‘What The Health?’ It’s Nerd Week

Podcast: KHN’s ‘What The Health?’ It’s Nerd Week

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The Trump administration this week issued the rules governing next year’s Affordable Care Act insurance marketplaces, and they make some potentially large changes that could result in higher premiums and fewer benefits.

Meanwhile, states are going different ways in addressing the health insurance markets in their states in response to the federal activity. And House Speaker Paul Ryan announced his retirement — leaving an intellectual void among House Republicans when it comes to health care.

This week’s panelists for KHN’s “What the Health?” are:

  • Julie Rovner of Kaiser Health News
  • Stephanie Armour of The Wall Street Journal
  • Sarah Kliff of Vox.com
  • Paige Winfield Cunningham of The Washington Post

Among the takeaways from this week’s podcast:

  • The federal rules for the ACA’s marketplaces could dramatically alter how state regulators determine what plan benefits must be covered.
  • Those rules also change some conditions allowing people to qualify for exemptions to the requirement to have coverage — and they make those exemptions retroactive to 2017. So, some people who opted not to buy insurance and paid a penalty for 2017 may be able to file for refunds from the government.
  • Insurance companies are concerned about a number of the new provisions, including those that might drive healthy consumers away from the marketplaces and alter how insurers are compensated for having unusually high numbers of expensive customers.
  • An announcement from the White House this week said the administration is hoping to extend the work requirements that some states are seeking for Medicaid to other safety-net programs.
  • California and Maryland are among the states looking at ways to shore up their individual insurance markets in light of the changes being made at the federal level.


Health Care and the 2018 Midterms, Attitudes Towards Proposed Changes to Medicaid



  • Medicaid continues to be seen favorably by a majority of the public (74 percent) and about half (52 percent) believe the Medicaid program is working well for most low-income people covered by the program.
  • When asked about proposed changes to the Medicaid program, attitudes are largely driven by party identification. A large majority of Democrats (84 percent) and most independents (64 percent) oppose lifetime limits for Medicaid benefits, while Republicans are more divided in their views with half (51 percent) believing Medicaid should only be available for a limited amount of time.

    Poll: Public split on whether adding work requirements for Medicaid beneficiaries aims at reducing spending (41%) or lifting people out of poverty (33%) 

  • Party identification also drives views on what individuals believe is the main reason behind some states imposing Medicaid work requirements. A larger share of Democrats and independents believe the main reason for these work requirements is to reduce government spending (42 percent and 45 percent, respectively) than believe it is to help lift people out of poverty (26 percent and 31 percent). On the other hand, a similar share of Republicans say it is to reduce government spending (40 percent) as say it is to help lift people out of poverty (42 percent). Individuals living in states pursuing Medicaid work requirements are also divided on the main reason for these limits, even when controlling for party identification.

    54% of the public now holds favorable views of the Affordable Care Act – the highest share in more than 80 tracking polls 

  • The February Kaiser Health Tracking Poll finds a slight increase in the share of the public who say they have a favorable view of the Affordable Care Act (ACA), from 50 percent in January 2018 to 54 percent this month. This is the highest level of favorability of the ACA measured in more than 80 Kaiser Health Tracking Polls since 2010. This change is largely driven by independents, with more than half (55 percent) now saying they have a favorable opinion of the law compared to 48 percent last month. Large majorities (83 percent) of Democrats continue to view the law favorably (including six in ten who now say they hold a “very favorable” view, up from 48 percent last month) while nearly eight in ten Republicans (78 percent) view the law unfavorably (unchanged from last month).
  • The majority of the public are either unaware that the ACA’s individual mandate has been repealed (40 percent) or are aware that it has been repealed but incorrectly think the requirement is not in effect in 2018 (21 percent). Few (13 percent) are aware the requirement has been repealed but is still in effect for 2018.
  • More than twice as many voters mention health care costs (22 percent) as mention repealing/opposing the ACA (7 percent) as the top health care issue they most want to hear 2018 candidates discuss in their campaigns. Health care costs are the top issue mentioned by Democratic voters (16 percent) and independent voters (25 percent), as well as one of the top issues mentioned by Republican voters (22 percent), followed by repealing or opposing the ACA (17 percent).

2018 Midterm Elections

With still a few months until the midterm elections are in full swing, the latest Kaiser Health Tracking Poll finds health care costs as the top health care issue mentioned by voters when asked what they want to hear 2018 candidates discuss. When asked to say in their own words what health care issue they most want to hear the candidates talk about during their upcoming campaigns, one-fifth (22 percent) of registered voters mention health care costs. This is followed by a series of other health care issues, such as Medicare/senior concerns (8 percent), repealing or opposition to the Affordable Care Act (7 percent), improve how health care is delivered (7 percent), increasing access/decreasing the number of uninsured (6 percent), or a single-payer system (5 percent). Health care costs is the top issue mentioned by Democratic voters (16 percent) and independent voters (25 percent), as well as one of the top issues mentioned by Republican voters (22 percent), followed by repealing or opposing the ACA (17 percent).

