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.