With COVID-19 cases rising in the US, issues surrounding access to testing and treatment for uninsured individuals have taken on heightened importance. Efforts to limit the spread of the coronavirus in the United States are dependent on people who may have been exposed to the virus or who are sick getting tested and seeking medical treatment. However, the uninsured are likely to face significant barriers to testing for COVID-19 and any care they may need should they contract the virus.

In 2018, there were nearly 28 million nonelderly people in the US who lacked health insurance. States that have not expanded Medicaid under the ACA generally have higher uninsured rates than states that did. Adults, low-income individuals and people of color are at greater risk of being uninsured. Most uninsured lack coverage because of high cost or because of a recent change in their situation that led to a loss of coverage, such as a loss of a job. Though most uninsured people have a full time worker (72%) or part-time worker (11%) in their family, many people do not have access to coverage through a job, and some people, particularly poor adults in states that did not expand Medicaid, remain ineligible for financial assistance for coverage.

Many uninsured adults work in jobs that may increase their risk of exposure to COVID-19. Most uninsured adults are working. Because of the jobs they have, uninsured workers may be at greater risk of exposure to the disease. Among the top ten occupations reported by the uninsured, many are service-oriented, such as drivers, cashiers, restaurant servers and cooks, and retail sales that cannot be performed through telework and bring the uninsured into regular contact with the public (Figure 1). In addition, data analysis finds that nearly six million adults who are at higher risk of getting a serious illness if they become infected with coronavirus are uninsured.

Uninsured workers who must take off work because they or family members are sick could face significant financial consequences. The U.S. does not have a federal law guaranteeing paid sick leave, and only 11 states and DC currently require paid sick leave. The burden of the lack of paid sick leave falls more heavily on low-wage and uninsured workers. In 2018, just over a quarter (26%) of uninsured workers said they had paid sick leave. Facing the risk of not getting paid or possibly losing their position if they do not show up for work, uninsured workers who are not provided sick leave may be reluctant to take time off, which could put their health at risk and could undermine efforts to control the spread of coronavirus.

Congress enacted legislation that would require certain employers to provide paid sick leave during this public health crisis; however, this new policy will not reach all uninsured workers. Under the emergency paid sick leave provisions in the Families First Coronavirus Response Act, workers in all public agencies as well as at some private firms with between 50 and 500 employees must be compensated at least a portion of their regular pay for 14 days if they take time off to address health needs for themselves or family members or to care for children due to school closures. If workers need more than 14 days off work to care for children due to school closures, they may be able to obtain up to 2/3 of their typical compensation for up to three months, but this policy does not extend to all workers and excludes employees at businesses with more than 500 employees. These new leave policies take effect two weeks after enactment of the legislation and the benefits are not retroactive, which means that uninsured workers who already took leave due to coronavirus would not be compensated for that time.

Barriers to COVID-19 Testing and Treatment

People who are uninsured will likely face unique barriers accessing COVID-19 testing and treatment services. Over half of the uninsured do not have a usual place to go when they need medical care, and one in five uninsured adults in 2018 went without needed medical care due to cost (Figure 2). Studies repeatedly demonstrate that uninsured people are less likely than those with insurance to receive services for major health conditions and chronic diseases. Without a usual source of care, the uninsured may not know where to go to get tested if they think they have been exposed to the virus and may forego testing or care out of fear of having to pay out-of-pocket for the test. The Emergency Medical Treatment and Labor Act requires hospitals to screen and stabilize patients with emergent conditions, however, they are not required to provide the care at no cost for patients who cannot pay, and they are not required to provide treatment for non-emergent conditions. As a result, uninsured individuals are less likely to use the emergency department than people with insurance, and the high costs of ED care may dissuade those without coverage from seeking care in that setting.

Uninsured individuals who contract COVID-19 and need medical care will likely receive large medical bills, even if they have low incomes and are unable to pay. When uninsured individuals need medical care, the costs can be prohibitive. Uninsured people pay the full cost of care, often at higher rates than those with insurance whose coverage may negotiate lower rates than a hospital otherwise charges. While some uninsured can get care at community health centers and other safety net providers, these providers have limited resources and capacity, and not all uninsured have geographic access to a safety net provider. Because the U.S. lacks a comprehensive hospital charity care policy, uninsured individuals who use hospital care will be billed for the services. Uninsured individuals who meet certain criteria may qualify for a hospital’s charity care program to reduce any hospital bills; however, not all hospitals are required to offer charity care programs, and among those that do, the eligibility criteria can vary widely. Fear of large and unaffordable medical bills can deter uninsured individuals from getting the care they need. In the context of a public health emergency, decisions to forego care because of costs can have devastating consequences.