Figure 1: Health Care Costs Are Top Health Care Issue Voters Want 2018 Candidates to Talk About During Their Campaigns

Battleground Voters

Health care costs are also the top issue mentioned by voters living where there are competitive House, Senate, or Governor races. One-fourth (23 percent) of voters in areas with competitive elections mention health care costs when asked what health care issue they most want to hear candidates talk about. Fewer mention other health care issues such as improve how health care is delivered (9 percent) or increasing access/decreasing the number of uninsured (6 percent).

2018 Midterm Election Analysis

As part of Kaiser Family Foundation’s effort to examine the role of health care in the 2018 midterm elections, throughout the year we will be tracking the views of voters – paying special attention to those living in states or congressional districts in which both parties have a viable path to win the election. This group, referred to in our analysis as “voters in battlegrounds” is defined by the 2018 Senate, House, and Governor ratings provided by The Cook Political Report. Congressional and Governor races categorized as “toss-up” were included in this group. A complete list of the states and congressional districts included in the comparison group is available in Appendix A.

The Affordable Care Act

This month’s Kaiser Health Tracking Poll finds a slight increase in the share of the public who say they have a favorable view of the 2010 Affordable Care Act (ACA). The share of the public who say they hold a favorable view of the law has increased to 54 percent (from 50 percent in January 2018) while 42 percent currently say they hold an unfavorable view. This is the highest level of favorability of the ACA measured in more than 80 Kaiser Health Tracking Polls since 2010.  This change is largely driven by independents, with more than half (55 percent) now saying they have a favorable opinion of the law compared to 48 percent last month. Large majorities (83 percent) of Democrats continue to view the law favorably (including six in ten who now say they hold a “very favorable” view, up from 48 percent last month) while nearly eight in ten Republicans (78 percent) view the law unfavorably (unchanged from last month).

Figure 2: More of the Public Hold a Favorable View of the ACA

Public Awareness of the Repeal of the ACA’s Individual Mandate

The February Kaiser Health Tracking Poll finds a slight uptick (from 36 percent in January 2018 to 41 percent this month) in the share of the public who are aware that the ACA’s requirement that nearly all individuals have health insurance or else pay a fine, known commonly as the individual mandate, has been repealed. Yet, misunderstandings persist. The majority of the public (61 percent) are either unaware that this requirement has been repealed (40 percent) or are aware that it has been repealed but incorrectly think the requirement is not in effect in 2018 (21 percent of total). Few (13 percent) are aware the requirement has been repealed but is still in effect for 2018.

Figure 3: Confusion Remains on the Status of the ACA’s Individual Mandate


In recent months, President Trump’s administration has supported state efforts to make changes to their Medicaid programs, the government health insurance and long-term care program for low-income adults and children. Seven in ten Americans say they have ever had a connection to the Medicaid program either directly through their own health insurance coverage (32 percent) or their child being covered by the program (9 percent), or indirectly through a friend or family member covered by the program (29 percent).

Figure 4: Seven in Ten Americans Say They Have Ever Had A Connection to Medicaid

Majority of the Public Holds Favorable Views of Medicaid and Thinks the Program is Working Well

Overall, the majority of the public (74 percent) holds favorable views of Medicaid, including four in ten who have a “very favorable” view. About one-fifth of the public (21 percent) hold unfavorable views of the program. Unlike attitudes towards the ACA, opinions towards Medicaid are not drastically different among partisans and majorities across parties report favorable views. However, a larger share of Republicans do hold unfavorable views (29 percent) compared to independents (21 percent) or Democrats (13 percent).

Figure 5: Large Shares Across Parties Say They Have a Favorable Opinion of Medicaid

In addition, more believe the program is working well than not working well for most low-income people covered by the program. This holds true across partisans with about half saying the Medicaid program is “working well” and about one-third saying it is “not working well.”

Figure 6: Larger Shares Say Medicaid Is Currently Working Well for Most Low-Income People Covered by the Program

Support for Medicaid Expansion in Non-Expansion States

One of the major changes brought on by the ACA was the option for states to expand Medicaid to cover more low-income people. As of February 2018, 18 states have not expanded their Medicaid programs.

Figure 7: Status of Medicaid Expansion Among States

Among individuals living in states that have not expanded their Medicaid programs, most (56 percent) say they think their state should expand Medicaid to cover more low-income uninsured people while four in ten (37 percent) say their state should keep Medicaid as it is today. Slightly more than half of Republicans living in non-expansion states say their state should keep Medicaid as it is today (54 percent) while four in ten (39 percent) say their state should expand their Medicaid program. Majorities of Democrats (75 percent) and independents (57 percent) say their state should expand their Medicaid program.

