Yesterday, the Department of Health and Human Services (HHS) re-approved the Kentucky HEALTH Medicaid Section 1115 application waiver, which imposes harmful changes to Medicaid such as a work requirements, higher than ever before-approved premiums up to 4 percent of income, lockouts from coverage and waivers of benefits including retroactive eligibility and non-emergency medical transportation. Unfortunately, HHS’s re-approval keeps all of these harmful changes in place.

Over the summer, HHS was ordered to re-review the application as a result of Stewart v. Azar, a lawsuit brought by a group of Kentucky Medicaid enrollees, the National Health Law Program, Kentucky Equal Justice Center and the Southern Poverty Law Center. The judge in Stewart v. Azar invalidated Kentucky HEALTH because he concluded that Secretary Azar did not adequately perform his duties when reviewing the application, specifically the duties to: 1) consider the impact of the waiver’s proposal on health coverage, and 2) consider the comments received from the public. Since the Kentucky HEALTH application included a projection that 95,000 individuals would lose coverage (but was approved nonetheless), the judge concluded Secretary Azar could not have adequately considered the impact on coverage. Additionally, since the waiver was approved despite the overwhelming majority of comments expressed opposition to it, the judge felt that HHS did not adequately take the public’s comments into consideration.

HHS’s response to both the public comments and projected coverage losses in its approval letter, however, is once again frustratingly inadequate and insincere. For example, HHS declares that the public commenters simply got it wrong, and the 95,000 projected coverage losses are perhaps not coverage losses at all. Rather, the agency says, that number may reflect individuals who have gained new forms of coverage, such as employer-sponsored insurance, as a result of meeting the work requirement, or who have only temporarily lost coverage through the many different types of lockouts Kentucky is imposing. They also justify work requirements by hiding behind the fact that Section 1115 allows waivers to “result in an impact on eligibility, enrollment, benefits,” etc. and callously reiterate that Medicaid expansion became optional as a result of the Supreme Court’s decision in NFIB v. Sebelius. Therefore, according to them, they’re being generous by deciding to cover the expansion population and are well within their rights to impose these harmful restrictions.

This twisted reasoning is a weak effort to put lipstick on a pig, since we know that Medicaid work requirements have only proven to be a barrier to coverage. While the Trump Administration has approved work requirements in five states this year (Kentucky, Indiana, Arkansas, New Hampshire and Wisconsin), Arkansas has been the only state to implement them. A recent report from the state shows that since June 2018, when implementation began, more than 12,000 individuals have lost coverage, which has caused many to be unable to access needed care and prescriptions, and has resulted in lost employment, medical debt and worsened health.

The Kentucky HEALTH re-approval now stands in a long line of attempts by the Trump Administration to sabotage the Affordable Care Act and Medicaid. In the past two years, they have encouraged Congressional attempts to repeal the ACA and make deep cuts to Medicaid, slashed funding for and the Navigator program, increased the availability of junk insurance plans that will de-stabilize the ACA’s marketplaces, rolled back non-discrimination protection in health care, made it easier for employers to deny employee access to contraceptives, and instilled fear in immigrant families who want to both apply for a green card as well as benefits they are eligible to receive. Imposing barriers such as work requirements between individuals and the health care they need will do nothing to improve health and wellbeing, as HHS claims, and instead only undermines Medicaid, a program that improves access to care and health outcomes, and reduces health disparities.

Fortunately, Community Catalyst works with advocates on the ground in Kentucky who we know will be working tirelessly to monitor and mitigate the harms of Kentucky HEALTH when it’s implemented in April 2019. When the waiver was initially implemented in the spring of this year, before being halted by Stewart v. Azar, Kentucky Voices for Health, along with their partners, were incredibly successful in getting the state to create additional exemptions for newly-resettled refugees, the chronically homeless and survivors of domestic violence (and survivors of domestic violence have now been added to Kentucky HEALTH as an exempt population from work requirements, premiums and lockouts). They also hosted public forums across the state to answer questions about the waiver, created informational material about the waiver to distribute to Medicaid applicants and enrollees, and collected stories of those affected by the waiver to elevate in the media. We know they will undertake these efforts once again to build a record of these harmful policies so they can hopefully be reversed by future policymakers.