Indiana's request to have a Medicaid work requirement could be legally challenged because state officials did not allow for any public comment on the controversial request.
The state asked for the amendment when applying to renew its Healthy Indiana Plan 2.0 waiver. Indiana wants Medicaid beneficiaries to be employed or searching for work to be eligible for the program.
In a notice, the CMS said Indiana's request met the necessary statutory requirements. But St. Louis University health law professor Sidney Watson believes the CMS, which is now led by a proponent of work requirements, is not following its own rules.
The Affordable Care Act requires a 30-day public notice and comment period for 1115 waiver requests. The public comment on Indiana's work requirement doesn't end until June 23, but Indiana submitted its request to the CMS on May 25, a day after it announced its proposal to the public. A spokesman for Indiana's Medicaid agency deferred a request for comment to the CMS. A CMS spokesman did not return calls.
Although the CMS in a 2012 guidance exempted amendments to approved 1115 waivers from the notice-and-comment process, the renewal application for HIP 2.0 has not yet been approved. Amendments to pending requests aren't subject to the guidance.
"Since renewals are subject to notice and comment and this essentially changes the renewal, I think there is a strong argument that it should be subject to notice and comment," said Judy Solomon, vice president for health policy at the Center on Budget and Policy Priorities.
"This appears to be a reversal of that policy," said Joan Alker, executive director of the Georgetown Center for Children and Families, adding that the Obama administration adhered to the guidance. "Clearly the state is not looking for meaningful feedback."
While skipping the full notice-and-comment period could open Indiana's amendment up to litigation, it wouldn't stop the work requirement from going into effect, only delay it. The CMS could have Indiana resubmit the request after it complies with the comment rules, according to Jennifer Evans, a managing partner at the law firm Polsinelli.
Several other states, including Arizona, Kentucky, Maine and Ohio are among those looking to have work requirement provisions.
HIP 2.0 was developed by CMS Administrator Seema Verma and federal Medicaid director Brian Neale when they worked in the administration of Indiana Gov. Mike Pence, who is now vice president. The plan requires members to make premium contributions, have health savings accounts, and face a benefit lockout if they don't pay premiums.