Figure 8: Democrats and Independents Are More Likely to Want Their State to Expand Medicaid Than Republicans

Proposed Changes to Medicaid


In January, the Centers for Medicare and Medicaid Services (CMS) provided new guidance for Section 1115 waivers, which would allow states to impose work requirements for individuals to be covered by Medicaid benefits. As of February 21, CMS has approved work requirement waivers in two states (KY and IN) and eight other states have pending requests.1 When asked what they think the reasoning is behind these proposed changes to Medicaid, a larger share of the public (41 percent) believe the main reason is to reduce government spending by limiting the number of people on the program than say the main reason is to help lift people out of poverty (33 percent). There are differences among demographic groups with a larger share of Democrats and independents believing the main reason is to reduce government spending, while Republicans are more divided with similar shares saying the main reason is to lift people out of poverty (42 percent) as reduce government spending (40 percent).

Figure 9: Republicans Are Divided on the Main Reason Behind the Trump Administration Permitting Work Requirements

There are also differences between individuals living in states that have either filed a Medicaid waiver for a work requirement or have had a waiver approved and those living in states that do not have Medicaid work requirement waivers pending or approved.2 Individuals living in states with pending or approved Medicaid work requirements are divided on whether the main reason for these limits is to lift people out of poverty (37 percent) or reduce government spending (36 percent). This holds true even when controlling for other demographic variables such as party identification and income that may influence beliefs.

Figure 10: Those in States with Medicaid Work Requirements Are Divided on the Main Reason Behind Them


In addition to work requirement waivers, five states are currently seeking waivers from the Trump administration to impose Medicaid coverage limits. These “lifetime limits” would cap Medicaid health care benefits for non-disabled adults. When asked how they think Medicaid should work, two-thirds of the public say Medicaid should be available to low-income people for as long as they qualify, without a time limit, while one-third say it should only be available to low-income people for a limited amount of time in order to provide temporary help. The vast majority of Democrats (84 percent) and most independents (64 percent) say Medicaid should be available without lifetime limits, while Republicans are divided with similar shares saying they favor time limits (51 percent) as saying they do not favor such limits (47 percent). Seven in ten (71 percent) of individuals who have ever had a connection to Medicaid say they do not support lifetime limits compared to three in ten (28 percent) who say it should only be available for a limited amount of time in order to provide temporary help.

Figure 11: Majorities of Democrats and Independents Say Medicaid Should Be Available Without a Time Limit; Republicans Are Divided



The ACA at Eight: Resilient but Still at Risk


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It’s Obamacare’s birthday. After eight years of relentless pounding, the Affordable Care Act (ACA) is still the law of the land. Its resilience reflects the fundamental decency of the American people who — when faced with the reality of taking coverage away from millions of their neighbors — refused to let that happen. They filled town hall meetings, they flooded the corridors of Congress, and support for the law surged to its current 54 percent.

That is not to say that the law’s future is assured. As part of its recent tax reform legislation, Congress eliminated financial penalties for not having health insurance — the teeth of the so-called individual mandate. The Congressional Budget Office (CBO) predicts that this will raise health insurance premiums in individual private markets by an average of 10 percent, and 13 million Americans could lose their health insurance. If Congress fails to enact recent bipartisan market stabilization proposals, these numbers could go even higher.

The current administration is also using executive authority to weaken the law. The U.S. Department of Health and Human Services has encouraged states to impose a range of new restrictions on Medicaid recipients — work requirements, premiums, copays — that may reduce the number of poor and near-poor Americans who enroll in this program.

The administration has also proposed new rules that would allow health insurers to sell plans that evade the ACA’s standards regarding preexisting conditions and minimum benefits. For example, the administration would permit insurers to market short-term plans — coverage limited to a year in duration — without the requirement that they accept all comers, and with various restrictions on benefits. These cheaper, less generous plans would appeal to healthier individuals, who would then likely choose not to purchase the more expensive, comprehensive insurance sold in ACA marketplaces. Only sicker individuals would buy ACA plans, raising their costs and making them unaffordable to millions who have come to depend on them. The net effect is to add choices for healthy Americans, but reduce options for the sick.

Efforts to curtail the ACA will likely increase the number of Americans without insurance, now at a historic low of 14 percent of working-age adults, according to the Commonwealth Fund’s Affordable Care Act Tracking Survey. These efforts will also likely increase health disparities between states. A number of the restrictions sought by the administration will go into effect only if states embrace them. States must request waivers to limit Medicaid benefits. So far, only Republican-led states are doing so. Similarly, states have discretion about whether to permit the sale of short-term plans. Many blue states are considering banning or regulating them.

