State pushes ahead on TennCare work requirements despite court rulings against Kentucky, Arkansas Medicaids programs

March 31-- Mar. 31--NASHVILLE -- Tennessee officials say they are are pressing on with the state's proposed Medicaid work requirement for some TennCare enrollees after a federal judge last week blocked similar actions already taken by Kentucky and Arkansas.

"We will continue to move forward with our work and community engagement waiver as required by state law while also monitoring any developments related to the recent decision," said Kelly Gunderson, a spokeswoman for TennCare, the state's Medicaid health program for some of Tennessee's poorest residents.

If the federal Centers for Medicare and Medicaid Services (CMS) does approve Tennessee's waiver of Medicaid rules, the earliest the program could take effect would be sometime in 2020, Gunderson said.

Her comments came after U.S. District Judge James E. Boasberg in Washington, D.C., rejected Thursday for a second time Kentucky's plan to require recipients to work or volunteer as a condition of coverage.

In a separate case, Boasberg also blocked a similar Arkansas rule, approved by the Trump administration, which was already in effect and has resulted in 18,000 people losing health coverage there.

Michele Johnson, executive director of the Tennessee Justice Center, said the advocacy group was "heartened" by Boasberg's ruling, charging that Medicaid work reporting requirements have "undermined the program's mission of providing health care for the vulnerable" in Arkansas.

She said Tennessee's efforts are even more worrisome, given that Kentucky and Arkansas' work rules only apply to the Medicaid expansion population -- low-income, childless adults allowed to come into the program under the 2010 federal Affordable Care Act.

The GOP-led Tennessee General Assembly here has repeatedly batted down Medicaid expansion proposals, including one from then-Republican Gov. Bill Haslam.

"Kentucky and Arkansas "specifically exempted the very population that Tennessee targets with their waiver -- parents," Johnson said. "The federal government argued in these cases they should be allowed to apply these new bureaucratic requirements because in these states, this is not the core Medicaid population."

Still, Johnson said Friday, health care advocates say that CMS "is likely to grant Tennessee's waiver as the first non-expansion state imminently. I wish they would stop playing games with people's health care and lead."

Hours after her remarks, CMS Administrator Seema Verma approved a Medicaid work-requirement waiver sought by Utah officials. Voters there approved allowing poorer, childless adults to join the program in a referendum last year.

In her approval letter to Utah officials, Verma wrote "there is little intrinsic value in paying for services if those services are not advancing the health and wellness of the individual receiving them, or otherwise helping the individual attain independence.

"Therefore," Verma wrote, "we believe an objective of the Medicaid program, in addition to paying for services, is to advance the health and wellness needs of its beneficiaries, and that it is appropriate for the state to structure its demonstration project in a manner that prioritizes meeting those needs."

In a footnote, Verma cites a 2006 study for the British government titled "Is Work Good For Your Health And Well-Being?"

The Justice Center's Johnson said that unlike Tennesssee, Kentucky and Arkansas expanded Medicaid to cover "childless adults who are too poor for ACA subsidies, but who generally work in low wage jobs that don't offer health insurance."

While rejecting Medicaid expansion, Tennessee Republican lawmakers here last year passed the law directing that TennCare officials seek federal permission from CMS to apply the requirements in TennCare.

It has the backing of Republican Gov. Bill Lee.

"I'm in favor of the work requirements," Lee said last week, according to the Associate Press. "It's important we figure out a way for folks to become independent and this allows them to do that and works toward that. What happens in court, we'll have to watch and see."

Tennessee's program provides health coverage for some 1.3 million low-income pregnant women, mothers, children, seniors and the disabled.

The state's proposal requires "able-bodied" enrollees work, volunteer or get into education and job training programs on average for 20 hours per week or risk losing benefits. It would not apply to pregnant women, primary caregivers whose children are under age 6, the elderly or the disabled.

The initiative came from then-Republican House Speaker Beth Harwell of Nashville, who at the time was running for governor. Rep. Dan Howell, R-Georgetown, was a bill co-sponsor and carried the legislation.

During the debate, Howell stressed the requirements would "only apply to able-bodied enrollees" and there were exclusions for pregnant women and other categories. The work, community engagement and education or job training requirements, Howell said, were similar to those for enrollees in the state's Families First welfare program.

In an interview Friday, Howell said that while he had heard about the Arkansas and Kentucky rulings, it's too early to say what it will mean for Tennessee's efforts.

Noting he had met previously with President Donald Trump's senior welfare adviser, Howell said "I felt like what we put in our bill was consistent with where the Trump admininistration wanted to go. Of course, that doesn't mean a judge can't look at it and say, 'Sorry, you can't do that.'"

The Justice Center's Johnson predicted that if approved, the "work reporting requirements for Tennessee will be costly, result in coverage losses for moms, further destabilizing our health care infrastructure, and now we know they are illegal."

Tennessee Lt. Gov. Randy McNally, R-Oak Ridge, the Senate speaker, told reporters Thursday he expects CMS officials will evaluate the judge's decision "and see if what we require is different from what I think the courts in the past have required."

But, McNally added, "I'd say the decision will probably be appealed, much like the decision that the ACA is unconstitutional. I'm sure that will be appealed."

TennCare officials submitted their proposed waiver amendment to CMS on Dec. 28. A 30-day federal comment period ended in February.

"The waiver proposal will need to be approved by CMS as well as Administration for Children and Families (ACF) which will need to approve our proposal to use [Temporary Assistance for Needy Families] dollars to fund the implementation of the program," Gunderson said. "We do not know how long it will take to receive these approvals."

The Temporary Assistance for Needy Families program is where the state hopes to get money to fund the work, community engagement and education or training provisions for TennCare enrollees.

Gunderson said other factors that "will drive the timeline for implementation of the amendment is the design, development, and testing of systems changes related to the new requirements."

"Given that these systems changes will be needed, we have consistently estimated that the earliest the waiver would be able to go into effect would be 2020," she said.

With the addition of Utah, the Trump administration has now allowed nine states to require that Medicaid enrollees work, volunteer or get involved in work training or other education programs in order to be eligible for health benefits.

Tennessee is one of six states seeking permission to impose similar requirements.

Contact Andy Sher at [email protected] or 615-255-0550. Follow him on Twitter @AndySher1.

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