Opinion | Here’s how Gov. Whitmer can limit impact of Medicaid work requirements

Samuel R. Bagenstos is law professor at the University of Michigan Law School, a member of the University of Michigan Institute for Healthcare Policy and Innovation, and a former Principal Deputy Assistant Attorney General at the United States Department of Justice.

Gov. Gretchen Whitmer will soon face one of the most consequential choices of her young administration. At stake are the lives and health of thousands of Michiganders.

The issue is the implementation of the Medicaid work requirement — one of the “parting gifts” that former Gov. Rick Snyder and the Republican-led Legislature left Gov. Whitmer last year.  

The Legislature, at then-Gov. Snyder’s prodding, agreed to continue to participate in the Affordable Care Act’s expansion of Medicaid, thus making health insurance available to people who earn up to 138% of the federal poverty level. But it took advantage of a new Trump administration policy and attached a condition: Those between ages 19 and 62 who receive Medicaid under the expansion must satisfy a work requirement.  

Unless these individuals fit within an exempted category (such as pregnancy or “medical frailty”), they must work, participate in education or training, or engage in a similar activity for at least 80 hours per month. If people fail to comply with the work requirement — or to sufficiently report their compliance with that requirement — for three months in a year, they will be thrown off the Medicaid rolls.

Under Medicaid law, the state was required to seek a waiver from the federal government to implement this new condition on eligibility. Applying its new policy encouraging work requirements, the Trump administration approved the waiver in December 2018. The work requirement will take effect in January 2020.

Attaching a work requirement to Medicaid is terrible policy. Leave aside for a second the moral problems with the proposition that underlies such a work requirement — that, in the richest society in the history of the world, the penalty for failure to work should be avoidable illness and death. Medicaid work requirements fail even on their own terms.

The Kaiser Family Foundation has found that the overwhelming majority of nonelderly people who would be subject to these requirements either already work or face significant barriers to working. As a result, most of the people thrown off the rolls by work requirements will lose their health insurance because they failed to navigate through the “red tape” entailed in reporting compliance with the requirement — not because they actually were ineligible.  

In addition, many poor people can find work only in jobs with irregular schedules.  Through no fault of their own, they will fall below the 80-hour threshold in some months. These problems will, of course, be exacerbated in our state, with its high car insurance rates and limited access to public transit.

The harm of Medicaid work requirements falls especially heavily on people with disabilities. Although these requirements typically include formal exemptions for disabled individuals — as Michigan’s does — the exemptions do not reach all disabilities. Even when they qualify, people with disabilities are especially likely to be stymied in navigating the bureaucratic process of claiming and reporting an exemption. And, as I and other scholars have argued, Medicaid is particularly important in providing disabled people with the support necessary to work.  Imposing work requirements on individuals with disabilities is likely to present a classic Catch-22: They cannot obtain Medicaid because they have not worked, but they cannot work without obtaining Medicaid.

These are not just theoretical concerns. Arkansas pioneered the new Medicaid work requirements. When that state implemented its policy last year, over 18,000 people lost their health insurance. The vast majority appear to have been people who were either working or eligible for an exemption from the work requirement. They were thrown off of the rolls because they could not navigate the state’s reporting bureaucracy.

Michigan’s new work requirement is likely to have an even more harmful impact.  Under the law adopted by the Legislature last year, and the waiver submitted by Gov. Snyder and approved by the Trump Administration, Michigan exempts far fewer people from the work requirement than does Arkansas. As the consulting group Manatt Health recently noted, “all individuals over age 49 [were] exempt in Arkansas, compared to those over age 61 in Michigan; anyone living with a child under age 18 is exempt in Arkansas, compared to caretakers of children under age 6 (limited to 1 parent at a time) in Michigan.”

Extrapolating Arkansas’s experience to Michigan’s population, and the much more limited exemptions in our work requirement, Manatt Health concluded that Michigan’s new requirement “could cause up to 27 percent of the state’s Medicaid expansion population to lose coverage within a year—an estimated 183,000 out of 680,000 people enrolled in the Healthy Michigan Plan.”

