New Hampshire's Medicaid work requirement challenged in court

HARRIS MEYER  March 20, 2019

Three advocacy groups sued the Trump administration Wednesday to challenge New Hampshire's approved work requirement for Medicaid beneficiaries.

The lawsuit, filed on behalf of four named plaintiffs, said the administration is trying to "bypass the legislative process and act unilaterally to fundamentally transform Medicaid… threatening irreparable harm to the health and welfare of the poorest and most vulnerable in our country."

The CMS approved New Hampshire's Section 1115 waiver last year, and it includes a "community engagement" requirement for the nearly 50,000 low-income adults receiving coverage through the state's Affordable Care Act Medicaid expansion.

The suit also seeks to roll back CMS approval of the state's waiver to end the traditional 90-day retrospective eligibility for Medicaid coverage, which hurts hospitals financially.

The case has been assigned to U.S. District Judge James Boasberg in Washington, the same judge who heard oral arguments last week in similar lawsuits challenging CMS approval of Kentucky's and Arkansas' similar Medicaid work requirement waivers.

The CMS and Republican elected officials in all three states have argued the work requirement will improve the health and well-being of beneficiaries. But Boasberg, an Obama administration nominee, said during the oral argument: "This is not the purpose of Medicaid."

New Hampshire will start monitoring expansion enrollee's compliance with the community engagement requirements on June 1. People who don't report or don't meet the requirements will start losing coverage on Aug. 1.

The state has some of the toughest provisions of any of the nine state work requirement demonstrations approved by the CMS so far. It applies to low-income, non-disabled adults from ages 19 to 64 who are eligible for the program, including parents of children ages 6 and older.

The waiver requires beneficiaries to report at least 100 hours per month of work, job training, education or volunteer activities, compared to 80 hours in other states.

Beneficiaries will face suspension from Medicaid the month after failing to report the required level of community-engagement activities, rather than losing coverage only after repeated months of failure to comply, as in other states.

The state's waiver proposal would have allowed beneficiaries to "cure" a shortage of hours in one month by making those hours up in subsequent months. That's considered important because many low-wage workers have part-time and seasonal jobs with varying hours.

But the CMS revised that provision, and will not allow such cures over more than one month starting in May 2020, according to an analysis by the Center on Budget and Policy Priorities.

New Hampshire's Democratic lawmakers tried unsuccessfully this year to eliminate the work requirement, and now are seeking to modify it.

New Hampshire officials project that 37,000 of the 50,000 expansion enrollees will have to meet the reporting and work requirements or seek an exemption, while about 13,000 will qualify for automatic exemptions.

"This (CMS waiver) approval will not promote coverage, but will result in significant coverage losses," said Jane Perkins, legal director of the National Health Law Program and lead attorney for the plaintiffs. "That is the administration's goal, to weaken the Medicaid program and cull people whom it deems unworthy."

The office of New Hampshire Republican Gov. Chris Sununu, who supports the work requirement, blasted the new lawsuit.

"This is nothing more than a partisan national organization coming in and trying to undo a bipartisan agreement by New Hampshire lawmakers in the best interest of New Hampshire citizens," Sununu's spokesman said.

Last June, Judge Boasberg blocked the Kentucky work requirement program from starting, ruling that the CMS did not adequately consider the impact of the waiver on coverage losses, which the state had projected would be 95,000. He noted that the objective of the Medicaid law is to furnish coverage for medical and long-term care services.

Despite that ruling, Arkansas launched its work requirement program last year, and more than 18,000 expansion enrollees were dropped from coverage because they didn't meet the reporting requirements. Independent analysts said many Arkansans did not know about or understand the state's complicated reporting process.

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