Amicus Curiae Brief — Xavier Becerra, Secretary of Health and Human Services, et al., Petitioners v. Charles Gresham, et al.

Supreme Court briefFeb 25, 2021

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Nos. 20-37, 20-38

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------NORRIS COCHRAN, ACTING SECRETARY

OF HEALTH AND HUMAN SERVICES, ET AL.,

Petitioners,

v.

CHARLES GRESHAM, ET AL.,

Respondents.

---------------------------------♦--------------------------------STATE OF ARKANSAS,

Petitioner,

v.

CHARLES GRESHAM, ET AL.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

---------------------------------♦--------------------------------BRIEF OF TEXAS MEDICAL-LEGAL PARTNERSHIPS

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------KEEGAN WARREN-CLEM

KASSANDRA GONZALEZ

MEDICAL-LEGAL PARTNERSHIPS,

TEXAS LEGAL

SERVICES CENTER

1920 E. Riverside Dr.

Suite A-120, #501

Austin, TX 78741

ERIN GLENN BUSBY

Counsel of Record

LISA R. ESKOW

MICHAEL F. STURLEY

UNIVERSITY OF TEXAS

SCHOOL OF LAW

SUPREME COURT CLINIC

727 E. Dean Keeton St.

Austin, TX 78705

(713) 966-0409

ebusby@law.utexas.edu

February 25, 2021

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

6

QUALIFYING INDIVIDUALS ALREADY FACE

SUBSTANTIAL ADMINISTRATIVE OBSTACLES

TO ACCESSING MEDICAID BENEFITS FOR

WHICH THEY ARE ELIGIBLE .........................

6

A. Medicaid’s Target Population Is

Particularly Ill-Equipped To Navigate

Complex And Ongoing Administrative

Requirements ......................................

7

I.

B. The Medicaid Application Process

Presents Multiple Obstacles To

Accessing Care..................................... 10

C. The Appeals Process Presents Another

Set Of Administrative Obstacles To

Coverage .............................................. 17

D. Once Applicants Qualify For Medicaid,

They

Must

Continue

Clearing

Administrative Hurdles To Maintain

Benefits ................................................ 20

II.

THE LIFE EXPERIENCES OF MEDICAID PATIENTS

AND THE MLP CLINICIANS AND ATTORNEYS

WHO ASSIST THEM ILLUSTRATE HOW

ADMINISTRATIVE HURDLES IMPEDE ACCESS TO

COVERAGE .................................................... 26

ii

TABLE OF CONTENTS—Continued

Page

III.

WORK PROGRAMS’ REPORTING REQUIREMENTS

ADD ADMINISTRATIVE OBSTACLES TO COVERAGE

THAT MAY DISQUALIFY OTHERWISE-ELIGIBLE,

WORKING RECIPIENTS AND UNDERMINE

HOLISTIC EFFORTS TO AMELIORATE HEALTH

DISPARITIES ................................................. 32

CONCLUSION..................................................... 37

iii

TABLE OF AUTHORITIES

Page

STATUTES AND REGULATIONS

FEDERAL AND STATE STATUTES

42 U.S.C. § 254b(b)(1)(A)(iii) ................................... 1, 35

42 U.S.C. § 254b(b)(1)(A)(iv) ................................... 1, 35

42 U.S.C. § 1396a(a)(10)(A)(i) .......................................8

42 U.S.C. § 1396a(a)(10)(A)(ii) ......................................9

42 U.S.C. § 1396a(a)(17) ................................................9

42 U.S.C. § 1396a(a)(19) ................................................2

42 U.S.C. § 1396-1 ................................................... 2, 12

TEX. ADMIN. CODE ANN. § 357.11 ................................24

TEX. ADMIN. CODE ANN. § 358.545 ..............................24

FEDERAL REGULATIONS

42 C.F.R. § 430.0 ........................................................ 2, 6

42 C.F.R. § 431.210(a) .................................................18

42 C.F.R. § 431.210(b) .................................................18

42 C.F.R. § 431.210(d) .................................................18

42 C.F.R. § 431.220(a)(1) .............................................25

42 C.F.R. § 431.221(d) .................................................18

42 C.F.R. § 431.224(a)(1) .............................................18

42 C.F.R. § 431.240(a)(1) .............................................18

42 C.F.R. § 431.242(a)(2) .............................................18

iv

TABLE OF AUTHORITIES—Continued

Page

42 C.F.R. § 431.242(b) .................................................18

42 C.F.R. § 431.242(e)..................................................18

42 C.F.R. § 435.4 ............................................................8

42 C.F.R. § 435.120(c) ..................................................11

42 C.F.R. §§ 435.300-.350 ..............................................9

42 C.F.R. § 435.831(d) ...................................................9

42 C.F.R. § 435.902 ......................................................11

42 C.F.R. § 435.905(a) ...................................................7

42 C.F.R. § 435.905(b) ...................................................7

42 C.F.R. § 435.907(a) .................................................11

42 C.F.R. § 435.907(a)(1-5) ..........................................18

42 C.F.R. § 435.907(b) .................................................11

42 C.F.R. § 435.907(b)(2) .............................................10

42 C.F.R. § 435.907(c) ..................................................11

42 C.F.R. § 435.907(g) .................................................11

42 C.F.R. § 435.916(a)(1) .............................................20

42 C.F.R. § 435.916(a)(2) .............................................21

42 C.F.R. § 435.916(a)(3)(i)..........................................21

42 C.F.R. § 435.916(a)(3)(iii) .......................................25

42 C.F.R. § 435.916(b) ........................................... 20, 21

42 C.F.R. § 435.916(d)(1) .............................................21

42 C.F.R. § 435.917(a) ........................................... 18, 22

42 C.F.R. § 435.917(b)(2) .............................................18

42 C.F.R. § 435.1200(f )(1) .............................................7

v

TABLE OF AUTHORITIES—Continued

Page

42 C.F.R. § 435.1200(f )(1)(ii).......................................23

42 C.F.R. § 435.1200(f )(2) ...........................................23

OTHER AUTHORITIES

STATE APPLICATION MATERIALS

Application for Benefits Form H1010,

YOURTEXASBENEFITS (2019), https://www.

yourtexasbenefits.com/GeneratePDF/Static

Pdfs/en_US/H1010_Nov_2019.pdf .............. 14, 16, 17

Application for Health Coverage & Help Paying

Costs, ODM 07216, OHIO DEP’T OF MEDICAID

(July 2014), https://medicaid.ohio.gov/Portals/0/

Resources/Publications/Forms/ODM07216fillx.

pdf ............................................................................15

Application for Health Insurance, COVERED CAL.,

https://www.coveredca.com/pdfs/paper-application/

CA-SingleStreamApp_92MAX.pdf (last visited

Feb. 21, 2021)..................................................... 14, 16

Application for Medical Assistance for Families

with Children, KC1100, KANCARE MEDICAID FOR

KAN., https://www.kancare.ks.gov/docs/defaultsource/consumers/apply/families-and-children/

kc-1100-application-for-medical-assistancefor-families-with-children-11-18.pdf?sfvrsn=

79ee4c1b_8 (last visited Feb. 21, 2021) ..................14

Application for Oregon Health Plan Benefits,

OHP 7219, OR. HEALTH PLAN (May 1, 2020),

https://sharedsystems.dhsoha.state.or.us/DHS

forms/Served/he7210.pdf ............................ 14, 16, 17

vi

TABLE OF AUTHORITIES—Continued

Page

Application Guide, OHA 9025, OR. HEALTH PLAN

(May 2020), https://sharedsystems.dhsoha.state.

or.us/DHSForms/Served/he9025.pdf ......................16

Get a Paper Form, YOURTEXASBENEFITS, https://

www.yourtexasbenefits.com/Learn/GetPaperForm

(last visited Feb. 16, 2021) ......................................13

Get Benefits Now?, YOURTEXASBENEFITS,

https://www.yourtexasbenefits.com/Learn/

GetBenefitsNow (last visited Feb. 21, 2021) ..... 12, 13

Health Insurance Application, N.Y. ST. DEP’T OF

HEALTH, https://www.health.ny.gov/forms/doh4220.pdf (last visited Feb. 20, 2021) ................. 15, 16

How Do I Upload Files, YOURTEXASBENEFITS,

https://yourtexasbenefits.com/Learn/Help/Section

?s=5AD00E3E85242CA7530B76CB6591E631

#qid=2966768040AF442D0C69830AF636969A

(last visited Feb. 22, 2021) ......................................13

How to Renew Your Benefits, EMPIRE BLUE CROSS

BLUE SHIELD, https://mss/empireblue.com/ny/

enrollment/renew.html (last visited Feb. 16,

2021) ........................................................................23

Renewing Your Health Plan, COVERED CAL.,

https://www.coveredca.com/members/renewal/

(last visited Feb. 16, 2021) ................................... 23

vii

TABLE OF AUTHORITIES—Continued

Page

FEDERAL AND STATE GUIDANCE ON MEDICAID BENEFITS

CTRS. FOR MEDICARE & MEDICAID SERVS., ST. MED.