If over 180,000 Michiganders lose their health insurance, they will be condemned to avoidable illnesses, medical complications, and even death. For example, reducing Medicaid expansion to this extent would result in an estimated 165 fewer cancer diagnoses being made — including 145 early-stage cancer diagnoses — annually. And if the more than 180,000 Michiganders who lost their Medicaid did not find other health coverage, roughly 579 additional people would die each year.

During her time in the legislature, Gov. Whitmer was a leader in fighting against consequences like these. When Michigan first confronted the question whether to join the Affordable Care Act’s Medicaid expansion, then-Senator Whitmer played the key role in rounding up the votes to sign on.  She took on powerful voices from her own Democratic Party who wanted to deny Gov. Snyder a legislative win, as well as those in the Republican Party who opposed any Medicaid expansion. Thanks to her rolling up her sleeves, doing the hard work and taking risks, 680,000 Michiganders have health care today who would not have before.  

Gov. Whitmer must act now to protect that legacy.  

To be sure, her options are limited. Without a legislative majority, she cannot eliminate the new work requirement. The law adopted last year by the Legislature, and signed by then-Gov. Snyder, requires her to implement the work requirement as approved in the Trump Administration’s waiver.

For now, Gov. Whitmer is stuck with the work requirement. But she does have room to implement it in a way that blunts its worst harms. Indeed, if she makes the right choices, she could protect 70,000 or more Michiganders from being thrown off the rolls by that requirement.

The Arkansas experience demonstrates the major implementation problem with Medicaid work requirements: Whenever individuals who comply with or are exempt from those requirements must report their compliance or exemption, the difficulty in navigating a state’s bureaucracy will result in a large fraction of those individuals being erroneously thrown off the rolls. Although it is tempting to blame the Arkansas results on a particularly poorly designed website, the evidence suggests that the problems go much deeper — and are, indeed, inherent in requiring poor and disabled people to navigate through a complex bureaucracy while engaging in all of the other tasks necessary to manage their lives.

To solve this problem, exemptions from Michigan’s new work requirement must, so far as possible, be determined automatically by state officials — without any need for application or certification by the individual beneficiaries. The legislation that created the requirement already contains a number of automatic exemptions. The requirement excludes individuals who are under 19 or over 62, for example, as well as those who have already been determined to have complied with — or been exempt from—the work requirements under the Supplemental Nutrition Assistance Program.

But the statute does not limit the automatic exemptions to those that it specifically enumerates. It provides that, when the Michigan Department of Health and Human Services implements the work requirement, the requirement “must include, but is not limited to,” the eligibility standards and exemptions listed in the legislation.  And it provides that MDHHS must implement the work requirement “as approved in the waiver” issued by the federal government.

The waiver itself provides the basis for further automatic exemptions. It requires Michigan, “[p]rior to implementation” of the work requirement, to “[e]nsure the state will assess areas within the state that experience high rates of unemployment, areas with limited economies and/or educational opportunities, and areas that lack public transportation.” The state must assess those areas “to determine whether there should be further exemptions” from the work requirement so that it “will not be unreasonably burdensome for beneficiaries to meet.”

That provision of the waiver — which, remember, was issued by the Trump Administration — gives Gov. Whitmer the basis for adding a new administrative exemption for Medicaid recipients in “areas with limited economies.” Such an exemption could substantially reduce the harm of the work requirement.

One way to design such an exemption is to exempt Michigan counties who are found to be “distressed” or “at risk” by the Economic Innovation Group’s (EIG) Distressed Counties Index. Based on EIG’s index, which includes measures such as the share of adults not working, the share of people without a high school degree, the poverty rate and more, a quarter of Michigan’s counties fall into these two classifications. These include areas such as Wayne, Genesee, and Saginaw Counties, as well as rural areas throughout both the Lower and Upper Peninsulas. If MDHHS were to administratively exempt individuals in these counties from the work requirement, the high-end estimate is that only about 109,000, instead of 183,000, people would be thrown off the rolls. That would still be a substantial harm, but it would potentially protect over 70,000 people from losing their Medicaid lifeline.

So Gov. Whitmer has a choice. She can implement the work requirement as it is. Or she can add new administrative exemptions allowed by the Medicaid waiver the Trump Administration approved. At stake may be the availability of health insurance for over 70,000 Michiganders.

