This year, many states have continued to pursue federal approval for a range of proposals affecting Medicaid coverage, such as seeking modifications to the Affordable Care Act’s (ACA) Medicaid expansion or adding Medicaid work requirements.
Currently, nine states have implemented expansion through Section 1115 waivers to impose conditions such as monthly premiums, lock-out provisions for non-payment, and work requirements on certain Medicaid enrollees. While some Medicaid waivers approved by the federal government that include work requirements have faced legal challenges, other states — including those that have not implemented Medicaid expansion — are continuing to seek federal approval to condition Medicaid eligibility on work, with nine additional proposals currently pending.
The following is an overview of some of the current state Medicaid coverage waiver activity and other state actions affecting health coverage, including Tennessee’s recent block grant proposal.
State Changes to Medicaid Expansion Passed by Ballot Initiatives
Earlier this year, Idaho’s governor signed into law a number of changes to the Medicaid expansion ballot measure approved by voters in November 2018. One component of the law required the state to seek a 1332 waiver to enroll individuals eligible for expanded Medicaid who had income between 100 to 138 percent of the federal poverty level (FPL) in subsidized exchange coverage, although these individuals could opt for Medicaid coverage instead. However, in late August the Centers for Medicare & Medicaid Services (CMS) rejected the state’s waiver request, citing that it did not meet the deficit neutrality guardrails required of 1332 waivers. State officials have indicated that they will resubmit the application with additional information, although CMS noted in its letter that even a revised application would likely still not demonstrate compliance with those guardrails. Another aspect of Idaho’s law modifying the voter-approved Medicaid expansion directs the state to seek a waiver to implement Medicaid work requirements for most expansion enrollees, and the state recently submitted this 1115 waiver request for federal approval. If the waivers are not approved by Jan. 1, 2020, the state law requires implementation of traditional Medicaid expansion.
Similar to Idaho, voters in Utah passed a measure last November to implement Medicaid expansion, and in February state legislators enacted a law that significantly alters the voter-approved expansion in a number of ways. The law requires the state to seek a series of waivers, outlined in the state’s implementation toolkit, through a potentially four-step process, depending on what CMS approves. In March, CMS approved the state’s first request — the Bridge Plan — to expand Medicaid to only those earning 100 percent of FPL at the state’s regular federal medical assistance percentage (FMAP) rate, include an enrollment cap if projected costs exceed state appropriations, require individuals with access to employer-sponsored insurance (ESI) to enroll in that coverage with Medicaid premium assistance, and add work requirements in 2020. In May, the state submitted the second waiver proposal for the enhanced FMAP that the ACA provides for the expansion population while keeping the expansion eligibility level at 100 percent FPL, but CMS indicated that it would not provide the enhanced FMAP for a partial expansion. This second proposal also maintains the enrollment cap, work requirements, and ESI premium assistance from the initial waiver, adds in 12-month continuous eligibility and lock-out provisions for non-compliance with certain activities, and notably requests to implement a per capita cap model for receiving federal Medicaid funds for the new eligibility group. Although CMS did not approve the enhanced FMAP for the partial Medicaid expansion, the governor issued a statement that the state would move forward with requesting approval of the other proposal components, and the state submitted the waiver request in late July. If CMS does not approve this per capita cap proposal, the state plans to request permission to implement a “fallback” plan — the third step in the state’s implementation plan — that expands Medicaid to the ACA’s 138 percent of FPL eligibility threshold and provides the state with the enhanced expansion FMAP, and includes work requirements, an enrollment cap, and lock-out provisions. The final option – if this third plan is not approved – is implementing traditional Medicaid expansion through a state plan amendment, as was passed by the voters.
Nebraska was the third state in 2018 to pass Medicaid expansion through a ballot initiative, and while state legislators there did not follow the same route as Idaho and Utah, expansion in Nebraska has not yet occurred because the state intends to seek modifications to the expansion. State officials submitted a state plan amendment for expansion this past April, indicating the state would seek a waiver to modify its existing managed care program to include the expansion population and provide different benefit packages based on whether enrollees complete certain wellness requirements. Expansion will occur no later than Oct. 1, 2020, and the plan eventually will also incorporate work requirements for eligible individuals wishing to remain in the “prime” coverage option, which offers more robust benefits such as dental and vision services.
Activity in Medicaid Expansion States
Montana originally implemented Medicaid expansion through a waiver because the state requires certain individuals to pay premiums. The expansion was scheduled to sunset in July of this year, but in April the legislature passed a bill, signed by the governor in May, to continue expansion that added work requirements for most enrollees. The state’s waiver amendment also seeks to maintain the original waiver’s implementation of 12-month continuous eligibility and modify the monthly premium structure to be based on the amount of time an individual is enrolled. The federal comment period for the waiver amendment recently closed.