Options for Reducing Barriers to COVID-19 Testing and Treatment

Federal legislation enacted in response to the coronavirus crisis ensures free testing for uninsured individuals. The Families First Coronavirus Response Act signed into law on March 18, 2020 includes a provision that gives states the option to expand Medicaid coverage to uninsured individuals in their state to provide coverage for COVID-19 diagnosis and testing with 100% federal financing. Although the coverage is limited to testing services, it will ensure more uninsured can access free testing, since the legislation also requires state Medicaid programs to cover diagnosis and testing for COVID-19 with no cost sharing. The legislation also appropriates $1 billion to the National Disaster Medical System to provide reimbursement to providers for the costs associated with diagnosis and testing of uninsured individuals. However, the legislation does not address coverage of COVID-19 treatment costs for people who are uninsured.

While the federal legislation will reduce barriers to COVID-19 testing, additional steps will be required to reduce barriers to accessing treatment for uninsured individuals who get sick. Expanding comprehensive coverage options to the uninsured would facilitate access to COVID-19 treatment for those who need it. Decisions by states that have not yet adopted the Medicaid expansion to do so would provide eligibility for coverage to the 2.3 million nonelderly uninsured adults in the coverage gap. In addition to adopting the Medicaid expansion, the federal government could provide flexibility to states to use Medicaid Section 1115 waiver and/or Section 1135 waiver authority to cover individuals who would not otherwise be eligible for coverage during the public health crisis, and potentially beyond. These waivers have been used in past emergencies to expand coverage. Additionally, states that operate their own health insurance marketplaces could provide a special enrollment period (SEP) in response to the coronavirus outbreak to allow uninsured individuals to enroll in coverage. Washington, Massachusetts, and Maryland recently announced coronavirus-related SEPs for uninsured residents. The federal government could also establish a national special enrollment period that would apply across all states, allowing many more uninsured to sign up for coverage.

In lieu of expanding coverage, providing funding to providers to expand COVID-19 services to uninsured individuals or to reimburse them for uncompensated costs they incur could also facilitate access to needed care. The supplemental appropriations legislation to finance the response to coronavirus included $100 million to community health centers to support increased access to testing and primary care services in medically underserved areas. However, this funding does not address costs to hospitals for treatment of infected individuals. Congress could appropriate additional funds to cover hospital costs related to treating uninsured individuals who contract the disease and need hospital care. Programs such as the National Disaster Medical System (NDMS) or Disproportionate Share Hospital (DSH) program could be used to reimburse hospitals for uncompensated costs; however, additional funding would be needed to cover the treatment costs related to COVID-19. Democratic Presidential candidate, Joe Biden, has proposed utilizing the NDMS by expanding its authority to reimburse providers for the costs of testing, treatment, and vaccines associated with COVID-19 for uninsured individuals and by providing full funding of those costs.

As COVID-19 spreads within the United States, questions have arisen over the potential costs people may face if they become severely ill and need treatment. While many large insurers have agreed to waive copayments and deductibles for COVID-19 tests, people with private insurance who face deductibles could still be on the hook for large treatment costs.

A new brief examines the potential cost of COVID-19 treatment to employer health plans and their enrollees by looking at typical spending for hospital admissions for pneumonia. It finds that for coronavirus patients with complications or comorbidities, treatment costs could top $20,000. Average out-of-pocket costs could exceed $1,300 for all admitted patients, including those without complications or comorbidities.

The analysis also estimates the likelihood of unexpected out-of-network charges (“surprise medical bills”) for coronavirus treatment, and finds that nearly 1 in 5 patients who have in-network admissions for pneumonia with major complications or comorbidities face out-of-network charges.

The analysis is part of the Peterson-KFF Health System Tracker, an online information hub dedicated to monitoring and assessing the performance of the U.S. health system.

For more data, analysis, polling and journalism on the COVID-19 pandemic, visit our special resource page on kff.org.

