Are Medicaid work requirements legal?

That’s the title of a new piece of mine that came out in JAMA this morning. It’s pretty timely: a lawsuit was filed last week challenging CMS’s approval of Kentucky’s waiver, which includes work requirements. More waivers, and more litigation, are sure to come.

I’m no fan of work requirements. They’re harsh, stigmatizing, and ineffective. And they will hurt people, including the disabled, to no good end. But I’m skeptical of the litigation.

[In general,] the courts have not been moved by the argument—true though it may be—that Congress never meant for section 1115 to be a vehicle for the adoption of sweeping, controversial, and partisan reforms to Medicaid. Instead of winning in court, the opponents of work requirements may need to win some elections.

For a contrary view, take a look at Emily Parento’s and Nicole Huberfeld’s op-ed in the Lexington-Herald Leader.

@nicholas_bagley

Nicholas Bagley

Nicholas Bagley is a professor at University of Michigan Law School, where he teaches and writes in the areas of administrative law, regulatory theory, and health law. Prior to joining the Law School faculty in 2010, he was an attorney with the appellate staff in the Civil Division at the U.S. Department of Justice, where he argued a dozen cases before the U.S. Courts of Appeals and acted as lead counsel in many more.

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Nicholas Bagley

Nicholas Bagley is a professor at University of Michigan Law School, where he teaches and writes in the areas of administrative law, regulatory theory, and health law. Prior to joining the Law School faculty in 2010, he was an attorney with the appellate staff in the Civil Division at the U.S. Department of Justice, where he argued a dozen cases before the U.S. Courts of Appeals and acted as lead counsel in many more.

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