In Virginia, Democratic Gov. Ralph Northam and Republican state legislators negotiated a compromise to expand Medicaid with work requirements in 2018. Coverage became effective in January of this year, but the work requirements were not implemented as the state needed to seek federal permission through a waiver. The state is now negotiating to receive federal funding for employment supports, as Northam’s administration has indicated that the state cannot afford to implement the work requirements without these federal dollars. Some Republican state legislators are characterizing the request for this federal funding as an effort to backtrack on the compromise struck last year between them and the governor.
While New Mexico originally implemented the ACA’s traditional Medicaid expansion, the state sought and received approval in December 2018 to add premium and copayment requirements and waive retroactive eligibility for certain expansion enrollees. However, under Gov. Lujan Grisham, the state is now requesting to amend the waiver and remove the copayments, premiums, and waiver of retroactive eligibility.
Activity in Non-Medicaid Expansion States
Like last year, voters in some nonexpansion states will have the chance to consider expansion in 2020. Groups in Oklahoma indicated that they have gathered enough signatures to put expansion before voters in 2020. Medicaid expansion proponents in other states — specifically Missouri and South Dakota — are also attempting to place the issue before voters in 2020. Additionally, in Mississippi’s upcoming gubernatorial election in November, voters will decide between a Republican who opposes expansion and a Democratic who supports it.
North Carolina’s Democratic Gov. Roy Cooper vetoed the state budget in June in part because it did not include Medicaid expansion. However, in mid-September state legislators in the House voted to override the governor’s veto. While the Senate still needs to hold a vote on the veto override, a bill to expand Medicaid with work requirements and premiums has been added back to the legislative calendar.
Georgia is currently drafting two waiver proposals as part of a law signed by the governor in March. The state is expected to submit an 1115 waiver proposal to expand Medicaid to only those earning 100 percent of FPL, as well as seek federal approval through a 1332 waiver to implement a reinsurance program.
Beyond continuing efforts to expand Medicaid or modify laws to do so, block grants have surfaced again. Tennessee has developed a draft proposal to shift federal funding for most of the state’s Medicaid program into a version of a block grant, which would be a significant change and is based on a state law passed earlier this year. Under the plan, the state would receive a capped amount of federal Medicaid funding for low-income parents, children, and individuals with disabilities. Unlike a traditional block grant — which the state acknowledges its plan differs from — the state is requesting additional funding if enrollment rises above a certain threshold, but the funding amount would not be reduced if enrollment declined. Additionally, the funding cap does not include state spending on individuals dually eligible for Medicaid and Medicare, disproportionate share hospital (DSH) payments, outpatient prescription drug expenses, or administrative costs, and any savings achieved from the financing model would be divided evenly between the state and the federal government (the state’s current federal match rate is 65 percent). The state is also requesting additional flexibilities, such as modifying the amount, duration, and scope of benefits without federal approval or public comment and implementing a closed formulary for prescription drugs. The waiver request also proposes to exempt the state from federal regulations for managed care plans. Some policy analysts have identified that federal law does not allow Medicaid’s financing model to be restructured through the 1115 waiver authority, and if CMS does approve the waiver it is expected to face legal challenges. Tennessee also submitted a separate waiver request in December 2018 seeking to implement Medicaid work requirements for low-income parents and caretakers, which is still awaiting federal approval.
Legal Challenges to Medicaid Work Requirements
Medicaid waivers containing work requirements approved by CMS have been halted by court rulings earlier this year in Arkansas, Kentucky, and New Hampshire, and a legal challenge was recently filed against Indiana’s approved work requirements. Earlier this month, a three-judge panel heard oral arguments on the federal government’s appeal of the Arkansas and Kentucky rulings, and the judges noted that the administration had not considered the coverage losses resulting from work requirements. The ruling by this federal appeals court will have significant implications for Medicaid work requirements overall, and while they did not provide specific information about timing for the decision, it is expected before the end of the year. The court challenges are already beginning to have some implications — on Oct. 17, 2019, Arizona informed CMS that it would postpone implementation of the state’s approved Medicaid work requirements due to the litigation in other states. Additionally, a recent study conducted by the Government Accountability Office (GAO) recommended that CMS should improve its oversight of the administrative costs associated with work requirement waivers, which GAO found can be significant, ranging from under $10 million to over $250 million.
In addition to the next round of court decisions on Medicaid work requirements, states are waiting to see if federal guidance on Medicaid block granting will be issued soon — which is currently under review at the Office of Management and Budget. Similar to how states are seeking to implement Medicaid work requirements despite legal challenges, if CMS provides guidance and approves Tennessee’s block grant proposal, other states may also pursue this financing model, even if the block grant is challenged in court. Also, whether CMS and states that have been hesitant to expand will be able to find a middle ground on Medicaid expansion remains a question, and how decisions play out in Idaho and Utah in particular, will be significant for future actions. Similar to this past year, in 2020 states are expected to continue to seek new ways to test the boundaries of Medicaid coverage waivers and manage their Medicaid programs.