DIR. LETTER SMD 18-002, OPPORTUNITIES TO

PROMOTE WORK AND COMMUNITY ENGAGEMENT

AMONG MEDICAID BENEFICIARIES (Jan. 11, 2018),

https://web.archive.org/web/20210212202937/

https://www.medicaid.gov/federal-policy-guidance/

downloads/smd18002.pdf .................................... 3, 36

Gary Cohen & Cindy Mann, Guidance on State

Alternative Applications for Health Coverage,

CTRS. FOR MEDICARE & MEDICAID SERVS.

(2013), https://www.cms.gov/CCIIO/Resources/

Regulations-and-Guidance/Downloads/statealt-app-guidance-6-18-2013.pdf ..............................10

Historical and Projected Trends in Medicaid,

OFF. ASSISTANT SEC’Y FOR PLANNING &

EVALUATION, U.S. DEP’T HEALTH & HUM. SERVS.

(2006), https://aspe.hhs.gov/system/files/pdf/

74801/report.pdf .................................................... 8, 9

List of Medicaid Eligibility Groups, MEDICAID.GOV

(2019), https://www.medicaid.gov/sites/default/

files/2019-12/list-of-eligibility-groups.pdf ................8

Local Departments of Social Services, N.Y. ST.

DEP’T OF HEALTH, https://www.health.ny.gov/

health_care/medicaid/ldss (last visited Feb.

18, 2021) ..................................................................16

Sample Renewal Notice, TEX. HEALTH & HUM.

SERVS. COMM’N (2019), https://hhs.texas.gov/

sites/default/files/documents/laws-regulations/

forms/H1830-R/H1830-R.pdf ...................... 21, 22, 23

viii

TABLE OF AUTHORITIES—Continued

Page

Service Descriptors for Form 5A: Services

Provided, HEALTH RES. & SERVS. ADMIN.,

https://bphc.hrsa.gov/sites/default/files/bphc/

programrequirements/scope/form5aservice

descriptors.pdf (last visited Feb. 21, 2020) ............35

TEX. HEALTH & HUM. SERVS., TEX. MEDICAID &

CHIP IN PERSPECTIVE (2020) ...................................12

What is Medicaid?, SOC. SEC. ADMIN.,

https://www.ssa.gov/disabilityresearch/wi/

medicaid.htm (last visited Feb. 21, 2021) ...............11

YOURTEXASBENEFITS, https://www.yourtexasbenefits.

com/Learn/Home (last visited Feb. 18, 2021) .........12

OTHER RESOURCES

Samantha Artiga & Olivia Pham, Recent

Medicaid/CHIP Enrollment Declines and

Barriers to Maintaining Coverage, KAISER

FAM. FOUND. (Sept. 24, 2019), http://files.kff.

org/attachment/Issue-Brief-Recent-MedicaidCHIP-Enrollment-Declines-and-Barriers-toMaintaining-Coverage ............................................23

Patricia Boozang et al., Maintaining Medicaid

and CHIP Coverage Amid Postal Delays and

Housing Displacements, ST. HEALTH & VALUE

STRATEGIES (Sept. 24, 2020), https://www.shvs.org/

maintaining-medicaid-and-chip-coverage-amidpostal-delays-and-housing-displacements/ .........22

ix

TABLE OF AUTHORITIES—Continued

Page

Lisa Brodoff, Lifting Burdens: Proof, Social

Justice, and Public Assistance Administrative

Hearings, 32 N.Y.U. REV. L. & SOC. CHANGE

131 (2008) ................................................................19

Elizabeth Byrne, Texas Removes Thousands of

Children from Medicaid Each Month Due to

Red Tape, Records Show, TEX. TRIB. (Apr. 22,

2019), https://www.texastribune.org/2019/04/22/

texas-takes-thousands-kids-medicaid-everymonth-due-red-tape/ ...............................................24

Rachel Garfield et al., Implications of a Medicaid

Work Requirement: National Estimates of

Coverage Losses, KAISER FAM. FOUND. (June

27, 2018), http://files.kff.org/attachment/

Issue-Brief-Implications-of-a-Medicaid-WorkRequirement-National-Estimates-of-PotentialCoverage-Losses .................................................. 4, 34

Rachel Garfield et al., Understanding the

Intersection of Medicaid and Work: What

Does the Data Say?, KAISER FAM. FOUND.

(Aug. 8, 2019), https://web.archive.org/web/

20210202080918/https:/www.kff.org/medicaid/

issue-brief/understanding-the-intersection-ofmedicaid-and-work-what-does-the-data-say/ ...........9

Ian Hill et al., New Hampshire’s Experience

with Medicaid Work Requirements, URB. INST.

(Feb. 2020), https://www.urban.org/sites/

default/files/publication/101657/new_hampshires_

experience_with_medicaid_work_requirements_

v2_0_7.pdf ...............................................................34

x

TABLE OF AUTHORITIES—Continued

Page

Ian Hill & Emily Burroughs, Lessons from

Launching Medicaid Work Requirements in

Arkansas,

URB.

INST.

(Oct.

2019),

https://www.urban.org/sites/default/files/

publication/101113/lessons_from_launching_

medicaid_work_requirements_in_arkansas.pdf.......10

Chris Lee, Only Six Percent of Adult Medicaid

Enrollees Targeted by States’ New Work

Requirements Are Not Already Working and

Are Unlikely to Qualify for an Exemption,

KAISER FAM. FOUND. (June 12, 2018), https://

www.kff.org/medicaid/press-release/only-sixpercent-of-adult-medicaid-enrollees-targetedby-states-new-work-requirements-are-notalready-working-and-are-unlikely-to-qualifyfor-an-exemption/ .......................................... 4, 33, 34

Shefali Luthra, In Texas, People with Fluctuating

Incomes Risk Being Cut Off From Medicaid,

NPR (June 14, 2017), https://www.npr.org/

sections/health-shots/2017/06/14/532816157/

in-texas-people-with-fluctuating-incomes-riskbeing-cut-off-from-medicaid....................................24

Sara Rosenbaum et al., Community Health

Centers: Growing Importance in a Changing

Health Care System, KAISER FAM. FOUND.

(Mar. 9, 2018), https://www.kff.org/medicaid/

issue-brief/community-health-centers-growingimportance-in-a-changing-health-care-system/ ...... 35

xi

TABLE OF AUTHORITIES—Continued

Page

Robin Rudowitz et al., February State Data for

Medicaid Work Requirements in Arkansas,

KAISER FAM. FOUND. (Mar. 2019), http://files.

kff.org/attachment/State-Data-for-MedicaidWork-Requirements-in-Arkansas...........................33

Benjamin D. Sommers et al., Medicaid Work

Requirements in Arkansas: Two-Year Impacts

on Coverage, Employment, and Affordability

of Care, 39 HEALTH AFFS. 1522 (2020) .... 4, 33, 34, 35

Jennifer Trott et al., Financing Medical-Legal

Partnerships: View from the Field, NAT’L CTR.

FOR MEDICAL-LEGAL P’SHIP (Apr. 2019), https://

medical-legalpartnership.org/wp-content/

uploads/2019/04/Financing-MLPs-View-fromthe-Field.pdf ............................................................36

Jocelyn Wilson et al., Are State Medicaid

Application Enrollment Forms Readable?,

20 J. HEALTH CARE FOR POOR & UNDERSERVED

423 (2009) ................................................................19

NARRATIVES OF MLP PROFESSIONALS

Narrative of Adolescent Med. Physician, Austin,

Tex. (email received Jan. 9, 2021) (contributed

on condition of anonymity) .....................................27

Narrative of Lina Diaz, MLP Nationally

Registered Certified Med. Assistant, People’s

Cmty. Clinic, Austin, Tex. (email received Jan.

6, 2021) ....................................................................31

xii

TABLE OF AUTHORITIES—Continued

Page

Narrative of Sara Espahbodi, Staff Att’y, Legal

Hotline for Texans at the Tex. Legal Servs.

Ctr., Austin, Tex. (email received Feb. 2,

2021) .................................................................. 26, 27

Narrative of Wesley Hartman, Staff Att’y, Tex.

Legal Servs. Ctr., & MLP Att’y, Tex. Health

Action d/b/a KIND Clinic, Austin, Tex. (email

received Jan. 29, 2021) ............................................30

Narrative of Daphne McGee, Staff Att’y, Tex.

Legal Servs. Ctr., & MLP Att’y, Asian Am.