A new issue brief estimates potential coronavirus treatment costs to large employer health plans and their enrollees by looking at typical spending for hospital admissions for pneumonia. The analysis finds that, for pneumonia admissions with major complications and comorbidities, the average total cost is $20,292. In comparison, the average cost for a patient with no complications or comorbidities is $9,763.

Average out-of-pocket costs could exceed $1,300 for all admitted patients, including those without complications or comorbidities.

While complications and deaths associated with the novel coronavirus (COVID-19) are concentrated among older adults, who will have different estimated costs under Medicare, many younger patients are expected to become seriously ill as the pandemic spreads in the United States. Those covered by employer-sponsored plans can expect to have copayments and deductibles associated with coronavirus testing waived by their insurers, but will still be responsible for the out-of-pocket costs associated with their treatment.

The analysis is part of the Peterson-KFF Health System Tracker, an online information hub dedicated to monitoring and assessing the performance of the U.S. health system.

For more data, analysis, polling and journalism on the COVID-19 pandemic, visit our special resource page on kff.org.

Based on current understanding of risk, forty-one percent of adults ages 18 and older in the U.S. have a higher risk of developing more serious illness if they become infected with the virus that causes COVID-19, because they are older or have serious underlying health conditions, or both, according to a new KFF analysis.

Of the more than 105 million adults at higher risk if infected with coronavirus, most – 76.3 million, or 72 percent – are age 60 or older, the analysis finds. However, the remaining 29.2 million adults in this group are ages 18-59 and are at higher risk if infected due to an underlying medical condition such as heart disease, cancer, chronic obstructive pulmonary disease (COPD) or diabetes.

Nearly 6 million people at higher risk are uninsured, including 3.9 million adults under age 60 and 1.8 million who are ages 60-64. (Virtually all adults ages 65 and older are covered by Medicare.)

The share of adults at higher risk of serious illness if infected with the virus varies across the country, ranging from 31 percent in Washington D.C. to 51 percent in West Virginia. In Washington State, California and New York, some of the states hardest hit by COVID-19 so far, the share of adults at higher risk is 40 percent, 37 percent and 40 percent, respectively.

“A large share of adults have underlying conditions that put them at risk of getting more seriously ill if they get infected with coronavirus, which is why extraordinary measures are so critical,” said KFF President and CEO Drew Altman. “They are not all seniors — twenty nine million are under sixty, and a large group – approximately 5.7 million – are uninsured,” he added.

The Centers for Disease Control and Prevention has issued guidance for people at higher risk of serious illness, advising them to avoid crowds, cruises and non-essential air travel, and to stay home as much as possible to further reduce their risk of being exposed. Information from the World Health Organization cautions that older people and those with underlying medical conditions are at higher risk of getting severe COVID-19 disease.

KFF researchers analyzed data from the 2018 Behavioral Risk Factor Surveillance System (BRFSS) to estimate the total number of adults nationwide, and by state, with an elevated risk of serious illness if infected because of their age or underlying health condition, based on the current information made available by CDC.

The analysis defines older adults as individuals ages 60 or older. Younger adults, ages 18-59, are defined as at “at risk” if they get infected with coronavirus and have heart disease, cancer, chronic obstructive pulmonary disease (COPD) or diabetes, although researchers recognize that risk factors, including age, are evolving as the disease spreads and more is learned about its effects on different populations.

For more data and analysis related to the COVID-19 crisis, including a look at how the coronavirus might affect residents in nursing facilities, visit kff.org.

Introduction

While knowledge about COVID-19 continues to evolve daily, experts agree that certain populations are particularly vulnerable to severe cases of the infection – those with chronic conditions, compromised immune systems, and of old age. Nursing facilities provide care to populations with those characteristics, and residents in these facilities are particularly at risk of developing serious illness or dying if infected. In 2017, there were approximately 1.3 million residents receiving care across 15,483 nursing facilities in the US (Table 1). This data note provides key data points to highlight the potential implications of COVID-19 on nursing facility residents and overall operations.