Adding a new administrative exemption will require leadership. Gov. Whitmer may subject herself to attacks from Republicans in the legislature, and she might find herself in litigation with the Trump Administration. But adding such an exemption has a sound legal and moral basis.

Gov. Whitmer’s courageous leadership is a major reason why Michigan expanded Medicaid in the first place. It’s time for her to show the same courage in protecting that legacy.

Bridge welcomes guest columns from a diverse range of people on issues relating to Michigan and its future. The views and assertions of these writers do not necessarily reflect those of Bridge or The Center for Michigan.

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Comments

Kevin Grand
Tue, 05/14/2019 - 7:13am

"Attaching a work requirement to Medicaid is terrible policy. Leave aside for a second the moral problems with the proposition that underlies such a work requirement — that, in the richest society in the history of the world, the penalty for failure to work should be avoidable illness and death."

Oh, please!!!

Talk about hyperbole.

Regardless of what happens with Snydercaid, EMTALA , signed into law by Pres. Reagan no less, prevents that very scenario from occurring.

http://www.emtala.com/

Prof. Bagenstos has obviously "forgotten" that America doesn't operate from the "Each according to their ability, to each according to their need"-philosophy.

And if you want to see the end result from that line of thinking which he is obviously defending, just check out what is happening in nations that have adopted that system. Ambulances waiting to enter hospitals, waiting lists for treatments that would be unacceptable here and patents told that they would not be treated because their care simply costs too much to the system.

And don't try going somewhere else to receive better treatment...the government won't let you leave the country.

https://www.dailymail.co.uk/health/article-6577057/NHS-crisis-12-000-pat...

https://www.forbes.com/sites/sallypipes/2018/10/01/u-k-s-healthcare-horr...

https://www.telegraph.co.uk/news/2017/04/03/terminally-boy-denied-potent...

https://www.reuters.com/article/us-britain-health-alfie/court-rules-grav...

Bernadette
Tue, 05/14/2019 - 10:15am

"Oh, please!!! Talk about hyperbole."

Kevin,

A wise man once said we don't see the world as it is, we see it as we are. Very apparent from your remarks how you see the world. I am wondering where you need healing?

Kevin Grand
Tue, 05/14/2019 - 8:37pm

I'm doing fine, but thank you for asking.

Seeing the trouble coming down the pike should be VERY troubling to anyone.

When you have the government continually promoting free stuff with absolutely no obligation on the individual receiving it, paid for by someone else, the health care system that we currently enjoy won't last.

It's that simple.

Bones
Wed, 05/15/2019 - 1:01pm

Cut the crap. The welfare state in America is a shadow of what it once was. Privatization, means-testing and laws demonizing the poor have stripped the safety net almost bare, and yet Conservatives still have the gall to complain about moochers while extolling the virtues of an economic in which structural unemployment is a necessity. You lot truly disgust me

Kevin Grand
Thu, 05/16/2019 - 7:27am

This might come as a shock to you, Bones, but America was NEVER meant to be a welfare state.

That was a terrible vote-buying idea, spawned from a failed philosophy, whose end results should be readily apparent to anyone who takes a leisurely drive up Michigan, Van Dyke or Gratiot Avenue outside from Downtown.

And "structural unemployment"?!?

What bizarro-world are you getting your information from.

The UI numbers are down (and have been for several months now).

https://www.bls.gov/web/laus/laumstrk.htm

There are very few stores or any fast food restaurant that DON'T have a help wanted sign out in front. Many offering on-the-spot interviews.

If you don't have a job right now, then you aren't looking.

A Hope
Tue, 05/14/2019 - 10:54am

Yes, they are having some issues. However, note how shocked they are that some patients had to wait twelve hours before being admitted to the hospital?
Well, have you ever spent time waiting in an emergency room in the US? Twelve hours is nothing. Five hours or more is typical unless you are losing blood from an artery or actually having a heart attack.
But what all these articles ignore is that, these patience do not have to worry about PAYING the bill. Yes, they wait. But they will not incur a bankruptcy because of doctor bills. And as to the little boy with the rare condition, odds are that health insurance in the US would not have covered ‘experimental’ procedures either. Yes, he may have gotten treatment, maybe——but with an impossible bill.
Finally, all of these examples are from Britain. Note that ALL the rest of the industrialized world has national health care that treats its citizens without people 1)dying from lack of treatment, as happens here. Or 2) going bankrupt over medical bills, which is a leading cause of bankruptcy in the US.
Waiting for care? —it’s a problem. DYING for lack of it —including denials from your insurance company—is a much bigger one. Losing your house because of medical bills is a bigger problem than waiting —on occasion for care.