Health Coalition of the Greater Hous. Area

d/b/a HOPE Clinic, Hous., Tex. (email received

Jan. 29, 2021) ..........................................................29

Narrative of Leslee Perez, MLP Licensed

Clinical Social Worker, People’s Cmty. Clinic,

Austin, Tex. (email received Jan. 8, 2021) ..............27

Narrative of Regina Rogoff, Chief Exec. Officer,

People’s Cmty. Clinic, Austin, Tex. (email

received Dec. 6, 2020) ..............................................28

Narrative of Heidi Russell, MLP Oncologist,

Tex. Child. Hosp., Hous., Tex. (email received

Jan. 20, 2021) ..........................................................31

Narrative of Ben Steele, Patient Navigator, Tex.

Health Action d/b/a KIND Clinic, Austin, Tex.

(email received Jan. 15, 2021) ................................27

Narrative of Feba Thomas, MLP Physician,

People’s Cmty. Clinic, Austin, Tex. (email

received Dec. 23, 2020) ............................................30

1

INTEREST OF AMICI CURIAE1

Amici Texas Legal Services Center, People’s

Community Clinic, and Texas Health Action (d/b/a

KIND Clinic) are individual entities that collaborate

using the national medical-legal partnership (MLP)

model. MLPs embed legal professionals as part of

healthcare teams to address the health-harming legal

needs of low-income patients in the clinical setting.

MLP attorneys bring legal expertise to the delivery of

healthcare in a way that both improves outcomes for

patients and allows healthcare providers to focus on

medical needs rather than socio-legal factors outside

their expertise. MLP lawyers also help doctors and

patients navigate administrative and legal obstacles to

healthcare.

Under federal law, the legal assistance MLPs

provide is a “primary health service” because it

“enable[s] individuals to use the services of [a] health

center” and is “designed to assist health center

patients in establishing eligibility for and gaining

access to [certain] Federal, State, and local programs.”

42 U.S.C. § 254b(b)(1)(A)(iii), (iv). Additionally, some

Medicaid state plans and demonstration projects

provide for MLPs. Due to the nature of MLPs’ work

and the multi-professional composition of their staff,

MLPs see firsthand the administrative obstacles to

1

All parties have consented to the filing of this brief.

Pursuant to Supreme Court Rule 37.6, amici state that no counsel

for a party authored this brief in whole or in part, and no person

other than amici or their counsel made a monetary contribution

to its preparation or submission.

2

coverage that eligible Medicaid recipients face and

too-often fail to overcome.

Amici are well-positioned to identify those

obstacles in the current Medicaid system and are

concerned that experiments like the work-requirement

programs before this Court will exacerbate existing

administrative impediments to coverage.

Amici

believe that this increase in administrative burdens

will undermine the fundamental purpose of Medicaid

by excluding the vulnerable population that Medicaid

serves from access to healthcare.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Congress created Medicaid to improve access to

healthcare for a specific subset of those “whose income

and resources are insufficient to meet the costs of

necessary medical services,” including children from

low-income households, low-income pregnant women,

and certain low-income individuals with disabilities.

See 42 U.S.C. § 1396-1; 42 C.F.R. § 430.0. In light of the

limited resources and logistical challenges faced by

Medicaid’s target population, the program’s express

directive is to enhance access to healthcare “in a

manner consistent with simplicity of administration

and the best interests of the recipients.” 42 U.S.C.

§ 1396a(a)(19).

The reality of the Medicaid administrative scheme

falls far short of that goal. The application process—

designed to ensure that only eligible applicants

3

receive coverage—is so complex that it too-often

functions as a barrier rather than a gateway to care.

And the renewal and appeals processes are equally

convoluted, further impeding access to Medicaid

benefits for would-be recipients who satisfy the

program’s substantive eligibility requirements but

cannot successfully navigate Medicaid’s administrative

scheme.

The unintended consequences that stem from

existing administrative obstacles to coverage caution

against layering on additional reporting requirements

such as those incorporated in Arkansas Works and

the New Hampshire Granite Advantage Health Care

Program. Although the Centers for Medicare &

Medicaid Services (CMS) previously touted work

programs as a means to “promote better mental,

physical, and emotional health in furtherance of

Medicaid program objectives,” see CTRS. FOR MEDICARE

& MEDICAID SERVS., ST. MED. DIR. LETTER SMD 18-002,

OPPORTUNITIES TO PROMOTE WORK AND COMMUNITY

ENGAGEMENT AMONG MEDICAID BENEFICIARIES (Jan. 11,

2018), https://web.archive.org/web/20210212202937/

https://www.medicaid.gov/federal-policy-guidance/

downloads/smd18002.pdf (hereinafter “CMS Letter SMD

18-002”), that goal is undermined by administrative

requirements that inhere in these programs. While

employment ideally may provide some of the benefits

that CMS cited and the Secretary of Health and

Human Services echoed in the proceedings below, see

Pet. App. 12a-13a, the reporting aspects of the work

requirements instituted by states like Arkansas and

4

New Hampshire create new problems as well.

Specifically, Medicaid recipients who meet federal

eligibility standards and comply with state-imposed

work requirements may nonetheless lose coverage

because they are unable to successfully report their

work. See, e.g., Benjamin D. Sommers et al., Medicaid

Work Requirements in Arkansas: Two-Year Impacts on

Coverage, Employment, and Affordability of Care, 39

HEALTH AFFS. 1522, 1529 (2020).

Work is already a part of most Medicaid

recipients’ lives. Nationally, more than 60% of nondisabled, non-elderly recipients work full-time or

part-time. See Chris Lee, Only Six Percent of Adult

Medicaid Enrollees Targeted by States’ New Work

Requirements Are Not Already Working and Are

Unlikely to Qualify for an Exemption, KAISER FAM.

FOUND. (June 12, 2018), https://www.kff.org/medicaid/

press-release/only-six-percent-of-adult-medicaid-enrolleestargeted-by-states-new-work-requirements-are-not-alreadyworking-and-are-unlikely-to-qualify-for-an-exemption/.

Many other recipients fall within an exemption to

the work requirement. Indeed, only 6% of recipients

who are not exempt do not work. Id. (calculating

percentage based on broadest state exemptions). For

the more than 60% of non-disabled, non-elderly

Medicaid recipients who already work full-time or

part-time, see id., a work requirement would likely

have its greatest impact at the administrative level,

imposing reporting requirements that tend to

disenroll recipients. See Rachel Garfield et al.,

Implications of a Medicaid Work Requirement: National

5

Estimates of Potential Coverage Losses, KAISER FAM.

FOUND. 3, 5 (June 27, 2018), http://files.kff.org/

attachment/Issue-Brief-Implications-of-a-MedicaidWork-Requirement-National-Estimates-of-PotentialCoverage-Losses (hereinafter “Garfield, Implications”).

In light of the threat to coverage posed by the

additional administrative requirements of the

experimental work-programs at issue here, the court

below correctly determined that it was arbitrary and

capricious for the Secretary of Health and Human

Services to approve those state programs without

addressing coverage-loss concerns. See Pet. App. 2a,

9a-10a, 18a (concluding that “the principal objective of

Medicaid is providing healthcare coverage,” and the

Secretary’s approvals rested on “an entirely different

set of objectives”); see also id. 20a-21a.

The perspectives of clinicians and attorneys at

MLPs shed light on the dangers of adding the

administrative obstacles intrinsic to work-requirement

programs.

When Medicaid recipients who meet

eligibility requirements are excluded from coverage

because of administrative hurdles they lack the

resources to clear, the system fails at a fundamental

level. The proposed work requirements threaten to

multiply these administrative hurdles, further

limiting the availability of Medicaid to its intended

recipients. Increased administrative burdens also

threaten to undermine holistic efforts to reduce health

disparities, diverting MLP and other resources away

from more productive, heath-supporting initiatives.

Given the vulnerability and serious medical needs of

6

Medicaid’s target population, the federal government

should not encourage states to experiment with work

requirements that exacerbate the problem of lost

coverage for reasons unrelated to beneficiaries’ actual

eligibility under federal and state law.

---------------------------------♦---------------------------------

ARGUMENT

I.

Q UALIFYING I NDIVIDUALS A LREADY F ACE

S UBSTANTIAL ADMINISTRATIVE OBSTACLES TO

ACCESSING MEDICAID BENEFITS FOR WHICH

THEY ARE ELIGIBLE.

Despite meeting federal and state eligibility

requirements, would-be Medicaid recipients too-often

fail to obtain or maintain the coverage to which they

are entitled. Although “broad Federal rules” aspire to

simplify access to Medicaid and set guidelines for

states to follow, see 42 C.F.R. § 430.0, the process of

applying for and maintaining Medicaid coverage is

anything but simple.