Despite these threats, however, fundamental elements of the ACA remain in effect. Federal financial assistance for purchase of health insurance in ACA marketplaces remains available for individuals with incomes below 400 percent of the federal poverty level. This is one reason why 11.8 million people had signed up for ACA plans through the marketplaces by the end of January. Federal support for states to expand Medicaid persists. Thirty-four states and the District of Columbia have done so, resulting in 15 million more beneficiaries of that program.

Recent legislative and executive restrictions on the ACA will not totally reverse these gains. Paradoxically, some states that refused previously to expand Medicaid may decide to do so now that they may be able to impose work requirements, premiums, and copays, and thus give expansion a conservative stamp. This could actually increase the total number of Americans with some Medicaid coverage.

In fact, the continuing struggle over the ACA fits a decades-old pattern of steady, if erratic, expansion of health insurance coverage in the United States. Since the creation of Medicare and Medicaid 53 years ago, the federal government has periodically extended insurance to new populations: the disabled, those with end-stage renal disease, children. The federal government also massively expanded Medicare benefits to cover drugs. Once provided, these benefits have proved politically difficult to peel back — in a recent poll, 92 percent of Americans said they felt all of us should have the right to health care.

What does this mean for the ACA? While it will not achieve all its supporters’ goals, it will survive, and provide a new foundation upon which Americans can build if they choose, as they have in the past, to help their vulnerable neighbors deal with the scourge of illness. To paraphrase Martin Luther King, one might even say that the arc of history is long, but it bends toward health coverage.


With Some Republican Support, Virginia Edges Closer To Medicaid Expansion

With Some Republican Support, Virginia Edges Closer To Medicaid Expansion

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Virginia is among 18 states that have not expanded Medicaid under the Affordable Care Act. But this year, the state legislature is closer to enacting expansion than it has been in the past, and the issue will be the sticking point as the legislature goes into a special session next month to hash out its budget.

Republican Del. Barry Knight from the Virginia Beach area calls it “the 800-pound gorilla in the room.” He’s one of more than a dozen Republicans who voted to include Medicaid expansion in the House budget — along with a work requirement — this year.

It’s a big shift in the House position on the issue and comes after 15 seats flipped to Democrats in the so-called blue wave of last November’s election, which also saw the election of Democratic Gov. Ralph Northam.

“On the big-picture issues, I think it was a reawakening and a call to look at things from a different perspective,” said Republican Del. Chris Peace, from the Richmond area, who also voted in favor of expansion.

A December poll showed that over 80 percent of likely Virginia voters support an expansion.

“I think the House heard that message, loud and clear. I think the Senate still needs to listen a little bit,” Northam said.

The state Senate still has a strong bulwark against expansion, led by Senate Majority Leader Tommy Norment, who represents the Tidewater area in southeastern Virginia. Norment has come out against the House Republicans who want to expand. He reminds them that, despite a slim margin, Republicans are still in charge and could stop Medicaid expansion.

“I do think that the House of Delegates is waiting for that moment of lucidity and epiphany to realize that their majority is 51 to 49,” Norment said.

But opposition to President Donald Trump has energized Democratic voters, said Bob Holsworth, a former political science professor at Virginia Commonwealth University. He said he thinks expansion has a greater chance this year.

It could pass in the Senate, he said, because of a potential wildcard: Republican Sen. Emmett Hanger, from mostly rural central Virginia. Hanger has expressed support for some form of Medicaid expansion, and has a track record of voting independently, said Holsworth.

“What Hanger has said that’s very interesting … is that if he decides to support some version of Medicaid expansion, he says, ‘There are a number of other Republicans who are going to go over with me,’” said Holsworth.

However, Hanger said he isn’t happy about a tax on hospitals that has been incorporated into the House’s budget to help pay for the state’s share of expansion costs. The tax accounts for about three-quarters of the over $400 million Medicaid-related gulf between House and Senate budgets.

If legislators don’t come up with a budget that includes Medicaid expansion, Northam has a Plan B. He said he’ll introduce an amendment to add it back into the budget. In the amendment process, the lieutenant governor, Democrat Justin Fairfax, gets a vote if the Senate ties. Fairfax said he’d be happy to vote to expand coverage to up to 400,000 low-income Virginians.

“There are so many people that we can help, and we have the means to do it if we expand Medicaid. We just have to have the political will to do it,” Fairfax said.

Medicaid expansion in Virginia would especially benefit low-income adults without children.

“An adult who does not have children can have zero income — can be totally impoverished — and they cannot get Medicaid,” said Jill Hanken with the Virginia Poverty Law Center.