middle of the mit
Tue, 05/14/2019 - 9:57pm

""Attaching a work requirement to Medicaid is terrible policy. Leave aside for a second the moral problems with the proposition that underlies such a work requirement — that, in the richest society in the history of the world, the penalty for failure to work should be avoidable illness and death."

Oh, please!!!

Talk about hyperbole.

Regardless of what happens with Snydercaid, EMTALA , signed into law by Pres. Reagan no less, prevents that very scenario from occurring."

http://www.emtala.com/

That site says that no one will be refused service. It doesn't say they won't incur debt. Does it?

"Prof. Bagenstos has obviously "forgotten" that America doesn't operate from the "Each according to their ability, to each according to their need"-philosophy."

https://en.wikipedia.org/wiki/From_each_according_to_his_ability,_to_eac...

In a higher phase of communist society, after the enslaving subordination of the individual to the division of labor, and therewith also the antithesis between mental and physical labor, has vanished; after labor has become not only a means of life but life's prime want; after the productive forces have also increased with the all-around development of the individual, and all the springs of co-operative wealth flow more abundantly—only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs![1][3][4]

This philosophy is about 2000 years old. At least if you go by Biblical standards. And it IS how Christ wanted His Church run.

Some scholars trace the origin of the phrase to the New Testament.[11][12] In Acts of the Apostles the lifestyle of the community of believers in Jerusalem is described as communal (without individual possession), and uses the phrase "distribution was made unto every man according as he had need" (διεδίδετο δὲ ἑκάστῳ καθότι ἄν τις χρείαν εἶχεν):

Acts 4:32–35: 32 And the multitude of them that believed were of one heart and of one soul: neither said any of them that ought of the things which he possessed was his own; but they had all things common. 33 And with great power gave the apostles witness of the resurrection of the Lord Jesus: and great grace was upon them all. 34 Neither was there any among them that lacked: for as many as were possessors of lands or houses sold them, and brought the prices of the things that were sold, 35 And laid them down at the apostles' feet: and distribution was made unto every man according as he had need.

"And if you want to see the end result from that line of thinking which he is obviously defending, just check out what is happening in nations that have adopted that system. Ambulances waiting to enter hospitals, waiting lists for treatments that would be unacceptable here and patents told that they would not be treated because their care simply costs too much to the system."

Do you think God or Jesus would allow that to happen if you followed their way? Mostly, those systems lose out because the wealthy amongst them don't want to pay for anything that doesn't help the wealthy accumulate more wealth. Mammon if you will.

Does that sound familiar? The country is crumbling after the decades of 90-76% top marginal tax rates paid to build it up. Now, after 40 years of paying less than 40% and the biggest profits ANY NATION ON THE PLANET HAS EVER SEEN, it is still not enough for the major corporations even though they just got another tax break and the top 100 corporations didn't pay ANY TAXES last year. Yet, did their wages go up or their prices go down?

Has the price of a car gone down since MI voters voted in right to work? OH no? GM just raised the price of cars while laying off people?

And don't try going somewhere else to receive better treatment...the government won't let you leave the country.

Ida Byrd-Hill
Tue, 05/14/2019 - 8:41am

Perhaps this is a good time to assist residents to embrace technology so they can report their eligibility. Or even get a educational credential in technology to secure a stable job. I manage a technology program, www.autoworkz.org

mary therese lemanek
Tue, 05/14/2019 - 3:51pm

If people facing work requirements were able to learn the technology skills necessary to secure a stable job, don't you think they would be more than willing to do so? It is far more complicated than a willingness to embrace technology...

Arjay
Tue, 05/14/2019 - 9:27am

So we should do away with the work requirement because the real problem is red tape in the reporting system? Please! Fix the red tape in the reporting system and leave the work requirement alone. Why do democrats always want to use OPM to solve any problem?

