It’s too early to celebrate victory in our work requirement litigation, but there are significant positive developments. I thought you might appreciate an update and an explanation of recent events and what they mean for individuals across the country.
As you know, we have been challenging the Trump administration’s approval of waivers that allow states to impose work requirements and other obstacles to Medicaid coverage. We have won in the courts so far, but in December the Supreme Court agreed to review two D.C. Circuit decisions in our favor, those involving waivers in Arkansas and New Hampshire.
We filed a strong brief on February 18th, demonstrating the soundness of the D.C. Circuit’s reasoning. We also notified the Court that circumstances have changed since the Court agreed to hear the case and any decision the Court makes likely would have no actual impact. On February 22nd, the federal government agreed that the Court’s review is no longer appropriate and asked the Supreme Court to remove the cases from its docket and send them back to the Department of Health and Human Services. That’s a good development. Here’s the government’s Motion and NHeLP’s statement explaining the Motion. We hope that the Court will agree that it is no longer necessary or appropriate for it to review these cases, but there’s no guarantee of that. Right now, the cases are still on the Court’s docket and scheduled for argument on March 29. We consented to the government’s motion. New Hampshire took no position, but Arkansas has opposed the motion. We expect to know soon whether the Court plans to go ahead with argument as scheduled on March 29.
Here’s how we got here:
In early 2018, the Centers for Medicare and Medicaid Services (CMS) announced its policy in favor of imposing work requirements as a condition of Medicaid eligibility and started approving waivers authorizing states to move forward with work requirements and other obstacles to Medicaid coverage. We challenged several of the waivers in court and, over the last three years, have successfully blocked those waivers from going into effect. Other states with approved waivers delayed implementation because of our litigation. The result was that, other than for a brief period when the Arkansas waiver was in effect, we made it through the entire Trump administration without the full implementation of work requirements in any state. In December, however, the Supreme Court agreed to review the D.C. Circuit decisions in our favor. The Trump administration filed its brief on January 19, 2021—its last day in office. We filed our response brief on February 18th.
After the inauguration, the Biden administration moved swiftly to change the policy — CMS rescinded the Trump administration formal policy encouraging work requirements and sent letters to states with approved waivers informing them of its preliminary conclusion that work requirements will not promote the objectives of the Medicaid program. CMS has given states 30 days to submit any additional information that in the state’s view may warrant not withdrawing the waiver authority. Although the departing CMS director attempted to make it impossible for the new administration to rescind approved waivers for 9 months after CMS decides to revoke an approved waiver, the Biden administration also notified states that the policy has been withdrawn. NHeLP submitted a petition asking the Biden administration to rescind that policy.
In addition to the change in policy, it is unlikely that any work requirement waiver could go into effect this year. All states are receiving enhanced federal Medicaid matching funds because of the COVID-19 pandemic. As a condition of receiving those funds, states cannot cut back on enrollment and services that were in effect in March 2020 as long as the public health emergency is in effect. The Biden administration has indicated that the public health emergency likely will remain in effect at least through 2021. By that time, the Biden administration will have denied or rescinded the waivers. In addition, at least one of the waivers at issue before the Court will expire at the end of the year and would have to be renewed in order to go into effect.
In other words, we ran out the clock.
Hundreds of thousands of people have continued to receive health care through Medicaid, despite the Trump administration’s determination to kick them off through work requirements. When we started this fight three years ago, we didn’t know that we would win, but we knew we had to try. We had to fight for those thousands of people who need health care – and to preserve the essence of the Medicaid program, a program whose core purpose is to provide health care services to people who need them. Throughout these three years, we said repeatedly that delay was victory. Delay meant another day, week, month when individuals stayed on the Medicaid rolls. The days, weeks and months added up. They took us past an election and into a new policy designed to implement Medicaid’s core purpose rather than undermine it.
Now we wait to see how the Court will respond to the federal government’s motion. As we wait, I am reflecting on the path to this point.
In many ways, the brief we filed last week is the culmination of three years of extraordinary work, not just by NHeLP, but by teams of lawyers in Kentucky, Arkansas, New Hampshire, Michigan and Indiana, by our national partners, and by amazing lawyers at Jenner & Block, who partnered with us at every step. It also reflects the success of our Health Law Partnerships. Through those partnerships, we have provided funding to enable state-based legal advocacy organizations to partner with us. Nothing about this effort has been easy. I remember when the Governor of Kentucky sued our plaintiffs and had them personally served with complaints. It took courage on the part of all of our plaintiffs to tell their stories and stand up to power, both state and federal. It required strategy, education and outreach to build the administrative records with substantive, evidence-based comments. It required careful drafting of pleadings and briefs, and rigorous argument preparation. Because of all of that work, hundreds of thousands of people stayed on the Medicaid rolls.
We are hopeful that the Supreme Court will decide that it should not continue its review of these cases. Whatever happens in the Court, it is unlikely that any work requirements will go into effect.
We saved lives. You saved lives. Thank you.
Elizabeth G. Taylor