Impediments to accessing care often stem from

the logistical difficulties of navigating the Medicaid

administrative scheme, which is particularly challenging

for Medicaid’s vulnerable target population. Would-be

recipients may lack awareness of, or be unable to

comprehend, administrative requirements. Even

those who understand what information to provide

may fail to obtain coverage because they lack the

resources, technological and otherwise, to comply with

7

administrative obligations. Examining these existing

obstacles to Medicaid coverage helps explain why the

federal government should discourage state workprogram experiments that add administrative

requirements that threaten healthcare coverage. See

Pet. App. 9a-10a (reasoning that approvals of state

programs must be guided by Medicaid’s purpose: to

provide access to healthcare coverage).

A. Medicaid’s Target Population Is Particularly

Ill-Equipped To Navigate Complex And

Ongoing Administrative Requirements.

Before individuals can apply for Medicaid, they

must know the program exists. And that is never a

given. Although federal law requires states to provide

information “in plain language” about Medicaid

eligibility requirements, available services, and “rights

and responsibilities” of beneficiaries and applicants,

42 C.F.R. § 435.905(a)-(b), would-be recipients must

know where to locate that plain language. Federal

regulations mandate that this required information

be available on the website of the state agency

administering Medicaid, provided “orally as appropriate,”

and given to whoever requests it. Id. § 435.905(a),

§ 435.1200(f )(1). But if a would-be recipient does not

know which agency website to check, is unaware of

the “appropriate” means of oral communication, or is

uncertain how to request information about eligibility

or rights and responsibilities of applicants and

beneficiaries, that individual may never even enter

the system. And people often find out about Medicaid

8

only after becoming ill, so they begin the complicated

application process burdened by health concerns and

medical bills. As a result, the stakes can be incredibly

high by the time a person decides to apply for

coverage.

An

overview

of

eligibility

requirements

demonstrates the inherent vulnerability of Medicaid’s

target population, as a practical matter, in accessing

coverage.

The Medicaid program creates three

eligibility groups: “mandatory categorically needy,”

“optional categorically needy,” and “medically needy.”

List of Medicaid Eligibility Groups, MEDICAID.GOV

1-2 (2019), https://www.medicaid.gov/sites/default/files/

2019-12/list-of-eligibility-groups.pdf; see 42 C.F.R.

§ 435.4. If individuals meet “non-financial criteria”

for a certain eligibility group—e.g., age, disability

status, or state citizenship—they then must also

satisfy state-specific financial criteria. Historical and

Projected Trends in Medicaid, OFF. ASSISTANT SEC’Y

FOR PLANNING & EVALUATION, U.S. DEP’T HEALTH &

HUM. SERVS. 26 (2006), https://aspe.hhs.gov/system/

files/pdf/74801/report.pdf.

An individual’s eligibility-group classification

affects states’ obligations to provide coverage. For

individuals categorized as “mandatory categorically

needy,” coverage is required. That group includes

“aged, blind and disabled individuals,” low-income

families, Supplemental Security Income recipients,

pregnant women, and children. Id.; see 42 U.S.C.

§ 1396a(a)(10)(A)(i).

Coverage is noncompulsory,

however, for those in the “optionally categorically

9

needy group.” That category is based on “less

restrictive” standards but similarly includes children,

pregnant women, families, and “aged, blind or disabled”

people. Historical and Projected Trends in Medicaid,

supra, at 27; see 42 U.S.C. § 1396a(a)(10)(A)(ii).

Finally, states have the option to provide coverage to

“medically needy” individuals who fall within the

preceding two categories but exceed income limits.

Historical and Projected Trends in Medicaid, supra,

at 28; see 42 C.F.R §§ 435.300-.350. Individuals can

bring themselves within the “medically needy”

category by “spending down,” a process requiring

proof of sufficient healthcare-expenditure income

deductions to deem the person income eligible. See 42

U.S.C. § 1396a(a)(17); 42 C.F.R. § 435.831(d); Historical

and Projected Trends in Medicaid, supra, at 3 n.4. The

complexities of these categories and states’ varying

obligations can leave eligible individuals uncertain

about where they stand.

Moreover, once would-be recipients identify their

potential eligibility, logistical impediments—including

seemingly simple administrative requirements—pose

practical obstacles. For example, aspects of the process

may require access to a computer, but 26% of adult

Medicaid recipients nationwide report that they never

use a computer. Rachel Garfield et al., Understanding

the Intersection of Medicaid and Work: What Does the

Data Say?, KAISER FAM. FOUND. (Aug. 8, 2019), https://

web.archive.org/web/20210202080918/https:/www.kff.org/

medicaid/issue-brief/understanding-the-intersection-ofmedicaid-and-work-what-does-the-data-say/. Even if

10

libraries or community centers offer public access to

computers, applicants still need to find transportation

to those locations during operating hours. See, e.g., Ian

Hill & Emily Burroughs, Lessons from Launching

Medicaid Work Requirements in Arkansas, URB. INST.

15 (Oct. 2019), https://www.urban.org/sites/default/files/

publication/101113/lessons_from_launching_medicaid_

work_requirements_in_arkansas.pdf. And, once there,

those individuals may be unfamiliar with the

available technology.

Non-computer methods may also present

impediments to establishing eligibility. To receive a

mailed application or information, an individual

needs a stable address at which to receive mail—

which is not a given for those experiencing housing

instability. And applying by phone requires both

telecommunications access and knowing which

number to dial. Add into the mix the intrinsic

vulnerabilities of Medicaid’s target population—which

includes low-income individuals, the aged, children,

pregnant women, and individuals who are blind or

have other disabilities—and it becomes even clearer

why administrative burdens that may seem routine in

other contexts pose significant obstacles.

B. The Medicaid Application Process Presents

Multiple Obstacles To Accessing Care.

Although states must adhere to federal guidelines,

they maintain discretion regarding Medicaid applications.

See 42 C.F.R. § 435.907(b)(2); see also Gary Cohen

11

& Cindy Mann, Guidance on State Alternative

Applications for Health Coverage, CTRS. FOR MEDICARE

& MEDICAID SERVS. 2-4 (2013), https://www.cms.gov/

CCIIO/Resources/Regulations-and-Guidance/Downloads/

state-alt-app-guidance-6-18-2013.pdf.

States have

the option of either using the single, streamlined

application developed by the U.S. Secretary of Health

and Human Services or creating their own application,

subject to the Secretary’s approval, which can be “no

more burdensome on the applicant” than the federally

developed application.

42 C.F.R. § 435.907(b).2

While State programs must comply with “simplicity

of administration,” see id. § 435.902,3 the process

nonetheless remains challenging in many respects.

2

Depending on how applicants intend to qualify, they may

need to complete supplemental forms. See, e.g., 42 C.F.R.

§ 435.907(c).

And certain paths to qualification require

demonstrating eligibility for a separate program. For example,

proving eligibility for Medicaid for the Disabled generally

requires meeting disability requirements under Title XVI of the

Social Security Act. See id. § 435.120(c); What is Medicaid?, SOC.

SEC. ADMIN., https://www.ssa.gov/disabilityresearch/wi/medicaid.htm

(last visited Feb. 21, 2021).

3

States must ensure that applications and supplemental

forms are accessible to individuals with disabilities or limited

English proficiency. 42 C.F.R. § 435.907(g). States also must

accept applications online, by telephone, by mail, in person,

and “[t]hrough other commonly available electronic means.”

Id. § 435.907(a). As noted in Part I.A supra, many would-be

recipients may not get as far as locating forms or discovering the

options for submitting them.

12

In Texas, for example,4 would-be recipients can

access the online Medicaid application through a

portal. See YOURTEXASBENEFITS, https://www.your

texasbenefits.com/Learn/Home (last visited Feb. 18,

2021). That online process requires a computer

and a stable internet connection. Applicants who

successfully access the portal must then navigate

through a series of questions just to create an account,

specifying the programs for which they are applying

and stating whether they already receive state

benefits, are a refugee, or fall within an eligible

category (i.e., adults caring for a child, pregnant

women, people over 65 or people with a disability “that

is expected to last a year or longer,” children, adult not

taking care of a child, and “[p]erson who is (1) age 25

or younger, and (2) was in foster care”). Get Benefits Now?,

YOURTEXASBENEFITS, https://www.yourtexasbenefits.com/

Learn/GetBenefitsNow (last visited Feb. 21, 2021). If

an otherwise-eligible individual misunderstands a

question or selects the wrong category, that individual

cannot create an account.5 Finally, the application also

4

Unlike Arkansas and New Hampshire, which opted in 2014

and 2016, respectively, to expand Medicaid coverage beyond the

original four federal categories (i.e., the disabled, the blind, the

elderly, and low-income families with dependent children, 42

U.S.C. § 1396-1), see Pet. App. 2a, 70a, Texas covers only the

original four categories and the medically needy, with limited

exceptions. See, e.g., TEX. HEALTH & HUM. SERVS., TEX. MEDICAID

& CHIP IN PERSPECTIVE 12-21 (2020). But in amici MLPs’

experience, Texas’s basic administrative requirements to apply

for and maintain coverage are fairly representative of expansion

and non-expansion states alike.