Tony
Tue, 05/14/2019 - 11:09pm

The work requirement is moronic and was designed to kick people off the Medicaid rolls, period... All this idiocy will do, is prevent sick, elderly and already financially disadvantaged people from getting the medical care they need. And who will end up footing the massive bill for this cost cutting measure...? We will, as thousands of people who would normally be able to get the care they need, will flood the E.R.'s of Mi... not being able to pay the bill...and that cost, will get pushed onto everyone. Snyder was a criminal, who allowed a entire city to be poisoned to save a few bucks, then repeatedly lied about the damage to cover his own a*s. The only reason he went along with the work requirement is to allow the Republican Legislature to continue funneling those " tax savings" to their rich donors, via tax breaks. This is literally going to end up killing people, it's just sickening

Patrick Anderson
Tue, 05/14/2019 - 9:56am

One might read this and think Section 1115 waivers were invented by President Trump. In fact, they date from 1962. Section 1115 is not in the ACA (signed by President Obama); it is in the Social Security Act.

It is worth considering whether "red tape" hinders people from getting needed health care coverage. I am quite sure it does, and we should address it. That's would be a modestly courageous (and more factually accurate) recommendation to make.

marvin reinhardt
Tue, 05/14/2019 - 10:33am

Thanks for encouragement NOt to Work, and live ff YOUr Tax Bucks.

Jim
Tue, 05/14/2019 - 10:49am

Just the beginning of important reforms and modifications that can be made administratively. I fully support this, and want all our fellow citizens to think hard about other ways to make this work.

A Hope
Tue, 05/14/2019 - 11:01am

This requirement is cruel for many, many people. I know folks that have serious mental illnesses- such as depression, autism, and PTSD and cannot work consistently, if at all. Navigating the piles of paperwork required by Medicaid was already a nightmare. This rule pretty much kicks these folks to the curb. If you can’t think about this with compassion, then think how it affects your wallet, because the jails, emergency rooms (the ones that treat the uninsured) and homeless shelters will have to try to take up the slack.

Rick
Tue, 05/14/2019 - 11:37am

The GOP (and most of the commenters below) seem to want to inflict as much misery as possible on the lowest people in our society. Why?
And at the same time the GOP wants to lavish more and more tax cuts and advantages for the wealthy and large corporations. Why?
Just pure greed and cruelty because these people are powerless and the GOP needs to direct hate to someone else and away from what they are doing to the 'rest of us'.
‘The true measure of any society can be found in how it treats its most vulnerable members’

David Frye
Tue, 05/14/2019 - 12:04pm

The nonsensical, cruel, and counter-productive "work requirement" is par for the course for today's extremist GOP. They claim to hate "big government," bureaucracy, red tape, and absurd regulations -- but when it comes to hurting poor people for no particular reason, there's no regulation too absurd and no government bureaucracy too overweening for them. They claim to do it for fiscal soundness, but the experience of Arkansas shows the added bureaucracy to run it costs the state far much more than throwing tens of thousands of their fellow citizens under the bus saves. And if they succeed, they will substantially weaken the rural hospitals that rely on Medicaid payments to stay afloat. It's lose-lose-lose, all around, with the GOP.

Kris
Tue, 05/14/2019 - 2:31pm

There should be work requirements and there are plenty of exemptions. I see to many moochers in Michigan that are more than able to work. It is learned and is embedded in them on how to get "free" stuff. I'm sick of it. All you bleeding hearts out there can take care of them.

Dr Kurt
Tue, 05/14/2019 - 9:34pm

Kris, I am surprised to hear that you know a lot of "moochers" in Michigan. I was going to add to this conversation that I am a primary care physician and can't think of a single patient on disability or medicaid that I would consider to be a "moocher." What I DO see is a lot of people that work hard at jobs that don't provide benefits and they don't make enough money to afford their own insurance. I see a lot of victims of abuse and neglect or of mental illness that lack the ability to care for themselves. I also see sick people that want to work but can't afford the medical care it would take to get better. Kevin Grand (above) suggests that EMTALA will take care of that: EMTALA requires that we give rescue care in the Emergency Room (often for free) to people who SHOULD HAVE been cared for in a less expensive and more effective way in the office of a primary care doctor. In order to see a primary care doctor... you need insurance (like Medicaid).
EMTALA does not pertain to preventive care.... only "rescue care." That is why every other developed nation's healthcare is better than the US. They provide free preventive care to everyone. Less sick people. Less rescue care. Period.