And a family of three with a total income of about $10,000 doesn’t qualify for Medicaid, she said.

“It’s hard to explain to them that they don’t have a choice, they’re not eligible for Medicaid,” she said, and they’re not eligible for subsidies for insurance on the exchange, so health insurance is out of reach. “And the reason is because Virginia hasn’t expanded Medicaid,” she said.

The special session begins April 11. The state needs a budget agreement by June 30 to prevent a government shutdown.

Will Federal Courts Uphold Trump Administration Medicaid Waiver Approvals?


Court decisions are likely to have an enormous impact on the future of the Medicaid program. On January 12, the Centers for Medicare and Medicaid Services (CMS) announced approval of a Medicaid demonstration waiver in Kentucky incorporating unprecedented restrictions on Medicaid eligibility for adults. These restrictions have been summarized by Sara Rosenbaum on Health Affairs Blog in the context of a powerful review of Medicaid demonstration law and policy. Kentucky’s new waiver includes not only a highly publicized “work/community engagement” requirement, but additional elements new to Medicaid including lockouts for beneficiaries who do not complete the annual renewal process or who fail to report changes in income.

Twelve days after the CMS approval announcement, the Kentucky Equal Justice Center, the Southern Poverty Law Center, and the National Health Law Program filed suit to stop the waiver in U.S. District Court for the District of Columbia, representing 15 Medicaid beneficiaries in Kentucky. Similar lawsuits are virtually certain as Medicaid waivers imposing new coverage and benefits restrictions on adults are approved in Indiana and likely other states.

Why The Current Round Of 1115 Waivers Are Different

As noted by Sara RosenbaumNicholas Bagley, and others, there is a limited history of federal lawsuits challenging Medicaid section 1115 demonstrations. But it is important to note the reason there have been few of these legal challenges: until 2018, over its 50-plus year history, Medicaid waiver authority was almost exclusively used to expand Medicaid eligibility and benefits rather than to restrict them, or to try a different approach to delivering existing benefits. When I oversaw Medicaid 1115 waiver review from 2013 to early 2017, the Obama administration agreed to try a variety of conservative ideas under Medicaid waiver authority for the Affordable Care Act (ACA) adult expansion population. But each of these ideas was tied into a good faith hypothesis about potential improved access or benefits within the Medicaid program. Premiums were to be tested as an alternative to cost-sharing in some states or in combined premium/cost-sharing approaches that sought to encourage and incentivize healthy behaviors; private marketplace plan networks were to be tested and evaluated as an alternative to traditional Medicaid providers; the impact of the Non-Emergency Medical Transportation benefit on unmet need would be measured closely to see if eliminating the benefit helped or hurt self-reported access to care.

The approvals in Kentucky and Indiana, and possible pending approvals in other states, base their legal claim to be promoting the objectives of the Medicaid program on a far more brazen and cynical premise. The waiver approvals assert that taking away Medicaid from statutorily eligible individuals can act as an incentive that ultimately improves health: either by forcing the beneficiary to get a job to stay insured in the case of work requirements, or by “educating beneficiaries on enrollment requirements” in the case of lockouts from eligibility for beneficiaries who fail to complete an annual renewal or inform the state of income changes.

Because the hypothesized Medicaid objectives are so dubious, a lot more than these specific waiver requests rests on the plaintiffs’ case in these states. At risk are not only specific Medicaid eligibility principles, but the entire statutory enterprise of congressional legislation of mandatory Medicaid eligibility or benefits of any kind. Consider what it would mean for Medicaid law were the justifications upheld: if waivers can overturn congressional Medicaid eligibility guarantees and claim to promote Medicaid objectives because Medicaid itself is a barrier to health, or because cutting off eligibility is a way to teach people about private insurance or enforce compliance with new extra-statutory eligibility requirements, then there is no meaningful legal limit on state waivers of federal Medicaid eligibility law. Congress’s ability—in place since 1965 and upheld in hundreds of federal court decisions—to mandate that state Medicaid agencies cover specific categories of individuals for specific periods of time and with specific benefits will be subject to an extra-statutory waiver process in toto.

Will courts allow it anyway? After all, section 1115(a) defining the scope of the demonstration authority specifically references “the judgment of the Secretary”, suggesting executive branch latitude.

Will Courts Overturn Work Requirements?

But there are a number of important legal and contextual factors that point to court action to overturn these waiver approvals. First, the work requirement component of these waivers is a particularly blatant attempt to achieve under waiver authority what could not be achieved via statutory change. Both the House and primary Senate version of “repeal and replace” 2017 included state options to impose work requirements in Medicaid. These efforts—in a rather high-profile manner—failed to pass Congress. Courts will be considering the tactic of the executive branch trying to change the Medicaid program via demonstration waivers when it failed to change the law.