5

The rejection message given on the portal gives no guidance

on what error an applicant may have made, simply saying: “Based

13

requires information from personal and financial

documents that applicants must have with them while

applying. See id. Some of these documents must be

scanned and uploaded. See How Do I Upload Files,

YOURTEXASBENEFITS, https://yourtexasbenefits.com/

Learn/Help/Section?s=5AD00E3E85242CA7530B76CB

6591E631#qid=2966768040AF442D0C69830AF636969A

(last visited Feb. 22, 2021).

Paper applications present their own logistical

challenges.

For example, in Texas, the paper

application requires an applicant to either print the

form from the YourTexasBenefits website—which

requires a computer, internet connection, and

printer—or request that a form be mailed. See Get a

Paper Form, YOURTEXASBENEFITS, https://www.your

texasbenefits.com/Learn/GetPaperForm (last visited

Feb. 16, 2021). Applicants who want to print an

application must choose the correct option out of six

forms—three of which are labeled, respectively, “Form

to apply for Medicaid for the Elderly and People with

Disabilities or Medicare Savings Program,” “Form to

apply for Medicaid for People with Disabilities who

Work—Medicaid Buy-In,” and “Form to apply for:

(1) Medicaid or CHIP, or (2) help paying for private

health insurance,” with no further guidance on which

form applies to which individuals. See id. Even

when applicants locate and print the correct form,

they need access to additional technology, such as a

on your answers, we can tell that you should not apply for benefits

on YourTexasBenefits.com. You aren’t able to get Texas benefits.”

Get Benefits Now?, supra.

14

copier (or a scanner and printer) to submit necessary

documentation. See Application for Benefits Form

H1010, YOURTEXASBENEFITS C (2019), https://www.

yourtexasbenefits.com/GeneratePDF/StaticPdfs/en_

US/H1010_Nov_2019.pdf

(hereinafter

“Texas

6

Application”).

Other states similarly require applicants to copy

and mail documents. For example, the California

application asks for applicants to provide proof of

citizenship and “[e]mployer and income information

for everyone in [their] family.” Application for Health

Insurance, COVERED CAL. 1, https://www.coveredca.com/

pdfs/paper-application/CA-SingleStreamApp_92MAX.pdf

(last visited Feb. 21, 2021) (hereinafter “California

Application”). The New York application requires

applicants to send proof of current or future income

and lists a number of other potentially relevant

documents, but it says to send only those “that apply

to [the applicant] and the people living with [him or

6

Applicants in households with more than five people must

copy and complete application pages for each “extra” household

member. See, e.g., Texas Application, supra, at 5. Other states

have similar requirements. See, e.g., Application for Oregon Health

Plan Benefits, OHP 7219, OR. HEALTH PLAN 5 (May 1, 2020),

https://sharedsystems.dhsoha.state.or.us/DHSforms/Served/he

7210.pdf (hereinafter “Oregon Application”) (requiring scans of

additional application pages when households exceed four);

Application for Medical Assistance for Families with Children,

KC1100, KANCARE MEDICAID FOR KAN. 6, https://www.kancare.ks.gov/

docs/default-source/consumers/apply/families-and-children/kc-1100application-for-medical-assistance-for-families-with-children-1118.pdf?sfvrsn=79ee4c1b_8 (last visited Feb. 21, 2021) (requiring

attachments when households exceed six).

15

her]” without explaining how to make that

determination. Health Insurance Application, N.Y. ST.

DEP’T OF HEALTH 5-6, https://www.health.ny.gov/forms/

doh-4220.pdf (last visited Feb. 20, 2021) (hereinafter

“New York Application”). New York also warns that

“[m]any local departments of social services do not

accept original documents by mail” and requires

applicants to “check with” their local department if

applicants “wish to mail” certain required documents,

such as proof of citizenship. Id. at 5.

Ohio’s paper application says to mail signed

applications to applicants’ local County Department of

Job and Family Services but does not include an

address. Application for Health Coverage & Help

Paying Costs, ODM 07216, OHIO DEP’T OF MEDICAID

7 (July 2014), https://medicaid.ohio.gov/Portals/0/

Resources/Publications/Forms/ODM07216fillx.pdf. It

directs applicants instead to a website. Id. Thus,

while a paper application may seem like the simplest

and least technologically demanding option, it still

presents obstacles by requiring extra equipment and,

even more fundamentally, a stable mailing address—

something many low-income applicants may not

have.

Applying in person may be no easier than using

the online portal or filling out a paper application

because it requires applicants to have transportation

and flexible job hours that enable a visit to the relevant

state agency’s local office during working hours.

Moreover, the physical-mobility, job-flexibility, and

transportation demands of the in-person application

16

process may be further complicated by outdated and

inaccurate online information about the office’s

location and hours of business. For example, New York

has a history of posting outdated links and incorrect

phone numbers for local offices on its Local

Department of Social Services website, creating

needless barriers to initiating an in-person

application. See, e.g., Local Departments of Social

Services, N.Y. ST. DEP’T OF HEALTH, https://www.health.

ny.gov/health_care/medicaid/ldss (displaying 29 bad

links when last accessed on Feb. 18, 2021).

Then there is the application itself.

Paper

applications can range from 12 to more than 40 pages

in length, depending on how the applicant intends to

qualify. See, e.g., Texas Application, supra (32 pages);

California Application, supra (36 pages); Oregon

Application, supra (49 pages not including a 16-page

accompanying “Application Guide,” Application Guide,

OHA 9025, OR. HEALTH PLAN (May 2020),

https://sharedsystems.dhsoha.state.or.us/DHSForms/

Served/he9025.pdf ); New York Application, supra (15

pages).

For example, the Texas Application for Benefits

Form H1010—the general Medicaid application form

for pregnant women, children, and adults—is 24

pages long, excluding three appendices. See Texas

Application, supra, at 1. It requires detailed contact

information for the head of household and all people

applying for Medicaid. Id. at 1, 4. The application also

requires a full catalog of all assets and all money

flowing into or out of the household, including any type

17

of government benefits, job income, child support,

loans, rent payments, utility payments, medical

payments, taxes, and costs of childcare or child

support. Id. at 10-15; see also Oregon Application,

supra, at 19-20 (requiring reported income including

“tips and commissions” and household members’ nonwork income, including unemployment benefits, socialsecurity benefits, interests or dividends, and alimony).

It is not difficult to imagine the logistical

challenges of compiling the substantial documentation

required to respond to these questions. And for

some low-income applicants with unstable living

situations, keeping that type of paperwork readily

available may not be realistic due to frequent moves

between housing or lack of reliable storage.

Additionally, after beginning the online process at a

local library or community center, applicants may

learn they do not have documents needed to answer all

questions. They therefore may need to make multiple

trips to the library or community center, compounding

transportation and physical-mobility challenges.

C. The Appeals Process Presents Another

Set Of Administrative Obstacles To

Coverage.

Like the Medicaid application process, the process

for appealing a denial of coverage includes a number

of procedural safeguards that sound valuable in

the abstract. At a practical level, however, these

safeguards fail to address the common logistical and

18

resource-related hurdles that may derail a would-be

recipient’s otherwise meritorious appeal.

To be sure, federal regulations do require states to

take steps to inform applicants of coverage denials and

the availability of an appeal. Thus, when a state

determines that an applicant is ineligible for Medicaid,

it must provide “timely and adequate written notice”

of the denial with a “clear statement of the specific

reasons supporting” the decision and information

about the applicant’s right to a fair hearing. See 42

C.F.R. §§ 431.210(a), (b), (d), 435.917(a), (b)(2). States

generally must provide a 90-day window for applicants

to request a hearing, and that request can be made

online, by telephone, by mail, in person, and “[t]hrough

other commonly available electronic means.” Id.

§§ 431.221(d), 435.907(a)(1-5); see also id. § 431.224(a)(1)

(providing for “an expedited fair hearing” when an

applicant’s “life, health or . . . function” is in jeopardy).7

Nonetheless, pursuing a hearing can be

daunting in practice. Determining how to schedule

a hearing can be a barrier in and of itself. And if an

applicant successfully obtains a hearing, the hearing

“can be a scary, intimidating, and complex process

that involves court-like procedures, public speaking,

motion practice, entry of exhibits, objections to

7

Hearings must occur “[a]t a reasonable time, date, and place,”

id. § 431.240(a)(1), and the applicant must have an opportunity

to present witnesses, “[q]uestion or refute any testimony or

evidence,” and “[e]xamine . . . [a]ll documents and records to

be used by the State or local agency . . . at the hearing.” Id.