Kevin Grand
Wed, 05/15/2019 - 7:22am

Well, Doctor, if you're uncertain why hospitals love charging tiered pricing for services, EMTALA is the reason.

People who don't want to pay their bills and expect others to pay for them is an unsustainable system for the reasons that I've linked to above.

Interestingly enough, I haven't been able to locate very much information on this problem before hospitals were forced to provide services.

Coincidence?

It is also arrogant presumption on yours and other commenters above that for those of us who actually go out and work for a living, that we don't have our own priorities that we want to pay for.

That being said, there is nothing stopping you, and opponents of the work requirements, from giving as much of your own money (or in your case time) as you see fit.

I already gave at the office.

A Hope
Wed, 05/15/2019 - 9:38pm

Compassion not your strong suit, is it?
You are lucky indeed to have never been laid off at age 60 after a successful career, too young for Medicare or Social Security and too old to get a decent job with benefits. Or to have severe PTSD plus a traumatic brain injury from military duty in Afghanistan that makes you unable to work. Or to be a single mom with severe diabetes, a handicapped child, and an ex-husband who has severe depression himself and can’t hold a job or offer any kind of financial help or health insurance —and you have to keep leaving work because your kid needs care, so you can’t keep a steady job yourself. . Or to be a twenty-something who works two jobs to put food on the table, has no benefits, and never had parents who could offer any support for continuing education or training so you could quit and get a better job—and you can’t possibly go to school more than very part-time and how do you pay the bills if you quit one of your jobs?
Lucky you. These are all real people and you are blessed that you are not one of them. It would be nice, though, if you didn’t judge them, and instead saw them as humans who are struggling to do their best.
You know, one day you might be one of them yourself. There are no guarantees in life for anything.

Kevin Grand
Thu, 05/16/2019 - 7:36am

Compassion, yes.

Compulsory compassion, absolutely not!

And just where do you get off making statements that I, and I'll venture a guess others, HAVEN'T had more than a few rough spots in our lives???

The only difference between us here is that I (and them) don't go about kvetching and moaning about it and expecting, no DEMANDING, that someone else pay my (our) way.

Bones
Wed, 05/15/2019 - 12:43am

Work requirements on medicare are needless bureaucracy that hurt the poor while doing little to clamp down on fraud and abuse, and more to the point reframe the conversation away from the fact that we still don't have universal healthcare in this country. You can call us bleeding hearts, but we want everyone to be taken care of (even cruel, myopic reactionaries like you)

Gloria Woods
Tue, 05/14/2019 - 6:12pm

Knowing our Governor's record of working for the people, I'm confident she will be looking for ways to implement the Medicaid work requirement that does the least harm to Michigan citizens with low income.

My hope is that, with the new districts drawn to end gerrymandering, we can elect folks who believe in our citizens and pass laws that improve our quality of life.

Allan Blackburn
Wed, 05/15/2019 - 10:40am

These bills are designed for one purpose alone, to impose cruelty to people who are impoverished as we just cannot do enough to inflict damage on the already poor. This is what so-called Christians do to one another as it supposedly saves money. For a country who claims to be pro-life? I am always amazed at the hypocrisy of our great nation. And you people who claim that this is free you need to get an education. We all pay taxes. Nothing is free and those who claim that the emergency rooms can provide this service free of charge please see how many rural hospitals have closed their doors because of losing money from providing free care and receiving low Medicaid and Medicare reimbursements. When you look at the great economy that the president keeps espousing and tooting his own horn for the unemployment rate is low and the lowest in over 50 years. Many are working in the gig economy with no benefits or eligibility for ACA subsidies and still make a low enough wage which qualifies them for Medicaid. Pushing them in to a red tape system to keep qualifying on a month to month basis reeks of cruelty. How many of you would want to have your employer judge you on a monthly performance basis in order to keep qualifying for your job. Talk about idiocy!