A federal appeals court in Washington last week affirmed the invalidation of the Arkansas "work" requirement in Medicaid. It did so by the unanimous vote of a three-judge panel.
The judge writing the opinion was a Ronald Reagan nominee. Another participating judge was a Jimmy Carter leftover. Only one was a Barack Obama nominee, lest conservatives wanted to blame Kenya for an out-of-control federal judiciary.
The court ruled on the overpoweringly obvious basis of the law and the facts.
The Arkansas "work" requirement did not meet the federal Medicaid statute's plain requirement that all state waivers to make changes in the federal-state program must promote health-care availability for poor people.
By mean-spirited design, the Arkansas debacle established precisely the opposite. It was intended as a barrier to health-care availability for poor people. It was a "work" requirement that was only nominally about work--thus my quotation marks. It really was about requiring poor and disenfranchised people to do government reporting or get thrown off.
The eventual point was to placate right-wing Republican state legislators into continuing to fund Medicaid expansion. These insensitive ideologues conceptually abhor Obamacare's Medicaid expansion to 138 percent of the poverty level, an unlivable wage.
They believe poor people ought to yank themselves by their bootstraps into their welfare Cadillacs to drive themselves to the hospital for care they ought to pay for themselves or go without.
Gov. Asa Hutchinson admirably saved the Beebe-era "private option" by rebranding it "Arkansas Works." The "work" requirement was essential to any credibility for the brand.
Medicaid expansion covers the working poor, meaning people doing low-wage work, often seasonal or part-time. They might have a job one week, but not the next.
The Arkansas program asked poor and disenfranchised people to negotiate a user-unfriendly website portal to assert by a mouse-click or two that they were working or looking hard for a job, or volunteering. Later, amid criticism, the program was adapted to add a telephone reporting option.
A lot of people living hand-to-mouth on unreliable employment are not always up to date on the latest government esoterica. They may not have had the time or opportunity to gain mouse-wielding proficiency in command of the Internet.
In a governor's debate in 2018, challenged on these points by Democrat Jared Henderson, Hutchinson let slip the truth.
He said that Henderson was complaining about 19,000 people removed from the program when, absent the "work" requirement, legislators might well axe the whole program and take health insurance from 200,000.
The governor essentially was saying the "work" requirement was conservative Republican window-dressing.
The way to blend work and medical care is not to deny health care for lack of work. If you really want a person to take work, you don't want him to lack treatment for illness. You want him well. It's an extraordinarily punitive and cruel notion to deny him a doctor's appointment for not having a current job.
A Democratic governor of conservative Montana--Steve Bullock, who'd probably be a better Democratic presidential candidate now than what we have--explained when he was in Little Rock a couple of years ago that he won conservative Republican legislative support for Medicaid expansion by tying Medicaid-related notices to job-opportunity notices. Montana thus does not punish joblessness with unhealthiness; it encourages employment and good health.
Arkansas was the first state to implement a "work" requirement. Kentucky passed such a law first, but Arkansas moved more quickly. Then Kentucky elected a Democratic governor who knew better than to keep the illegal program.
Eventually Arkansas was defending the program as a worthy inventory of authorized recipients, not as a "work" requirement. A simple inventory would be fine, since the state pays monthly private insurance premiums. These often are transient people.
But if it were simply an inventory, someone purged on account of not reporting could be restored to coverage if showing up at a clinic or hospital. The "work" requirement kicked folks off until the next calendar year.
Hutchinson finds it necessary to continue speaking fancifully of the program as if it's valid and humane.
He told this newspaper, "Arkansas implemented a work requirement in order to help recipients get worker training and job opportunities while receiving benefits. It is difficult to understand how this purpose is inconsistent with federal law. The court's ruling undermines broad public support for expanded health-care coverage for those struggling financially."
There is no political reason for Hutchinson to give up his rhetorical cause--i.e., his window-dressing--just yet.
The U.S. Supreme Court conceivably could take this case, meaning a 4-to-4 vote with Chief Justice John Roberts deciding is not out of the question.
Medicaid expansion appropriations still require three-fourths majority votes every year in the Arkansas General Assembly. Passage will be easier if meanness still has a fighting chance.
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John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.
Editorial on 02/18/2020