Share of nursing home residents receiving respiratory treatment

Many residents in nursing facilities have underlying respiratory issues and may be at particular risk of illness should they contract coronavirus. One common symptom of coronaviruses is respiratory illness. About 16 percent of all residents in nursing facilities across the US received respiratory treatment in 2017, which includes using respirators/ventilators, oxygen, inhalation therapy, and other treatment. Given the implications of this virus on respiratory systems, these residents could be at higher risk of severe outcomes if they were to become infected. In states such as Colorado and Utah, over 30% of residents in nursing facilities are receiving respiratory treatment (Table 1). Ventilator supply is also crucial to consider, given the increased demand for this equipment for those severely impacted by COVID-19.

Share of nursing home residents with depression

Anxiety and depression are also common among nursing facility residents, and these health problems may be exacerbated by fear, worry, or social isolation due to COVID-19. Residents in nursing facilities are at risk of being diagnosed with psychiatric disorders, with nearly 40% having experienced symptoms of depression (Table 1). In Washington, where media attention has been centered on the outbreak of coronavirus in nursing facilities, almost half of residents have experienced depression or depressive symptoms. Research on family involvement in long-term care has shown that family visitation can have potentially positive effects on cognitive and behavioral health diagnoses.¹  Thus, visitor restrictions in nursing facilities, which are currently being implemented to lower the risk of exposure among residents who would be vulnerable to illness if infected, may also have negative impacts on residents’ mental health and increase the incidence of depressive symptoms.² 

Share of nursing homes with deficiencies in infection control

Deficiencies related to the spread of infectious disease are relatively common in nursing facilities, with nearly 40% of facilities having at least one infection control deficiency in 2017 (Table 1). Deficiencies related to infection control are the most common deficiency that nursing facilities report, followed by food sanitation (36%) and accident environment (34%). In Delaware, Mississippi, Missouri, Illinois, Michigan, and California, over half of facilities reported at least one deficiency related to infection control (Table 1 and Figure 1). Given the importance of following infection control procedures in mitigating the spread of the virus, facilities that have historically reported infection control deficiencies could be at elevated risk of a COVID-19 outbreak.

Occupancy rates in nursing homes

Resident density could have an impact on how fast an outbreak of COVID-19 might spread in a particular facility. Nationally, four of every five nursing facility beds were filled in 2017, with some states such as New York and DC reporting even higher occupancy density (over 90%) (Table 1). Higher occupant density puts residents at risk of quicker spread.

In the early stages of the COVID-19 epidemic in the U.S., residents in nursing facilities have been affected more than any other group and account for a large share of deaths. These residents’ physical and mental health conditions, facilities’ abilities to deal with infectious disease, and occupancy rates are all important considerations when thinking about addressing the spread of COVID-19 in nursing homes and other vulnerable populations.

1. Gaugler, Joseph E. “Family involvement in residential long-term care: A synthesis and critical review.” Aging & mental health 9.2 (2005): 105-118. ↩︎
2. Vernon L. Greene, PhD, Deborah J. Monahan, MA, The Impact of Visitation on Patient Well-Being in Nursing Homes, The Gerontologist, Volume 22, Issue 4, August 1982, Pages 418–423 ↩︎

The Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (P.L. 116-123), which passed with near unanimous support in both the House and Senate, was signed into law by the President on March 6, 2020. The bill provides $8.3 billion in emergency funding for federal agencies to respond to the coronavirus outbreak. Of the $8.3 billion, $6.7 billion (81%) is designated for the domestic response and $1.6 billion (19%) for the international response. Key highlights are below. Additional details on specified activities and expenditure period are provided in Table 1:

Domestic Efforts:

Of the $6.7 billion designated for the domestic response:

• The majority ($6.2 billion) is for the Department of Health and Human Services (HHS) including:
  • $3.4 billion for the Office of the Secretary – Public Health and Social Services Emergency Fund (PHSSEF), which includes more than $2 billion for the Biomedical Advanced Research and Development Authority (BARDA) (for the research and development of vaccines, therapeutics, and diagnostics), $300 million in contingency funding for the purchase of vaccines, therapeutics, and diagnostics to be used if deemed necessary by the Secretary of HHS, and $100 million for the Health Resources and Services Administration (HRSA) for grants under the Health Center Program, which aims to improve health care to people who are geographically isolated and economically or medically vulnerable.
  • $1.9 billion for the Centers for Disease Control and Prevention (CDC), which includes $950 million for state and local response efforts, of which $475 million must be allocated within 30 days of the enactment of the bill, and $300 million for the replenishment of the Infectious Diseases Rapid Response Reserve Fund, which supports U.S. efforts to respond to an infectious disease emergency.
  • $836 million for the National Institute of Allergy and Infectious Diseases (NIAID), which conducts research on therapies, vaccines, diagnostics, and other health technologies, at the National Institutes of Health (NIH).
  • $61 million for the Food and Drug Administration (FDA) for the development and review of vaccines, therapeutics, medical devices and countermeasures, address potential supply chain interruptions, and support enforcement of counterfeit products.
• $20 million is for the Small Business Administration (SBA) disaster loans program to support SBA’s administration of loan subsidies that will be made available to entities financially impacted as a result of the coronavirus.
• The bill also includes a waiver removing restrictions on Medicare providers allowing them to offer telehealth services to beneficiaries regardless of whether the beneficiary is in a rural community, at an estimated cost of $500 million.

It is possible that some of the domestic funding could be used for international efforts.

International Efforts:

Of the $1.6 billion designated for the international response:

• The majority, $986 million, is provided to the United States Agency for International Development (USAID) including funding provided through:
  • $435 million for the Global Health Programs (GHP) account to support health systems responding to the coronavirus outbreak overseas.
  • $300 million for the International Disaster Assistance (IDA) account to support humanitarian assistance needs resulting from the coronavirus outbreak.
  • $250 million for the Economic Support Fund (ESF) account to support economic, security and stabilization efforts resulting from the coronavirus outbreak
  • $1 million for the Office of the Inspector General (OIG) for oversight of coronavirus response activities.
• The State Department receives $264 million to support consular operations, emergency evacuations, and other needs at U.S. embassies.
• $300 million is provided to CDC to support global disease detection and emergency response efforts.

Expenditure Period:

The bill specified that funding could be disbursed over a multi-year period, although the periods vary by agency and account. For instance, Congress specified funding provided through the CDC “to remain available until September 30, 2022,” funding provided through the FDA “to remain available until expended,” and funding provided through NIAID “to remain available until September 30, 2024.”

This slideshow examines the role of health care as an issue in the 2020 Michigan Democratic primary and is based on KFF analysis of AP VoteCast, a survey of Michigan primary voters conducted for the Associated Press by NORC at the University of Chicago.

The survey was conducted for seven days, concluding as polls closed, and is based on 2,460 interviews conducted in English and Spanish with registered voters drawn from a random sample of the state voter file and from self-identified registered voters selected from non-probability online panels. The margin of sampling error for results based on the full sample is plus or minus 3 percentage points. Find more details about AP VoteCast’s methodology here.

Updated: March 11, 2020 at 1:00pm EST

Concerns over the potential spread of the coronavirus have refocused attention on the leave policies of employers.  People are being encouraged to remain in their homes if they show any symptoms of respiratory illness, but workers without access to paid sick leave may feel that they cannot afford to miss work, potentially exposing their co-workers and others to the coronavirus or other respiratory illness.

That lower-wage workers are much more likely to lack access to paid sick leave makes their economic decisions more acute.  Among the 25% of private industry occupations with the lowest wages ($13.25 per hour or less), 47% have access to paid sick leave; for the 10% of private industry occupations with the lowest wages ($10.48 per hour or less), the percentage with access to paid sick leave falls to 30%. Workers in higher-wage occupations are much more likely to have access to this benefit (Figure 1). For example, 77% of private industry workers with occupations in the second wage quartile ($13.25 to $19.00 per hour) have access to paid sick leave, with the percentage rising to 90% of private industry workers with occupations in the top wage quartile.

A corollary point is that many lower-wage jobs require considerable interaction with members of the general public – just the type of situation where we would want people to elect to remain at home if symptoms arise. Unfortunately, only 48% of private industry workers in leisure and hospitality sector have access to paid sick leave, a much lower percentage than other major occupation categories.  These people handle food, money and other items that could be part of the transmission of the coronavirus or other illnesses.

[Visit our special coronavirus topic page for all our resources.]

The potential spread of the coronavirus highlights the issues associated with the lack of paid sick leave for many private industry workers, particularly those with low wages. The lack of access not only exposes these workers to economic hardship if they are forced to miss work, but concerns over lost income may discourage them from seeking health care or missing work when symptoms appear, exposing their co-workers and members of the public to greater risk of transmission.

