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A recently filed legal brief asserts that the Trump administrations’ approval of Medicaid programs in Kentucky and Arkansas that include work requirements are an effort to remake the system without legislative approval and could result in “irreparable harm to the health and welfare of tens of thousands of people.”

The brief was filed on behalf of Medicaid recipients who are fighting state and federal efforts to derail their success in U.S. District Court in March 2019. That’s when Judge James Boasberg decided to effectively strike down the Kentucky HEALTH and Arkansas Works programs on the same day.

In his rulings, Boasberg sided with Medicaid recipients in both states who had challenged U.S. Health and Human Services Sec. Alex Azar’s approval of the Kentucky and Arkansas programs. Each program includes requirements that eligible individuals complete and report 80 hours a month of work or “community engagement” activities to keep their benefits.

After Arkansas began implementing its program in June 2018, about 18,000 people lost their benefits. Kentucky HEALTH’s work requirement has yet to be implemented but is said to potentially jeopardize the coverage of some 95,000 people.

The legal brief, filed by Jane Perkins of the National Health Law Program to address both the Kentucky and Arkansas cases, asserts that Azar “approved a collection of restrictions with the purpose and effect” of slashing Medicaid coverage for eligible recipients while ignoring that the main objective of the Medicaid Act is to enable states to furnish medical assistance, rehabilitation and other services to people who can’t afford to do so themselves.

“In the end, there is no mystery about what the government is trying to accomplish,” according to the legal brief filed last month in the D.C. Circuit of the U.S. Court of Appeals.

Alex Azar
Alex Azar, secretary of the U.S. Department of Health and Human Services | Courtesy of HHS

President Donald Trump is a foe of the Affordable Care Act, and Kentucky Gov. Matt Bevin, Azar and U.S. Centers for Medicare and Medicaid Services Administrator Seema Verma all have made public statements about the need to transform Medicaid, the legal brief notes.

For example, “Secretary Azar noted that the Administration is ‘now overseeing the next great transformation in Medicaid, through our efforts to encourage work and other forms of community engagement,’ ” the brief says.

However, “transforming and restructuring the social safety net is a job for Congress, not the Secretary,” it adds.

Nevertheless, the Trump administration has approved Section 1115 waivers with work requirements in multiple states, including Indiana, and Sec. Azar “has made clear that the waivers are available to all comers,” according to the brief.

The Medicaid recipients contend that in approving Kentucky and Arkansas’ programs, Azar put forth spurious objectives, such as “strengthening workforce participation,” “improving health and wellness,” and “familiarizing beneficiaries with … the commercial market,” that are not in keeping with the law.

“Even if the Secretary had the authority to consider these alternative objectives, the administrative records in these cases do not allow this Court to bless his paper-thin reasoning and stunted decision-making process,” the Medicaid recipients argue.

What’s more, they say: “The Secretary ignored the wealth of record evidence setting forth why the projects will reduce coverage, harm health, and exacerbate financial instability, and therefore do not meet the Section 1115 requirements. As the district court correctly recognized, this ostrich-like adjudication is the very definition of arbitrary and capricious decision-making.”

Several groups, including the National Women’s Law Center, the American Academy of Pediatrics, the American Heart Association, the March of Dimes Foundation, Mental Health America and AARP have filed notices letting the Court of Appeals know that they plan to support the Medicaid recipients.

A brief filed by AARP and several other groups says, “The Federal Appellants exceeded their authority in approving Kentucky HEALTH.”

It goes on to say: “The State’s Section 1115 waiver would deliver a crushing blow to low-income Kentuckians, leaving tens of thousands without health care coverage. As that result flouts the objectives of the Medicaid program, this Court should affirm the district court’s decision.”

In earlier court records, both the state of Kentucky and the federal government liken Kentucky HEALTH work requirements to ones that already have been used by the Supplemental Nutrition Assistance Program (SNAP) and Temporary Assistance for Needy Families (TANF).

But the Medicaid recipients point out that “although Congress included work requirements in SNAP and TANF, it chose not to add them to Medicaid.”

Also, “despite the government’s attempt to cast Medicaid as just another ‘public welfare’ program … Medicaid is a fundamentally different program Congress developed to target a fundamentally different problem.”

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Medicaid recipients fight Kentucky HEALTH appeals – Insider Louisville