Second, the primary federal court precedent for judicial review of Medicaid section 1115 demonstrations sets a high bar for legal scrutiny. Although (as summarized by Nicholas Bagley) the courts historically authorized some restrictive state section 1115 waivers with regard to Aid to Families with Dependent Children (AFDC) cash welfare in the name of supporting transitions to independence, these decisions were tied to a statutory framework for the AFDC program that itself supported transitions to work as an explicit goal beginning in the 1960s. This is not true when it comes to Medicaid: Medicaid’s statutory framework is as an ongoing health insurance program, and it now covers 70 million people, many times the enrollment level in AFDC/Temporary Assistance for Needy Families (TANF) over its history. And the limited court challenges to Medicaid section 1115 waivers have had a high success rate, with courts insisting that not only meet the “promote Medicaid objectives” standard but that they meet an additional level of scrutiny regarding research or experimental value relative to the health policy literature. Strikingly, the court in Newton-Nations v. Betlach—the primary precedent for Medicaid waiver judicial review—approvingly cited expert testimony on the health policy literature as evidence for why further research on cost-sharing was not needed. If judges are citing literature reviews to question whether waiver hypotheses involve groundbreaking experiments, that does not indicate a high degree of judicial deference.

Third, we have had strong indications in the last year that federal courts are not working with an assumption of good faith in stated agency rationales, particularly when significant published information from Trump administration leaders contradicts those ostensible public rationales. Judicial skepticism has extended from presidential tweets cited as evidence of discriminatory intent in immigration cases, to asserting “invidious partisan intent” in drawing of voting districts. And the Trump administration has made abundantly clear that its reasons for supporting restrictions on adult Medicaid enrollment have nothing to do with health: CMS Administrator Seema Verma has repeatedly stated her broad opposition to Medicaid coverage of low-income non-disabled adults as such, and the Trump administration worked vigorously to undo the Medicaid expansion during the ACA repeal effort in Congress.

Fourth, the fact that states are pairing work requirement waivers with other extra-statutory restrictions on Medicaid eligibility undermines whatever health claims they are making regarding the work requirement. With the exception of Mississippi—a state with Medicaid income eligibility levels for adults that are so low virtually no employed adults qualify—every state that has proposed a work requirement has also proposed to waive Medicaid law in other ways to take away coverage. Kentucky’s and Indiana’s new “lockout” provisions that will bar people from Medicaid for six months if they fail to report a change in income or if they fail to submit an annual redetermination of eligibility will likely lead to dramatic reductions in Medicaid coverage, given the high rates of enrollment churn associated with Medicaid’s unique annual redetermination requirements. States that are trying to cut Medicaid coverage for adults in multiple ways and a federal Administration that opposes Medicaid coverage of non-disabled adults would appear to be attacking Medicaid coverage of adults any way they can. They will not make for persuasive exponents of the health benefits of work requirements.

The pending litigation will be the first time the courts have thoroughly defined the scope of executive branch section 1115 waiver authority in Medicaid. As a matter of law and policy, one way or another this important part of the Medicaid program and the American health system will likely be changed by the time the federal courts have completed their adjudication. Many thousands of lives will be at stake. But with multiple judicial imperatives at stake as well, there is good reason to expect that the courts will step in.


Hospital Impact—Medicaid on the chopping block in 2018


Filling out job application

Medicare and Medicaid have always been a “work in progress,” as they’ve evolved from entitlement programs for the elderly and the poor in the 1960s to the largest health insurers—public or private—in the nation.

Medicaid is the more controversial program of the two, as its original intent was to provide temporary, safety-net health coverage for the poor and not as a permanent entitlement. This issue has been politicized by both parties as of late with little attention paid to the impact that nonclinical determinants—such as genetics, socioeconomics, environment and lifestyle choices—have on healthcare outcomes and life expectancy.

Democrats support expanding Medicaid under the Affordable Care Act to every state for everyone within 138% of the federal poverty level. Republicans favor increasing beneficiary responsibilities to take greater control and responsibility over their own healthcare and are encouraging states to pursue waivers to experiment with different Medicaid models designed to optimize quality, drive down costs and enable beneficiaries to move toward greater economic self-sufficiency.

President Donald Trump’s proposed budget last May recommended $800 billion in Medicaid cuts as well as cuts in nutritional assistance ($192 billion) and welfare programs ($272 billion). With the passage of the Tax Cuts and Jobs Act adding $1 trillion to the federal deficit, Republicans are making cuts to Medicaid a priority for 2018.

The rise of work requirements

Last month, the Trump administration announced that it would grant states the right to impose work requirements for able-bodied Medicaid recipients. Pregnant women, full-time students, primary caretakers of children under 19, disabled adult dependents and frail elderly individuals would be exempt from these requirements.