Methods

The data from this brief is from Employee Benefits in the United States, March, 2019.  The data on paid sick leave is available here: https://www.bls.gov/ncs/ebs/benefits/2019/ownership/private/table31a.pdf.  We focused in data for workers in private industry; the percentages of lower-wage State and Local Government workers with access to paid sick leave are higher.

The wage percentiles are calculated based on the average hourly wages for occupation into which workers are classified. See https://www.bls.gov/ncs/ebs/benefits/2019/tech_note.htm for a complete description of the methods used.  The percentiles were based on the following average wage levels.

A new KFF resource compiles publicly available information on donor funding for the global novel coronavirus response. Donors have begun providing support to China and other low- and middle-income countries, but currently there is no centralized repository to track this information.Through March 9, donors have pledged over $8.3 billion in financial support for the COVID-19 response. This includes donor assistance provided directly to countries as well as their contributions to the World Health Organization. The vast majority of the funding was provided by donor governments (including the U.S.), the World Bank, and other multilateral organizations. It does not include funding from governments for their own domestic response efforts or commitments focused on economic stimulus or recovery efforts related to the outbreak.The tracker will be updated as more information becomes available.

On February 14, 2020, the U.S. Court of Appeals for the D.C. Circuit issued a unanimous decision setting aside the Health and Human Services (HHS) Secretary’s approval of a Section 1115 Medicaid waiver amendment that included work and reporting requirements and restriction of retroactive coverage in Arkansas. The court found that Secretary’s approval was unlawful because he failed to consider the impact on coverage. The case was decided by a 3-judge panel, and the opinion was written by Judge David Sentelle, appointed by President Reagan. The appeals court affirmed the district court’s earlier decision that reached the same conclusion. In addition to Arkansas, the district court has set aside similar waiver approvals in Kentucky and New Hampshire.

The appeals court’s decision likely ultimately affects not only the Arkansas Medicaid program and its enrollees but also is being watched by other states with pending litigation, other states with waiver approvals and those seeking approvals for work requirements, and other states considering adopting similar policies. While litigation is ongoing, in January 2020, the Trump Administration released guidance inviting states to apply for new Section 1115 demonstrations that would allow states to impose work requirements and other restrictions on eligibility and benefits in exchange for a cap on federal financing and has again proposed a legislative change to condition Medicaid on work and reporting requirements in all states in its budget for fiscal year 2021. This issue brief answers three key questions about the implications of the appeals court’s decision.

1. What is the rationale behind the appeal court’s decision setting aside Arkansas’ waiver amendment?

The appeals court decided that the HHS Secretary’s approval of Arkansas’s waiver amendment was outside the scope of his Section 1115 demonstration authority. The court set the waiver amendment approval aside because the Secretary failed to adequately analyze its impact on Medicaid’s primary objective: providing health insurance coverage to low income people, consistent with the ruling and rationale of the district court. While Congress has granted the Secretary “considerable discretion” to approve waivers, the Secretary must exercise that discretion within the guardrails established by Congress. Specifically, the Secretary’s waiver authority is limited to approving experimental projects that will advance Medicaid program objectives. The courts’ role is to review the Secretary’s decisions and determine whether those guardrails are being observed.

The court found that the Secretary’s waiver amendment approval in Arkansas is arbitrary and capricious because he failed to consider the impact on coverage. The appeals court underscored that the “text of the [Medicaid] statute includes one primary purpose, which is providing health care coverage without any restriction geared to healthy outcomes, financial independence or transition to commercial coverage.” The Administrative Procedures Act – which governs agency decision-making — requires a reasoned basis for the Secretary’s decision, grounded in evidence in the administrative record. The administrative record includes the evidence before the Secretary when deciding whether to approve the waiver, such as the state’s waiver application and public comments. Estimates and concerns about coverage loss were raised in the public comments on Arkansas’ waiver amendment, and the court determined that the Secretary dismissed these concerns “in a handful of conclusory sentences.” The court found that the failure to consider an important aspect of the problem is not “reasoned decision-making.”

