West Virginia & Kavanaugh Confirmation: Arkansas Lawsuit Raises Stakes

A new lawsuit argues that imposing work requirements in Medicaid is “threatening irreparable harm to the health and welfare of the poorest and most vulnerable in our country.”

One of West Virginian Together for Medicaid’s national allies, The National Health Law Program, filed the lawsuit against the Trump administration this week for approving work requirements in Arkansas. The lawsuit asserts that Medicaid work requirements are not within the Trump administration’s authority under the Medicaid statute without action from Congress. In June, a federal judge blocked similar Medicaid work requirements in Kentucky, the first court test for the Trump administration’s initiative.

It is likely that this issue will end up before the U.S. Supreme Court.  The Court will have to decide about the future of the Medicaid program and whether the President and the Executive branch alone – without action by Congress – can undermine the statutory purpose of Medicaid and add new eligibility restrictions to Medicaid.

If Brett Kavanaugh is confirmed as a new U.S. Supreme Court Justice, many consumer protections for Medicaid enrollees could be lost.  (See more about Judge Kavanaugh and the critical vote of Senator Manchin here and here.)

We worry that if our state moved in this direction, West Virginia Medicaid enrollees could be harmed by a work requirement.  Not for failing to work if they are deemed capable, but by simply failing to meet reporting requirements.

"However, since one in three Medicaid adults never use a computer or the internet and four in ten do not use email, many enrollees would face barriers in complying with work reporting requirements to maintain coverage," according to a new Kaiser Family Foundation brief

According to the West Virginia Department of Health and Human Resources (DHHR), 66% of adult and child Medicaid enrollees in WV are in families with a worker. They are servers in restaurants, home care workers, retail workers, child-care workers and others. Some enrolled in the Medicaid expansion don’t work for wages but take care of elderly parents or children.  Others are in school or looking for work or they are in-between jobs.  Still others have chronic health problems, a mental illness or substance abuse disorder that makes it difficult to work. Many of these workers have seasonal jobs or other types of employment with fluctuating hours and/or temporary lay-offs.

New data released by the state of Arkansas this week show Medicaid enrollees who are subject to the work requirement struggle to comply. The data show that those who must tell the state what they're doing to meet the requirement are overwhelmingly failing to do so. 

In July — the second month in which the work requirements were in effect — 12,722 people either failed to report their activities to the state or didn't meet the 80-hour-a-month requirement. 

The vast majority of those people — about 12,587 — didn't log on to the state's Medicaid website and report their activities. The remaining 135 people did report their activities but failed to meet the 80-hour threshold. 

West Virginians Together for Medicaid