There are many complex issues that arise from this proposal, including:

  • The likelihood that it will be challenged in federal court (as is already the case in Kentucky)
  • The impact that denial of coverage would have on healthcare costs with elimination of preventive healthcare services, treatment for opioid addiction and job restrictions for those with chronic addictions
  • The requirement that states would bear the burden of job training, child care, transportation to work sites and other administrative costs with limited resources.

Democrats responded that this proposal violates the Medicaid statute as well as the original intent of the state waiver program. They also pointed out that the majority of Medicaid beneficiaries who can work do work, and often carry more than one low-paying service job that does not permit them to afford commercial health insurance coverage.

Many Republican governors support the proposal, as they would like to see a greater number of Medicaid beneficiaries receive health insurance through an employer rather than through the state. Earlier this month, Kentucky became the first state to receive approval to impose job requirements as a part of its Medicaid program, followed in short order by Indiana.

Cost-sharing considerations

Another approach to reducing Medicaid costs is cost-sharing, which is already permitted under federal law. Like the job-requirement proposal, children, pregnant women and others are partially waived from this requirement with lower premiums and cost-sharing limits.

In addition, states may impose higher premiums and cost-sharing limits for the option to purchase brand as opposed to generic prescription drugs and the nonemergency use of emergency departments as determined by a medical screening exam under the Emergency Medical Treatment and Labor Act.

All about the execution

There is no question that the United States cannot sustain the current unfunded liabilities that include Medicaid, Medicare and Social Security. In addition, cuts to the Medicaid program are supported by a significant number of Americans. However, doing this successfully will be complicated by the fact that those receiving this coverage deeply appreciate its benefits and that many studies support the positive economic value of Medicaid expansion.

Imposing work requirements and cost-sharing on Medicaid beneficiaries will only work if the jobs available to them are not minimum-wage service jobs and provide employer-based insurance. Thus, the main question is: Can states invest in the infrastructure necessary to help get their most vulnerable populations on their feet in an economically meaningful way? Or is the intent to merely withhold healthcare services to compensate for federal and state budgets that have spiraled out of control?


How Trump may end up expanding Medicaid, whether he means to or not


Republican lawmakers in a half-dozen states are launching fresh efforts to expand Medicaid, the nation’s health insurance program for the poor, as party holdouts who had blocked the expansion say they’re now open to it because of Trump administration guidelines allowing states to impose new requirements that program recipients work to get benefits.

In Utah, a Republican legislator working with the GOP governor says he hopes to pass a Medicaid expansion plan with work requirements within the year. In Idaho, a conservative lawmaker who steadfastly opposed Medicaid expansion in the past says the new requirements make him more open to the idea. And in Wyoming, a Republican senator who previously opposed expansion — a key part of President Barack Obama’s health-care law — says he’s ready to take another look at fellow Republicans’ expansion efforts in his state.

Moderate Republicans in North Carolina, Virginia and Kansas are similarly renewing calls to take up Medicaid expansion, though it’s unclear if there will be quite enough conservative support or whether Democrats would consider voting in favor of work requirements.

If successful, though, the efforts could make hundreds of thousands of Americans newly eligible for health coverage, while also opening the door to Medicaid changes that could kick some current beneficiaries out of the program and reduce its benefits to recipients — broadening the program’s reach into red states but with a decidedly conservative bent.

The arguments for and against Medicaid work requirements

The Trump administration is calling Medicaid work requirements a positive “incentive” for beneficiaries, but critics say they’re a harmful double standard.

“All of a sudden, we’re seeing some flexibility that allows us to do it our way, and that gives it a much better chance,” said Wyoming state Sen. Ogden Driskill, a Republican who helped defeat Medicaid expansion in a close vote in 2015. “Without the heavy hand of the government forcing it down our throats, many of us will take a much deeper look at it.”

The Trump administration earlier this month said states could apply to add work requirements to their state Medicaid programs, a first in the program’s history. Ten states have already filed requests for such waivers, and the Trump administration has approved a Kentucky plan to add work requirements and premiums to its program.

The new Trump administration rules may also shake up the balance of power in state-level struggles over Medicaid expansion. Thirty-two states and the District have expanded Medicaid since the Affordable Care Act was enacted, giving health care to approximately 13 million additional people. (Maine voters approved a Medicaid expansion in a November ballot referendum, but it has not yet taken effect.)

The other 17 states are overwhelmingly GOP-dominated. In many, Democrats and some moderate Republicans repeatedly have attempted expansions, hoping to take advantage of federal funding available to provide health insurance for low-income patients. But they’ve seen their efforts thwarted by conservative lawmakers and governors, who argue that expansion would give health care to “able-bodied” Americans and explode state budgets.