The court found that the Secretary’s waiver amendment approval in Arkansas also is flawed because he prioritized other objectives that are not in the statute to the exclusion of the objective identified by Congress. Congress did not include improving health outcomes or promoting financial independence as among Medicaid’s objectives, and the Secretary cannot approve a demonstration to further objectives that Congress has not identified, according to the court. The appeals court “agree[s] with the district court that the alternative objectives of better health outcomes and beneficiary independence are not consistent with Medicaid.” While HHS argued that the waiver restrictions were appropriate because ACA expansion adults in its view are a different population compared to other Medicaid populations, the appeals court concluded that nothing in the statute indicates that Congress intended to treat expansion adults differently from any other Medicaid enrollees. The appeals court also rejected HHS’s argument that the waiver restrictions are appropriate because they promote financial independence, observing that the statute’s reference to independence refers to assisting people with achieving functional independence by provided rehabilitative and other health care services. In contrast to the TANF and SNAP statutes, Congress has not conditioned Medicaid coverage on fulfilling work requirements.

2. What happens next in Arkansas?

The appeals court’s decision means that work and reporting requirements cannot be re-instated in Arkansas at this time. Arkansas’s waiver implementation began in summer 2018, with over 18,000 people losing coverage by the end of that year. The district court’s decision stopped implementation, before the first coverage losses scheduled for 2019 took effect on April 1^st. In addition to the work and reporting requirements, Arkansas also cannot re-instate the restriction of retroactive coverage, which also was included in the vacated waiver amendment.

Looking ahead, HHS and/or Arkansas can ask the entire DC Circuit Court of Appeals to reconsider the case in a rehearing “en banc.” They also can ask the U.S. Supreme Court to grant cert and review the case. This means that the recent appeals court decision might not be the last word on the scope of the Secretary’s waiver authority, although both of these further appeals are at each’s court’s discretion.

3. What does the decision mean for HHS and other states that want to condition Medicaid coverage on work and reporting requirements?

While the appeals court’s decision in Arkansas does not directly invalidate Medicaid work requirement approvals in other states, it does signal that lawsuits challenging similar approvals are likely to be successful. While a similar appeal in Kentucky has been dismissed as moot after the new governor terminated the waiver, the New Hampshire case is currently pending in the appeals court, and there are cases challenging waiver approvals in Indiana and Michigan in the district court. In addition to the waivers currently being challenged in court, HHS has approved similar work requirement waivers in five other states, while 10 other states’ requests are pending as of February 14, 2020. The New Hampshire appeal was put on hold while the Arkansas appeal was pending. The appeals court has ordered the parties in the New Hampshire case to file motions by March 16, 2020, setting out how they think the case should proceed given the Arkansas decision.

Applying the appeals court’s decision in Arkansas, the district court set aside the work requirement waiver approval in Michigan; the Indiana case is still pending in the district court. The district court has to follow the legal standards set out in the appeals court’s decision. Prior to the appeals court’s decision in Arkansas, HHS conceded that the Indiana and Michigan work requirements would be unlawful “absent further judicial review” if the appeals court affirmed the district court’s decision setting aside the Arkansas approval. However, HHS argues that other waiver provisions challenged in Indiana and Michigan such as premiums and healthy behavior requirements were lawfully approved and should survive even if the work requirements are vacated; the court has not yet ruled on these other provisions. The plaintiffs argue that the Secretary’s entire approval is flawed, and none of the challenged provisions can survive.

Implementation of work requirements has been suspended in New Hampshire, Indiana, and Arizona, given the pending litigation, leaving Utah as the only state currently implementing a work requirement. Other states pursuing similar requirements also may reconsider, given the recent appeals court decision about Arkansas. However, there is nothing to stop states from adopting programs to support Medicaid enrollees’ ability to work without the threat of coverage loss. Montana has a voluntary work supports program, Maine rejected a work requirement waiver in favor of a similar program, and Kansas has pending Medicaid expansion legislation that includes a voluntary work referral.

The appeals court’s statements about Medicaid’s primary purpose as articulated by Congress and the bounds of the Secretary’s discretion under Section 1115 are likely to inform potential future lawsuits challenging other demonstration approvals. The recent CMS guidance inviting states to apply for new demonstrations with capped federal funding would allow states to impose work requirements and other restrictions on eligibility and benefits similar to those set aside in Arkansas, Kentucky, and New Hampshire to date, making continuing developments in the current lawsuits important to watch.