State, national organizations sue Trump administration to stop N.H. Medicaid work requirement

  • In this March 8, 2019 file photo, President Donald Trump talks with reporters outside the White House in Washington. As a presidential candidate, Donald Trump promised not to cut Social Security, Medicare, or Medicaid. In the White House, Trump went back on his promise not to cut Medicaid. Now he’s being criticized for steep Medicare payment cuts to hospitals in his new budget. The head of a major hospital association says in a blog that the impact on care for seniors would be “devastating.” The White House says it’s not cutting Medicare but making better use of taxpayers’ dollars. (AP Photo/ Evan Vucci) Evan Vucci

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Monitor staff
Published: 3/20/2019 2:38:45 PM

A group of state and national organizations are suing the federal government to halt New Hampshire’s Medicaid expansion work requirement, arguing that the program will unlawfully lead to low-income residents being kicked off their health insurance. 

In a filing in the U.S. District Court for the District of Columbia submitted Wednesday, the organizations, including New Hampshire Legal Assistance (NHLA), contend that the Centers for Medicare and Medicaid Services (CMS) violated the tenets of the Medicaid Act by granting New Hampshire the authority to require individuals work 100 hours a month in order to receive health benefits.

“Our concern is that folks who are eligible and working in fact will lose coverage,” said Dawn McKinney, policy director at NHLA. “The majority of folks in New Hampshire on Medicaid are in working households, and their concern is just even having to file additional paperwork or navigate these requirements will cause them to lose coverage.”

The class action lawsuit includes four New Hampshire plaintiffs, each of whom the organizations say will struggle to fulfill the 100-hour-per-month work requirement. 

One of them, 26-year-old Samuel Philbrick of Henniker, works as a cashier at a sporting goods store and is often offered irregular hours for work, the lawsuit states. Another, 40-year-old Ian Ludders of Unity, makes a living through seasonal agricultural work, leaving months open when he is between paid jobs. 

A spokesman for Gov. Chris Sununu criticized the lawsuit as an attempt “to undo a bipartisan agreement by New Hampshire lawmakers” waged by “a partisan national organization.” 

“We are reviewing the lawsuit, and intervening in this lawsuit is on the table,” Sununu spokesman Ben Vihstadt said. 

In an interview, Department of Health and Human Services Commissioner Jeff Meyers said that the department has been working to ensure that no one was unfairly denied coverage under the work requirement, and would continue implementing the requirement until a court intervened.

“There’s nothing in this lawsuit that appears to be challenging how New Hampshire is implementing its program, and we’re going to proceed,” Meyers said. 

D.C. approval under fire

The lawsuit adds the Granite State to two other states seeking to block similar programs: Kentucky and Arkansas. And it propels what has been a growing debate in New Hampshire over the effects of the state’s requirement down to the federal court system.

New Hampshire’s work requirement was passed into law by the Legislature last year as part of a bipartisan compromise to extend the state’s Medicaid expansion program an additional five years. 

The new law, which takes initial effect earlier this month, mandates that all those seeking to benefit from Medicaid expansion must be engaged in 100 hours of work or community volunteering a month unless they meet exemptions. 

But because the work requirement was not included in the original Affordable Care Act, Granite State officials had to request authority from CMS via waiver. In 2018, the Trump administration approved that waiver, submitted by the state’s Department of Health and Human Services, two years after the Obama administration declined to grant a similar request from the state. 

Now, plaintiffs are targeting that approval, made last November. And they’re also challenging the initial letter sent by CMS in January 2018, inviting states to apply for waivers to allow work requirements in a departure from the Obama-era position. 

“The approved waiver will harm Plaintiffs and individuals throughout the State who need a range of health services, including check-ups, mental health services, insomnia treatments, vision services, surgeries, and medications,” the lawsuit states, arguing it would lead to increased medical debt and loss in care. 

Joining the NHLA in filing the lawsuit are two national organizations, the New York-based National Center for Law and Economic Justice and the Washington, D.C.-based National Health Law Program, which is serving as lead counsel. The latter organization has served as lead counsel for the two continuing federal lawsuits against the programs in Kentucky and Arkansas.

Potential hardship

Each of the plaintiffs cited in the lawsuit said they relied on Medicaid expansion and would face hardship accessing it if the work requirement is enacted, Wednesday’s court complaint states. 

Philbrick, of Henniker, does not have a driver’s license, the lawsuit stated, and lives with his parents in an area with “little to no” public transportation, according to the complaint. He needs the insurance coverage for his insomnia medication, but his condition makes finding better opportunities to meet the 100-hour threshold, the complaint said. 

Ludders, meanwhile, lives in a cabin in a cooperative community engaged in subsistence living. The months he isn’t doing seasonal work, he’s working with his neighbors to cut wood and carry out other tasks to continue that lifestyle, according to the lawsuit. While New Hampshire’s work requirement allows “community engagement” to stand in for work hours, Ludders doesn’t believe his neighborly activities would count unless carried out through an organization, the lawsuit said.

Finally, the lawsuit says a married couple with three children living in Laconia, referred to as “Karin and Joshua VLK,” could be affected due to the irregular hours Joshua works in construction. Joshua VLK relies on his Medicaid expansion coverage to treat his abdominal hernia, which allows him to continue to work, according to the complaint.

The stories are examples of why the work requirements go against the intention of the Medicaid law, counsel for the plaintiffs argued. 

“Continuous and adequate health insurance coverage is fundamental for each Plaintiff’s ability to stay as healthy as possible and to work,” the lawsuit states. “The Secretary’s action approving Granite Advantage will cause harm to Plaintiffs.”

Exactly how many people might be affected by the implementation of the work requirement is hard to pin down; the state DHHS has estimated that up to 15,000 of the roughly 50,000-person Medicaid expansion population in the state are not working or presently exempted. 

But Meyers, the DHHS commissioner, said whatever the number of people who have to comply, the department has worked to make sure that no one gets kicked out of coverage. Department officials have been leading outreach efforts to inform people how to stay in compliance with the law, Meyers said, including holding information and training sessions across the states and fielding radio ads.

Assuming that the program is already faulty is premature, Meyers added. 

“It’s not implemented yet,” he said. “This is speculative. That’s why we’re working very hard to ensure that those issues do not exist.”

(Ethan DeWitt can be reached at, at (603) 369-3307, or on Twitter at @edewittNH.)

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