§ 431.242(a)(2), (b), (e).

19

evidence, and an understanding of complicated

laws and procedures.” See Lisa Brodoff, Lifting

Burdens: Proof, Social Justice, and Public Assistance

Administrative Hearings, 32 N.Y.U. REV. L. & SOC.

CHANGE 131, 149 (2008) (discussing public-assistance

appeals generally).

Further, a person who

struggles enough medically or financially to apply

for Medicaid may lack the resources necessary to

secure professional assistance with an appeal.

Applicants with disabilities and those who are

severely ill often have the most urgent need for care

and the strongest grounds to challenge denials of

coverage. But this group may be especially disinclined

to appeal due to poor health, physical limitations, or

reduced resources. See id. at 150. And an appeal,

even if successful, cannot make up for lost timesensitive treatment, such as prenatal screenings and

other pregnancy-related care. Additionally, children

with serious medical needs may lose coverage because

caretakers cannot leave children uncared for during

the time needed to navigate an appeal.

Individuals seeking Medicaid coverage also

typically have low incomes, which means they often

lack the technological resources, job flexibility, and free

time needed to successfully navigate an appeal. Cf.

id. (discussing various challenges to appeals for lowincome applicants). And literacy issues can lead to

difficulties understanding denial notices or requests

for more information, as “Medicaid recipients are at

particular risk for both limited general and health

literacy skills.” Jocelyn Wilson et al., Are State

Medicaid Application Enrollment Forms Readable?,

20

20 J. HEALTH CARE FOR POOR & UNDERSERVED 423, 424

(2009).

D. Once Applicants Qualify For Medicaid,

They

Must

Continue

Clearing

Administrative Hurdles To Maintain

Benefits.

Even if a state approves an applicant for Medicaid

coverage, additional paperwork and ongoing administrative

requirements make each Medicaid recipient’s position

precarious. One of the most significant barriers to

continued coverage is the renewal process, an ongoing

evaluation of eligibility by the state in which delays

or errors by the recipient—or the state—can result in

recipients’ losing benefits before learning that those

benefits were in danger.

Given the rigorous application process, Medicaid

beneficiaries may think their coverage is set, subject

only to a disqualifying development. But the reality

is that recipients, once in the Medicaid system, must

requalify on an ongoing basis. Generally, states

must conduct periodic renewals, or redeterminations,

of beneficiaries’ Medicaid eligibility every twelve

months. 42 C.F.R. § 435.916(a)(1), (b). Individuals

whose eligibility is based on modified adjusted gross

income (MAGI) must renew their eligibility “no

more frequently than once every 12 months.” Id.

§ 435.916(a)(1). And states must redetermine the

eligibility of beneficiaries whose eligibility is not

21

MAGI-based “at least every 12 months.”

Id.

§ 435.916(b). However, if the state learns of a change

in a beneficiary’s circumstances that could affect

eligibility,

it

“must

promptly

redetermine

eligibility”—even between renewal periods. See id.

§ 435.916(d)(1).

During the renewal process, states must first

attempt to redetermine eligibility with the information

available to them. See id. § 435.916(a)(2), (b). But

if the state concludes that it lacks sufficient

information to make a redetermination, it sends a

pre-populated renewal form to the beneficiary and

provides at least 30 days for a response. Id.

§ 435.916(a)(3)(i).

Many of the administrative obstacles to a

successful Medicaid application are also present in the

renewal process. In Texas, for example, a Medicaid

recipient who has been sent a renewal form may

complete the process either online (requiring access to

a computer and the internet), by mail (requiring access

to a copier or a scanner and printer to prepare and

submit copies of supporting documents), or by fax

(requiring access to a fax machine). See Sample

Renewal Notice, TEX. HEALTH & HUM. SERVS. COMM’N

(2019), https://hhs.texas.gov/sites/default/files/documents/

laws-regulations/forms/H1830-R/H1830-R.pdf.

The renewal process also presents challenges

unique to this aspect of the Medicaid system. If the

state is unable to independently determine that a

recipient qualifies for coverage, it sends a request for

22

information by mail. See 42 C.F.R. § 435.917(a). So

Medicaid recipients who recently changed their

addresses might not receive the request and thus

might have no idea that their Medicaid benefits are in

jeopardy.8

Similarly, for low-income individuals without

stable housing, the notice may arrive at a location where

the recipient only sporadically or no longer resides,

delaying receipt of the notice and narrowing, if not

closing, the window to respond. See Boozang, supra.

(noting that federal regulations require only that a

state wait 30 days for a response to a renewal form and

that states generally give beneficiaries 10 to 15

business days to provide other eligibility information).

Once recipients receive a renewal notice, they may

find unclear instructions on how to satisfy renewal

requirements. Texas’s renewal notice, for example,

lists 13 types of documents the beneficiary must

provide, but only if they “apply to [the recipient’s] case.”

Sample Renewal Notice, supra, at 2. The form offers

no guidance for determining when documents “apply”

to one’s case, so beneficiaries may make incorrect

8

“Many state Medicaid and CHIP agencies do not, as

a standard practice, follow-up on returned mail but rather

terminate eligibility for individuals whose addresses no longer

appear valid.” Patricia Boozang et al., Maintaining Medicaid and

CHIP Coverage Amid Postal Delays and Housing Displacements,

ST. HEALTH & VALUE STRATEGIES (Sept. 24, 2020), https://

www.shvs.org/maintaining-medicaid-and-chip-coverage-amid-postaldelays-and-housing-displacements/.

23

assumptions and lose coverage as a result. And

“language or literacy challenges” increase the alreadyhigh risk that a beneficiary will misunderstand

instructions. Cf. Samantha Artiga & Olivia Pham,

Recent Medicaid/CHIP Enrollment Declines and

Barriers to Maintaining Coverage, KAISER FAM. FOUND.

4 (Sept. 24, 2019), http://files.kff.org/attachment/IssueBrief-Recent-Medicaid-CHIP-Enrollment-Declines-andBarriers-to-Maintaining-Coverage.

While federal guidelines direct states to provide

an online renewal option, 42 C.F.R. § 435.1200(f )(1)(ii),

the guidelines do not prescribe accompanying

instructions or procedures. See id. § 435.1200(f )(2)

(requiring only that the website “be in plain language”

and “accessible to individuals with disabilities and

persons who are limited English proficient”). And

states’ online instructions are not all models of

clarity. Texas’s renewal notice does not indicate that

supplemental documents can be uploaded online; it

instructs beneficiaries to “[b]ring or mail copies of ”

those documents to the state. See Sample Renewal Notice,

supra, at 2. And despite instructing beneficiaries to

“bring” documents, the form does not specify where to

bring them—in fact, the form does not even offer

in-person renewal as an option. See id.9

9

Some states do offer in-person renewal. E.g., Renewing

Your Health Plan, COVERED CAL., https://www.coveredca.com/

members/renewal/ (last visited Feb. 16, 2021); How to Renew

Your

Benefits,

EMPIRE

BLUE

CROSS

BLUE

SHIELD,

https://mss/empireblue.com/ny/enrollment/renew.html (last visited

Feb. 16, 2021).

24

In addition, administrative hurdles may arise

more often than the annual renewal. For select

groups, such as families with children on Medicaid,

states redetermine eligibility much more frequently.

In Texas, the state automatically receives

information electronically about unemployment

insurance applications and benefits, work and federal

taxes, and credit score and history, enabling it to

conduct redeterminations five times in 12 months—

including four months in a row. See TEX. ADMIN. CODE

ANN. § 358.545. Redeterminations are indexed to each

individual, which means that if household members,

usually children, enrolled at different times, renewal

notices may come as often as monthly. See, e.g., Shefali

Luthra, In Texas, People with Fluctuating Incomes Risk

Being Cut Off From Medicaid, NPR (June 14, 2017),

https://www.npr.org/sections/health-shots/2017/06/14/

532816157/in-texas-people-with-fluctuating-incomesrisk-being-cut-off-from-medicaid.

Individuals receiving such notices have only 10

days to resolve an alleged discrepancy. See TEX.

ADMIN. CODE ANN. § 357.11. Moreover, some recipients’

only notice of ineligibility comes at a doctor’s office,

when they must decide between incurring a bill they

cannot pay and foregoing needed care. See, e.g.,

Elizabeth Byrne, Texas Removes Thousands of

Children from Medicaid Each Month Due to Red

Tape, Records Show, TEX. TRIB. (Apr. 22, 2019),

https://www.texastribune.org/2019/04/22/texas-takesthousands-kids-medicaid-every-month-due-red-tape/.

25

Just as applicants who are initially deemed

ineligible can appeal the decision, beneficiaries who

are found ineligible during renewal or redetermination

of eligibility can request a hearing. See 42 C.F.R.

