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Excerpted From: Kathrin Lozah, Pushing Past the Pandemic: Re-evaluating Tribal Exemptions to Medicaid Work Requirements, 47 American Journal of Law & Medicine 333 (2021) (65 Footnotes) (Full Document)


KathrinLozahIn recent years, amid the skyrocketing cost of healthcare, the Secretary of the Department of Health and Human Services (“HHS”) approved several Section 1115 demonstration projects from states seeking to implement Medicaid work requirements in an effort to decrease healthcare spending. The Secretary has stated that these projects promote the objectives of the Medicaid program because they improve beneficiary health-outcomes, address behavioral and social factors that influence health outcomes, and incentivize beneficiaries to engage in their own health care to achieve better health outcomes. In response to these approvals, Native American tribes and members of Congress petitioned the Centers for Medicare and Medicaid Services (“CMS”) to exempt tribal members from the Medicaid work requirements. On January 17, 2018, in response to these concerns, CMS issued a letter to tribal leaders stating that it could not grant exemptions for tribal members because of civil rights concerns. CMS's Administrator has been quoted as stating that such exemptions would be “race-based” and may therefore lead to civil rights issues. The Native American tribes and members of Congress have maintained that tribal members should be granted exemptions due to the unique legal status of tribes and the well-established protections given to tribes. This recent development article addresses the status of current case law surrounding Medicaid work requirements, the application of general legal requirements to tribes, and the implications of COVID-19 on tribal members subject to work requirements. As the current case law framework suggests, (1) CMS's argument that it cannot approve the exemption because it is race-based is misled because federal jurisprudence has established that tribes are classified as political entities and not racial groups; (2) if CMS fails to approve the exemption, it may be subject to litigation asserting that the failure to approve the exemption frustrates the purpose of the Medicaid statute; and (3) failure to provide the exemption would further exacerbate health disparities and worsen health outcomes in tribal communities.

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The Secretary may only approve Section 1115 demonstration projects related to Medicaid work requirements if doing so is “likely to assist in promoting the objectives” of the Medicaid statute. If CMS does not exempt Indians from Section 1115 demonstration projects instituting mandatory community engagement and work requirements, it opens itself up to arguments that it is putting Indians at-risk of losing valuable healthcare funds. Requiring work or work-related activities as a condition of Medicaid eligibility would also make it harder for Indians to stay covered and it would make it harder for IHS to provide needed services to Indians, especially in light of the pandemic.

The rise of COVID-19 has only further exacerbated these health needs. The Navajo Nation, which occupies the largest reservation in the country, has more per capita cases and deaths than any U.S. state. Although Indians only make up 9% of the population of New Mexico and 4% of the population of Arizona, they account for 75% of COVID-19 deaths in New Mexico and 12% in Arizona. This disproportionate death rate is likely amplified in this community due to understaffed hospitals, increased likelihood of comorbidities and inability to social distance due to crowded housing conditions. COVID-19 also led to an increase in unemployment across the country and those who were not working before the pandemic are unlikely to have moved into employment during the downturn. Additionally, tribal reservations have faced difficulties receiving adequate supplies from the federal government.

In response to the current public health emergency, the Families First Coronavirus Response Act (“FFRCA”) includes “maintenance of eligibility” protections to ensure continued coverage for Medicaid enrollees and no states are currently implementing work requirements. This is only a temporary measure and does not address the long-term solution of a permanent exemption for tribes or even going as far as ultimately eliminating the Medicaid work requirements entirely. Additionally, many individuals who currently have private job-based coverage may become newly eligible for Medicaid if they lost their jobs during the economic downturn. Unfortunately, for some individuals, Medicaid coverage options will be more limited for those in states that have not adopted the ACA Medicaid expansion.

In a January 28, 2021 executive order, President Biden directed relevant agencies to review waivers and waiver policies that may reduce coverage or otherwise undermine Medicaid, including work requirements. If it is determined that work requirements are an impediment to health care access, this could be critical not only in providing exemptions but possibly in abolishing work requirements entirely. If agencies decide to maintain work requirements or further limit exemptions, it is likely that this action will reinvigorate a new wave of litigation contesting the decision. Either way, these pending actions under the Biden Administration will have lasting implications not only for tribal members but also for Medicaid enrollees at large.

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