For UC Berkeley law professor Stephen Sugarman, however, news that two rulings by Judge James E. Boasberg of the U.S. District Court for the District of Columbia — one blocks Kentucky from implementing requirements that some Medicaid recipients must work to access benefits, and the other stops Arkansas from continuing its program — is symbolically important and politically consequential.
The rulings may be appealed and, thus, may not stand, but Sugarman says, for now, this is a serious blow to the Trump administration’s effort to roll back the Affordable Care Act, aka Obamacare. Boasberg, an appointee of Barack Obama, was a housemate at Yale University of President Trump’s U.S. Supreme Court pick Brett Kavanaugh, with whom Boasberg is still close. Kavanaugh might get a chance to rule on Boasberg’s decision if the case gets appealed to the Supreme Court.
“This decision will force the administration to try other mechanisms to get to the same result,” Sugarman, the Roger J. Traynor Professor of Law, says. “They are doing what they can to undo the Affordable Care Act any way they can, and this is one more way. This administration feels it has a mandate from its core to undo anything that Obama did. There have been bills put forward and executive orders issued, and with each one they think, `Here’s a way to undo Medicaid expansion and Obamacare.’
“This is a reprise of a longstanding Republican vision that poor people are slackers and should be made to work one way or the other, and that they should be self-reliant. The philosophy is that if you aren’t trying, you should be denied health care.”
The first of the opinions released March 27, rejected Kentucky’s proposal for work requirements for the second time. The ruling concerning Arkansas, released concurrently, said that state’s current work requirement rules “cannot stand.” Both invalidate the permissions that the U.S. Department of Health and Human Services (HHS) gave those two states.
After writing that HHS had been “arbitrary and capricious” in its authorizations of the implementation of work requirements for Medicaid, Boasberg instructed that department to reconsider the application for an HHS waiver with more consideration, given the effect the rulings would have on the poor, who depend on the coverage. He wrote that he “cannot concur” that Medicaid law leaves HHS secretary Alex Azar “so unconstrained, nor that the states are so armed, to refashion the program Congress designed in any way they choose.”
Sugarman agrees, saying the reality is that the imposition of a work requirement for access to Medicaid is a way to disqualify many of the poorest people in the United States.
“Maybe Medicaid applicants won’t get the paperwork done, or they won’t get enough job interviews, or they’ll miss a deadline,” Sugarman says. “It will always be something. This is always true. As a result, people will be sanctioned. Sometimes, it will be their fault. Sometimes, it won’t be. Sometimes, it will just part of being poor and having a tough life.
“Some people conceivably could be pushed into jobs where they are no longer eligible for Medicaid, but that won’t happen much. History shows that most people who lose the Medicaid benefit get sanctioned off benefits.”
Those pushing for Medicaid work requirements are far from defeated. On the same Wednesday that these two rulings came down, HHS gave permission for a third state, Utah, to impose work restrictions.
“On the same day, the secretary granted a waiver to Utah on the same basis,” Sugarman says. “Utah’s application for the waiver was granted on the same arguments (that the Boasberg ruling denied). The arguments from Utah were that the requirement creates financial independence, which the judge’s ruling said `no’ to.”
Sugarman says the Boasberg rulings would be major if neither is overturned on appeal. And he expects appeals in both cases.
“One federal judge doesn’t make it the law of the land,” he says. “I imagine Arkansas and Kentucky, or whoever their representatives are, will appeal. It will go before the (U.S.) Court of Appeals, and who knows what they will say.
“This is not a self-evident ruling, even though, in my mind, there’s no question that the judge has made the right decision. It’s well argued, but at the same time, the government usually has a fair amount of discretion in giving out waivers. The questions are, `How far can you deviate from the central goals of the plan and still get a waiver?’ and `When is it too much?’”
Medicaid-eligible residents of Kentucky, in particular, cannot afford to take too much solace in the Boasberg ruling concerning their state. Kentucky Gov. Matt Bevin’s administration has taken the position that, if it doesn’t get its way in the courts, the state will simply withdraw from the Affordable Care Act’s expansion of Medicaid coverage altogether.
Kentucky opted into Medicaid expansion in 2014, when the federal government paid 100 percent of the cost. The percentage covered in 2019 is 93 percent, and it will level off at 90 percent in 2020 and beyond. That money notwithstanding, Kentucky officials say the state can’t afford to cover all Kentuckians who would be eligible under expansion.
“Kentucky takes the position that, if a waiver isn’t granted, they will repeal the expansion,” Sugarman says. “They say `We can’t afford to have everybody on Medicaid, and if you don’t grant us the waiver, then we’ll repeal the expansion, that we’d rather take nothing than bankroll everyone.’ And Utah is saying the same thing.”
Underlying the Medicaid work requirement fight is the bigger picture of national health insurance. It’s a major political fight heading into the 2020 presidential election, pitting those who see health care as a human right against those who don’t.
Beyond that is the reality that people denied Medicaid who don’t have health care frequently head to hospitals in times of emergency.
“What it will mean is that these people will show up at the hospital anyway for care,” Sugarman says. “They would have to be treated as charity patients at the county hospital. It’s not clear how this can play out in a socially coherent way. Some people will stop going to the doctor for regular care, then they will go to the emergency room when things get bad. That’s expensive, much more expensive.
“And then, there are homeless people. There are a lot of those cases. And if you think (that) if you cut off their aid, they will disappear, you are wrong. But there are people out there who think this way, either ideologically or vindictively.”
Sugarman says the decision-makers at HHS have generous health care, and that the health care accorded to members of Congress is better still. He’d like to see them spread some of that around. And he’d like legislatures in the 14 states that haven’t applied for Medicaid expansion to get on board.
“It’s distressing that some states have not gone in for Medicaid expansion, even though the federal government is willing to pay a huge part of the tab,” he says. “Sometimes, it’s a race issue or sometimes, a class issue. There are too many people without health care.”