§ 431.220(a)(1). If individuals submit renewal forms

within at least 90 days of having eligibility

terminated for failing to satisfy renewal requirements,

the state must reconsider their eligibility. Id.

§ 435.916(a)(3)(iii). But many of the same logistical

hurdles that impede the application-appeal process

similarly impede successful appeals of disqualifications

during renewal. Cf. supra Part I.C.

This is not an exhaustive list of the administrative

barriers to care that exist in Medicaid systems

across the country. What is clear, however, is that

fundamental obstacles—an applicant’s lack of access

to a computer, misunderstanding of the application, or

inability to navigate the appeal or renewal process—

inhere in the current Medicaid administrative system.

And the cumulative effect of multiple administrative

hurdles, faced by populations with few resources to

tackle them, undermines the system’s ability to fulfill

its purpose of enhancing access to healthcare coverage.

See Pet. App. 9a-10a.

The reporting requirements associated with work

programs will increase the obstacles to healthcare

coverage that eligible recipients face. The federal

government should not authorize states to engage in

these types of coverage-defeating experiments.

26

II.

THE LIFE EXPERIENCES OF MEDICAID PATIENTS

AND THE MLP CLINICIANS AND ATTORNEYS WHO

ASSIST THEM ILLUSTRATE HOW ADMINISTRATIVE

HURDLES IMPEDE ACCESS TO COVERAGE.

Abstract discussions of forms and requirements

offer a glimpse into the complexities of Medicaid’s

administrative system, and the real-world experiences

of MLP attorneys, healthcare providers, and Medicaid

applicants and recipients confirm how difficult, and

at times inscrutable, the process can be. Even

professionals who interact regularly with the Medicaid

system sometimes hit administrative walls that

jeopardize or eliminate coverage for which individuals

qualify under the substantive parameters of the

Medicaid program.

Sara Espahbodi, a Staff Attorney with the Legal

Hotline for Texans at the Texas Legal Services

Center, has witnessed her clients encounter the

many administrative pitfalls in the Medicaid system.

Narrative of Sara Espahbodi, Staff Att’y, Legal Hotline

for Texans at the Tex. Legal Servs. Ctr., Austin, Tex.

(email received Feb. 2, 2021). She has seen clients

confused about which household members and

medical needs to include in the application—and that

confusion often results in applicants’ failure to supply

necessary medical documentation for the specific need

on which the application should have focused.

Leslee Perez, a Licensed Clinical Social Worker

and therapist with the People’s Community Clinic,

echoed Espahbodi’s paperwork concern, noting that

27

this aspect is particularly challenging for applicants

who lack stable housing and cannot carry around

extensive documentation. Narrative of Leslee Perez,

MLP Licensed Clinical Social Worker, People’s Cmty.

Clinic, Austin, Tex. (email received Jan. 8, 2021). Ben

Steele, a healthcare worker with Austin’s KIND Clinic,

further observed that some obstacles are beyond

patients’ control: Farm workers, for example, have

employers who may not regularly document income.

Narrative of Ben Steele, Patient Navigator, Tex. Health

Action d/b/a KIND Clinic, Austin, Tex. (email received

Jan. 15, 2021). Because the application process is so

difficult, Espahbodi recognizes that “getting assistance

is the best way to get Medicaid quickly” and that,

without outside help, many applicants face “at best” a

long wait before receiving benefits.

Espahbodi

Narrative, supra.

Medicaid applicants’ widespread need for assistance

in navigating the system results in some healthcare

providers performing “double duty,” treating applicants’

medical needs while also attempting to decipher

Medicaid requirements and coach patients through

the administrative process. One adolescent-medicine

physician recalls spending half an appointment

attempting to explain to a soon-to-be nineteen-year-old

patient how to seek a continuation of benefits based on

her own situation as opposed to parents’ or guardians’

household income, which previously would have

controlled. Narrative of Adolescent Med. Physician,

Austin, Tex. (email received Jan. 9, 2021)

(contributed on condition of anonymity). Because the

28

patient was at risk of losing access to care, this

physician took time earmarked for treating medical

needs and spent it, instead, helping the patient

work through administrative hurdles to securing

ongoing Medicaid coverage.

It is experiences like this that have spurred the

development of MLPs. MLPs take a holistic, team-based

approach to treating individuals who are often within

Medicaid’s target population. The integrated services

allow clinicians to focus on providing healthcare

while attorneys and administrative support staff help

patients with other challenges, such as obtaining and

maintaining the Medicaid benefits for which they are

eligible.

Regina Rogoff, Chief Executive Officer of the

People’s Community Clinic, recalled an MLP success

story involving a patient who lost access to health

coverage for months despite being eligible. Narrative

of Regina Rogoff, Chief Exec. Officer, People’s Cmty.

Clinic, Austin, Tex. (email received Dec. 6, 2020). The

patient’s mother had missed the deadline to renew—a

difficult process, see supra Part I.C. For months, the

mother filled out paperwork to reapply for Medicaid,

called Medicaid officials, and even attended two

hearings to renew her disabled, adult child’s coverage.

Eventually, the MLP attorney who had been assisting

with the appeals process identified an alternative

strategy to maintain the daughter’s coverage. Without

that attorney’s expertise, however, that family would

not have even been aware of the alternative pathway.

29

Even if a would-be Medicaid recipient has the

good fortune to locate an MLP, it may be too late in

the process to correct administrative errors by the

patient or erroneous denials by the state Medicaid

agency. Daphne McGee, a staff attorney with the

Texas Legal Services Center who works in its MLP

with the HOPE Clinic is often unable to assist clients

who come to her confused about denied or terminated

Medicaid benefits simply because the clock has run out

on the time to appeal. Narrative of Daphne McGee,

Staff Att’y, Tex. Legal Servs. Ctr. & MLP Att’y, Asian

Am. Health Coalition of the Greater Hous. Area d/b/a

HOPE Clinic, Hous., Tex. (email received Jan. 29,

2021). McGee notes that when she first meets clients,

they often have no idea that a right to appeal even

exists. As a result, this first meeting may occur long

after the window has closed for any appeal of a denial

of eligibility or treatment. MLPs seek to mitigate this

situation by integrating attorneys at the point of care,

enabling clinicians to request that an attorney join the

care team for a given patient. But if clients have no

idea appeal options exist, they may not mention their

Medicaid denials, leaving little that even an interprofessional team can do to help.

Even with timely MLP assistance, some patients

who meet substantive Medicaid eligibility requirements

lose benefits due to the inscrutability of the Medicaid

administrative system. Wesley Hartman, a staff

attorney with the Texas Legal Services Center who

works in its MLP with the KIND Clinic, recalls being

unable to resolve an administrative obstacle faced by a

30

sixteen-year-old client. See Narrative of Wesley

Hartman, Staff Att’y, Tex. Legal Servs. Ctr., & MLP

Att’y, Tex. Health Action d/b/a KIND Clinic, Austin,

Tex. (email received Jan. 29, 2021). The client’s

application had been granted initially under the name

of her mother—with whom she no longer lived nor had

contact. Medicaid repeatedly denied the client’s

attempts to obtain coverage under her own name.

Although Hartman worked with her to challenge the

denials, their efforts were unsuccessful. As a result,

the client lost two years’ worth of Medicaid benefits. To

this day, Hartman states, it is “still unclear what . . .

happen[ed].”

Not every Medicaid applicant can be an MLP

client. And, as the preceding narrative shows, having

that type of legal support does not guarantee a

successful administrative result. For the vast majority

of would-be Medicaid recipients who pursue coverage

without professional assistance, the demands can feel

overwhelming and insurmountable. Dr. Feba Thomas,

a physician at the People’s Community Clinic,

previously had perceived Medicaid as a “lost cause”

because she saw how “countless” patients struggled to

navigate the Medicaid administrative system on their

own, too-often losing desperately needed care despite

meeting substantive eligibility requirements. See

Narrative of Feba Thomas, MLP Physician, People’s

Cmty. Clinic, Austin, Tex. (email received Dec. 23,

2020). In particular, Dr. Thomas has witnessed that

individuals “who struggle to make rent, transition

from couch to car, live in friend’s houses, or live on

31

the street often have the most difficulty gathering

documents”; and for those “with mental health or

complex medical issues, it’s often hard for them to even

keep deadlines in mind.” These realities of patients’

lives exacerbate the administrative challenges of

accessing Medicaid benefits for which they are eligible.

One People’s Community Clinic employee (who is

not an attorney) experienced confusion and hit

administrative walls while attempting to navigate the

Medicaid system on behalf of her own daughter, who

suffered from asthma and had been hospitalized

multiple times. Narrative of Lina Diaz, MLP Nationally

Registered Certified Med. Assistant, People’s Cmty.

