A federal district court judge seemed skeptical during oral arguments Tuesday of whether the Trump administration’s approval of work requirements advances the mission of New Hampshire’s Medicaid program. The same judge ruled against two other state work requirements earlier this year.
The New Hampshire requirements, which could have resulted in thousands losing coverage in August, were delayed earlier this month for an additional 120 days due to state outreach problems in educating enrollees about the requirements.
The new timeline would start the requirements after Sept. 30, with notices going out in November and the first potential coverage suspensions in December.
Judge James E. Boasberg, who heard oral arguments before the U.S. District Court of the District of Columbia, will decide whether the state can start enforcing the 100-hour-a-month requirements for some individuals sometime before then.
Boasberg said at the conclusion of oral arguments that he will determine “imminently” when he will rule but did not provide a precise timeframe.
The federal defendants pushed for a later ruling to allow time for approval of an amended waiver, while the plaintiffs said Boasberg should decide as soon as possible.
“It doesn’t make sense for the court to intervene prematurely and interrupt that process,” said Matthew Charles Skurnik of the Department of Justice, requesting a mid-November ruling. He said that it’s even “possible that the state may further delay implementation.”
The New Hampshire lawsuit was brought against the Trump administration and the state by four Granite State individuals represented by the National Health Law Program, New Hampshire Legal Assistance and National Center for Law and Economic Justice.
“It’s a risk of real injury here if there is a delay,” said Catherine McKee, senior attorney at the National Health Law Program.
McKee said a delay in a decision was unnecessary because the plaintiffs are challenging the federal approval of the waiver itself, not how it is being implemented. Because of this, she argued, there’s no need for a delay in deciding whether to rule against the program.
Lindsey Courtney, litigation counsel at the New Hampshire Attorney General’s Office, who spoke on behalf of the requirements for the state, said officials don’t need an immediate ruling but would appreciate some clarity.
She said the state is discussing the parameters of an amendment to the waiver with the Centers for Medicare and Medicaid Services on Tuesday but that she didn’t have a firm timeline for an approval.
“It’ll take many months till the point we get a decision from CMS,” she said.
Boasberg agreed there was unlikely to be an approval before people could be kicked off the program, which would be as early as December.
“Do you think they would have an approval of the amendment before that time?” he asked Courtney.
Courtney called it unlikely.
A key theme in this case and in the two earlier work requirement cases heard this year by Boasberg is whether HHS considered coverage losses in its approval of the waivers.
In 2018, about 17,000 enrollees were dropped from Arkansas’s Medicaid program for noncompliance with its work requirements. Kentucky’s program never went into effect.
Boasberg seemed to doubt New Hampshire’s prediction that the state would not see coverage losses.
“That’s the laboratory. There’s the results,” he said, pointing to the Arkansas numbers.
Boasberg asked whether the government had considered that coverage losses could be greater in New Hampshire than in Arkansas and Kentucky because it proposed to cover a greater age range and the requirements would be stricter.
Skurnik of the Justice Department said New Hampshire has a smaller population so this is unlikely.
Courtney said the state had implemented new outreach measures to prevent this from happening if the program takes effect later this year. She said New Hampshire is having workers go door-to-door, make targeted phone calls, go into the communities, and hold office hours to limit noncompliance.
McKee of the National Health Law Program said that regardless of what changes the state makes, it’s in the court’s interest to rule now.
While Boasberg ruled against the two other work requirement programs, it’s not a guarantee he will do the same for New Hampshire or as quickly as the plaintiffs requested.
Skurnik said he recognized that this case was similar to those and that he didn’t “intend to sway the court from its prior conclusions,” but rather would focus on what makes this different from those states.
“The federal government stands by this approval and thinks this approval is lawful,” he said.
The U.S. Court of Appeals for the District of Columbia Circuit is expected to consider Arkansas and Kentucky’s waiver approvals by the end of October.
CMS is not expected to reconsider either program’s approach before that court’s decision, unlike in the New Hampshire case.
Some experts have speculated that additional litigation affecting other states, such as Indiana, could be filed in the coming months.
Indiana began the first steps of implementing its work requirements program July 1, but noncompliance will only be measured on a yearly basis so no one would lose coverage this year.
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