Now, moderate Republicans hope to win over their conservative colleagues by packaging the expansion with work requirements or other limits on who is eligible for the program, under what circumstances and for how long.

Their chances of success vary widely depending on the state. In Utah, a Republican lawmaker who has opposed a more generous Medicaid expansion is working with a supportive governor and leaders in the state’s House and Senate on a version that would include work requirements.

Under the new rules, “we think that there may be a window of opportunity to revisit the idea of Medicaid expansion,” Utah Gov. Gary R. Herbert (R) said in a statement to The Washington Post. Utah has 46,000 residents who could gain insurance under Medicaid expansion, according to the Kaiser Family Foundation, although the plans being discussed would probably cover a lower number.

Utah state Rep. Robert M. Spendlove (R) is spearheading a plan to expand Medicaid that would impose work requirements on some residents. Spendlove has wanted to craft this kind of package for years, but says he was told by Obama administration officials that the federal government would stop an expansion proposal that included work requirements.

To make the changes, states would need a waiver from the Trump administration’s Department of Health and Human Services. For the first time, that option is available.

“I’m not Captain Ahab; I didn’t see the point in pursuing an expansion bill that wasn’t going to get approved,” said Utah’s Spendlove, adding that he is working with leadership in the state House and Senate on his proposal. “The importance of the Trump administration’s willingness to give states flexibility to manage their programs can’t be overstated.”

Kansas in 2017 came within three votes of overriding outgoing GOP Gov. Sam Brownback’s veto of a Medicaid expansion plan. Moderate Republicans are hoping work requirements would be enough to get the proposal over the finish line, but it’s unclear if Brownback’s replacement, Republican Jeff Colyer, would support a deal. “This gives us a great opportunity and something to run with,” said Republican state Sen. Barbara Bollier, who has tried pushing conservatives in her state to accept Medicaid expansion.

The Affordable Care Act sought to extend Medicaid to every American living on less than 133 percent of the federal poverty line, implementing a national standard to replace a system in which each state sets its own eligibility threshold. But the Supreme Court struck down that portion of the law, allowing states to decline the extension.

As a result, millions of residents in holdout states fall in the “Medicaid gap.” Their incomes are too high to qualify for Medicaid, but they make too little to meet the minimum threshold for federal insurance subsidies to help them buy private health insurance policies on Obamacare’s exchanges.

“It was a huge roadblock that we did not have the ability to get a waiver for work requirements,” said Idaho state Sen. Marv Hagedorn (R), who said he will talk with colleagues about potential vehicles for expansion. “I’m very optimistic now that the administration has done a 180 on that. We’ll see if we can make something happen for people we have in the gap population.”

In states where lawmakers have repeatedly battled over Medicaid, the proposals face an uphill climb.

In Virginia, where Democrats picked up more than a dozen seats in elections last fall and Republicans hold only a two-seat advantage in the state House and in the Senate, a moderate Republican is seeking a bipartisan deal to pair expansion with work requirements. But a spokesman for new Virginia Gov. Ralph Northam, a Democrat, said the governor does not support work requirements and that “very initial” conversations about expansion are ongoingwith GOP lawmakers about Medicaid expansion in 2018.

The odds may be even longer in North Carolina, where moderates are pushing to pair expansion with work requirements but even proponents are skeptical the legislature’s conservative bloc can be won over. Roy Cooper, the state’s Democratic governor, is “pleased that there is some movement” on Medicaid expansion, said spokeswoman Sadie Weiner, though she added that Cooper has concerns about work requirements.

Many Democrats share those concerns. While they’ve long sought expansion, the deals being pushed would require them to accept rules they say will cost thousands of poor Americans their insurance. Republican-led states ranging from Arizona to Indiana are asking for a range of changes aimed at reducing the generosity of the program, including new fees for emergency-room use, premium payments for the poor, and the loss of coverage for those who miss payments.

“Expanding does create the opportunity to cover more people, but if it’s done with things like work requirements, premiums and other similar policies we know reduce coverage, the gains won’t be as large,” said MaryBeth Musumeci, a Medicaid expert at Kaiser.

In other states, expanding Medicaid remains a non-starter for conservatives. Georgia Gov. Nathan Deal and South Dakota Gov. Dennis Daugaard, both Republicans, said through spokesmen that Medicaid expansion would not be on the table in their states.

“There will be state legislators who were previously skeptical of Medicaid expansion, but who now think they can get behind it,” said Akash Chougule, director of Americans for Prosperity, a right-leaning political advocacy group affiliated with the Koch brothers. “But for us, the fact remains that expanding eligibility will massively increase spending costs. That might be blunted a little bit by a work requirement, but we will continue to resist those calls to expand.”