Clinic, Austin, Tex. (email received Jan. 6, 2021)

(recounting colleague’s experience). Although the

mother worked in the healthcare field at a clinic that

specializes in treating Medicaid’s target population,

she was uncertain how to appeal a Medicaid denial,

and she also did not realize that her daughter could

qualify for other programs. After re-applying and

receiving another denial on the basis of her income, the

daughter ultimately qualified for CHIP coverage when

the household expanded after the mother had another

child.

Heidi Russell, an MLP oncologist at Texas

Children’s Hospital who teaches health policy to

medical and graduate students, shared a revealing

anecdote. See Narrative of Heidi Russell, MLP

Oncologist, Tex. Child. Hosp., Hous., Tex. (email

received Jan. 20, 2021). As an exercise, she asked

her students—all senior undergraduates and students

32

pursing advanced degrees—to fill out a Medicaid

application so that they could experience firsthand

what their patients encounter. She recalls that it was

“nearly impossible” for most of them to complete the

task successfully. In fact, only one or two students

found the proper form for assessing their own

eligibility. And when asked to complete forms as

though they were primarily Spanish-speaking

individuals, students found that websites were “almost

entirely” in English despite the students’ following

Spanish prompts.

These firsthand accounts from MLP clinicians,

staff, and lawyers confirm the complexities of the

Medicaid system and the very real administrative

hurdles that impede access to care in a variety of

ways. Additional burdens in the form of reporting

requirements for work programs are likely to make

this problem even worse.

III. WORK PROGRAMS’ REPORTING REQUIREMENTS

ADD ADMINISTRATIVE OBSTACLES TO COVERAGE

THAT MAY DISQUALIFY OTHERWISE-ELIGIBLE,

WORKING RECIPIENTS AND UNDERMINE HOLISTIC

EFFORTS TO AMELIORATE HEALTH DISPARITIES.

Medicaid’s existing administrative components

present significant obstacles to healthcare coverage

for eligible applicants, primarily in the form of large

amounts of paperwork, assumption of applicant access

to technology or transportation, and confusing

application requirements. Work programs’ reporting

33

requirements would substantially exacerbate these

already-present problems, causing even more eligible

recipients to lose coverage for non-substantive reasons.

And that result cannot be squared with Medicaid’s

purpose, as the court below correctly concluded. See

Pet. App. 9a-10a, 19a.

Work-requirement systems implemented by

states like Arkansas comprise two distinct

requirements. First, Medicaid recipients who are not

otherwise exempt cannot maintain monthly coverage

without clocking a set number of hours working or

participating in specified activities, such as community

service or job training. Sommers et al., supra, at 1522.

Second, those workers must report the number of

qualifying hours of work or participation. Id.10

Recent research has shown that the vast majority

of Medicaid recipients are already working sufficient

hours to satisfy the work requirement or are otherwise

exempt from the work and reporting requirements. Id.

at 1526; Lee, supra. Indeed, estimates suggest that

95% of Medicaid recipients in Arkansas and 94% of

Medicaid recipients nationally either have sufficient

hours of work or qualifying activities or would be

exempt from reporting. Sommers, supra, at 1526;

10

In some cases, state officials used existing data sources to

confirm employment status and exempt recipients from reporting

requirements, but not work requirements. See Robin Rudowitz

et al., February State Data for Medicaid Work Requirements in

Arkansas, KAISER FAM. FOUND. 3 (Mar. 2019), http://files.kff.

org/attachment/State-Data-for-Medicaid-Work-Requirements-inArkansas.

34

Lee, supra. For the more than 60% of Medicaid

recipients who already are working full-time or parttime, see Lee, supra, the work requirement would

have no impact on daily life. But the reporting

requirement could create a substantial possibility of

lost coverage. Garfield, Implications, supra, at 4.

First, many recipients are likely to be confused

about whether and how work requirements apply to

them. Ian Hill et al., New Hampshire’s Experience with

Medicaid Work Requirements, URB. INST. 11 (Feb. 2020),

https://www.urban.org/sites/default/files/publication/

101657/new_hampshires_experience_with_medicaid_

work_requirements_v2_0_7.pdf (recipients unaware

of work and reporting requirements cited illiteracy,

homelessness, and inability to understand complex

language);11

see

Sommers, supra, at

1529

(“[M]isinformation and confusion” impeded successful

implementation of Arkansas’s work requirements.).

Second, the reporting process is likely to challenge

many recipients. For example, to satisfy Arkansas’s

reporting requirement, recipients needed to document

qualifying hours online each month. Sommers, supra,

at 1522. And, as previously discussed, access to a

computer and stable internet connection is not

something all Medicaid recipients have at home. See

supra Part I.

11

This was a particular problem in New Hampshire, where

an inconsistent rollout of the work requirement system in 2018

resulted in at least two recipients receiving letters from the state

that contradicted each other as to whether the recipient was

exempt from the requirements. Ian Hill, supra, at 11.

35

Evidence shows that these two burdens result in

lost coverage by recipients who in fact satisfy work

requirements or are exempt. In Arkansas, the number

of recipients who lost coverage after the work

requirements were imposed was substantially more

than the number of non-working and non-exempt

recipients who previously had been covered, suggesting

that “barriers to reporting data to the state . . . were

the main cause for coverage losses in 2018.” Sommers,

supra, at 1529.

Work and reporting requirements also threaten

to frustrate federal initiatives, such as Federally

Qualified Health Centers (FQHCs), that take a

holistic approach to mitigating health disparities in

vulnerable populations, including those covered by

Medicaid. FQHCs provide primary health services

for the medically underserved, including more than

one in six Medicaid beneficiaries nationally. See

Sara Rosenbaum et al., Community Health Centers:

Growing Importance in a Changing Health Care

System, KAISER FAM. FOUND. (Mar. 9, 2018),

https://www.kff.org/medicaid/issue-brief/communityhealth-centers-growing-importance-in-a-changing-healthcare-system/. They also are required by law to assist

patients in establishing eligibility for federal, state,

and local programs that provide or support medical,

social, housing, educational, and other related services.

See 42 U.S.C. § 254b(b)(1)(A)(iii), (iv). To fulfill those

federal mandates, FQHCs integrate legal services

like those collaboratively practiced by amici MLPs.

See Service Descriptors for Form 5A: Services

36

Provided, HEALTH RES. & SERVS. ADMIN. 23-24,

https://bphc.hrsa.gov/sites/default/files/bphc/program

requirements/scope/form5aservicedescriptors.pdf (last

visited Feb. 21, 2020). The administrative burdens

that inhere in work programs—and often require

professional assistance to ensure compliance—would

deplete integrated services that could instead be used

to ameliorate healthcare disparities experienced by

FQHC patients. FQHCs can better fulfill federal

objectives by focusing, for example, on obtaining

healthy living conditions for a child with asthma

worsened by the presence of mold in the home, rather

than assisting appeals of Medicaid benefits terminated

due to administrative-compliance barriers in work

programs.12

Regardless whether a work requirement would

increase employment among Medicaid recipients or

improve “mental, physical, and emotional health,”

CMS LETTER SMD 18-002, supra, it is clear that

reporting requirements will substantially impede

access to care. Given the vulnerability and serious

medical needs of Medicaid’s target population, the

12

Diverting integrated resources to administrative tasks

also would undermine evolving forms of Medicaid financing that

reflect increasingly prevalent initiatives to improve health

outcomes and value-based care by considering “social determinants

of health”—the conditions in which patients live, work, learn,

and play. See generally, e.g., Jennifer Trott et al., Financing

Medical-Legal Partnerships: View from the Field, NAT’L CTR.

FOR MEDICAL-LEGAL P’SHIP 1 (Apr. 2019), https://medical-legal

partnership.org/wp-content/uploads/2019/04/Financing-MLPsView-from-the-Field.pdf.

37

federal government should not encourage states

to experiment with requirements that threaten to

exacerbate the problem of lost coverage for reasons

unrelated to beneficiaries’ actual eligibility.

---------------------------------♦---------------------------------

CONCLUSION

The judgment of the United States Court of

Appeals for the District of Columbia should be

affirmed.

Respectfully submitted,

KEEGAN WARREN-CLEM

KASSANDRA GONZALEZ

MEDICAL-LEGAL PARTNERSHIPS,

TEXAS LEGAL SERVICES

CENTER

1920 E. Riverside Dr.

Suite A-120, #501

Austin, TX 78741

ERIN GLENN BUSBY

Counsel of Record

LISA R. ESKOW

MICHAEL F. STURLEY

UNIVERSITY OF TEXAS

SCHOOL OF LAW

SUPREME COURT CLINIC

727 E. Dean Keeton St.

Austin, TX 78705

(713) 966-0409

ebusby@law.utexas.edu

February 25, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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