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July 25, 2019

Will New Hampshire's Medicaid work requirements be struck down next?

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    A federal judge who earlier this year struck down Medicaid work requirements in Arkansas and Kentucky on Tuesday heard oral arguments in a lawsuit challenging the Trump administration's approval of Medicaid work requirements in New Hampshire.

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    Background on New Hampshire's work requirements

    New Hampshire's work requirements mandate that certain Medicaid beneficiaries attend school, engage in community service, work, or participate in other activities—such as substance use disorder treatment or caregiving outside of the home—for at least 100 hours each month to qualify for coverage.

    The requirements apply to beneficiaries ages 19 to 64 with annual incomes between 100% and 138% of the federal poverty level who are enrolled in Medicaid under the state's expansion of the program. The requirements do not apply to beneficiaries who are:

    • Disabled;
    • Caring for a dependent child with a disability;
    • Medically frail;
    • Participating in certain drug court programs; or
    • Pregnant.

    The state requires affected beneficiaries to submit proof that they are fulfilling the requirements each month. The state will suspend Medicaid coverage for affected beneficiaries who do not meet the requirements until they fulfill the 100-hour work requirement. In addition, New Hampshire eliminated retroactive coverage under the state's Medicaid program.

    In June, the first month the work requirements were in effect, just over 8,000 of the almost 25,000 Medicaid beneficiaries who were subject to the work requirements submitted such documentation, prompting the state to extend compliance until Sept. 30.

    Sununu also signed into law a bill (SB 290) that will halt the work requirements if 500 or more beneficiaries are disenrollled in Medicaid because of noncompliance, or if health care providers in the state see an increase in uncompensated care due to Medicaid beneficiaries losing their coverage because of the work requirements.

    Lawsuit details

    The National Health Law Program (NHeLP), New Hampshire Legal Assistance, and the National Center for Law and Economic Justice in March filed a lawsuit in the U.S. District Court for the District of Columbia against HHS and CMS for approving New Hampshire's Medicaid work requirements.

    The groups filed the lawsuit on behalf of four Medicaid beneficiaries. The groups argued that the administration did not have the authority to approve the state's request because eliminating retroactive coverage and imposing work requirement do not align with Medicaid's purpose of "furnishing medical assistance." The groups argued that the requirements will result in tens of thousands of Medicaid beneficiaries losing their health coverage.

    The oral arguments

    Tuesday's oral arguments in the case largely focused on when U.S. District Court Judge James Boasberg should issue a decision—and not whether CMS should have approved the state's Medicaid waiver request.

    State and federal attorneys noted that New Hampshire officials are working to amend the Medicaid waiver under which it implemented the new requirements, and that Boasberg should delay ruling in the case until CMS decides whether to approve or deny that amendment.

    Lindsey Courtney, litigation counsel at the New Hampshire Attorney General's Office, said state officials do not have a firm timeframe on when CMS might approve the amendment. "It'll take many months till the point we get a decision from CMS," Courtney said.

    Matthew Skurnik of the Department of Justice argued, "It doesn't make sense for the court to intervene prematurely and interrupt that process," and requested that Boasberg delay his ruling until mid-November.

    Boasberg agreed that it could take CMS months to issue a decision on the waiver amendment.

    But Catherine McKee, a senior attorney at NHeLP, said, "It's a risk of real injury here if there is a delay." McKee argued that a delay is not necessary because the lawsuit challenges the administration's approval of the waiver in its current state, and not how the state plans to amend the waiver.

    Boasberg during the arguments did ask some questions regarding the current waiver's potential effects that were similar to questions he raised in the cases challenging Arkansas' and Kentucky's Medicaid work requirements, Axios' "Vitals" reports. For instance, Boasberg asked whether CMS had considered if coverage losses that would stem from New Hampshire's new requirements would be larger than those in Arkansas and Kentucky, noting that New Hampshire's waiver implements comparatively stricter work requirements.

    Skurnik said it is unlikely New Hampshire would see larger coverage losses because the state has a smaller population.

    Courtney also noted that New Hampshire implemented an outreach program to prevent beneficiaries from losing coverage under the new requirements.

    According to Roll Call, it is not clear how Boasberg will rule in the case (Baker, "Vitals," Axios, 7/24; Raman, Roll Call, 7/23; Cancryn, "Pulse," Politico, 7/24).

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