Georgia sues Biden administration over health waiver

Governor Brian Kemp and Centers for Medicare and Medicaid Services (CMS) Administrator Seema Verma celebrate with a fist bump after Verma announced that the Trump administration would approve both Georgia's health care "waiver" requests. (PHOTO by Hyosub Shin / Hyosub.Shin@ajc.com)

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Governor Brian Kemp and Centers for Medicare and Medicaid Services (CMS) Administrator Seema Verma celebrate with a fist bump after Verma announced that the Trump administration would approve both Georgia's health care "waiver" requests. (PHOTO by Hyosub Shin / Hyosub.Shin@ajc.com)

Georgia has filed suit against the Biden administration, demanding the state be allowed to impose a work and activity requirement for some Georgians in order to qualify for Medicaid insurance.

Georgia Gov. Brian Kemp’s “waiver” proposal, approved in the waning days of the Trump administration, was drawn up in response to federal government’s invitation to states to expand the Medicaid health insurance program to all poor adults.

At issue is a plan by Kemp to require adults who would gain health coverage through Medicaid to either work at least 80 hours a month, attend specific school programs or engage in other specific activities. It’s called a waiver because the law allows Washington to waive some federal laws in order for states to tailor programs to local needs.

“Simply put, the Biden administration is obstructing our ability to implement innovative healthcare solutions for more than 50,000 hardworking Georgia families rather than rely on a one-size-fits-none broken system,” said Kemp said in an emailed statement. Attorney General Chris Carr filed the suit for Georgia.

The Kemp administration has estimated that his plan would end up covering about 50,000 of Georgia’s poor adults. Earlier estimates were that a full Medicaid expansion could cover 400,000 in need of health insurance.

Kemp’s plan would not cover, for example, someone who is a full-time caretaker for a relative with Alzheimers, or someone who does volunteer work that’s not registered with an approved nonprofit. Those who are mentally ill but unable or unwilling to go through the long process to be federally certified as disabled would also not meet coverage requirements.

In mid-December, U.S. Centers for Medicare and Medicaid Services administrator Chiquita Brooks-LaSure told The Atlanta Journal-Constitution that “I think we’ve made very clear our concern, particularly during this COVID-19 pandemic, one that we haven’t seen in generations, how concerned we are around work requirements.” A week later, on Dec. 23, the Biden administration rejected Georgia’s work or activity requirement.

CMS said Friday the office does not comment on pending litigation.

Courts have ruled that work requirements do not meet the objective of the Medicaid law, which was to provide health coverage. The Kemp administration has argued that the engagement requirement is not a work requirement.

The rejection actually left Georgia in an unexpected place. For the first time since the administration of Gov. Nathan Deal, Georgia now apparently has an open pathway under state and federal law to expand Medicaid to everyone under the federal poverty level.

When the Obama administration signed the Affordable Care Act into law, Republican states rose up in protest and refused to expand Medicaid to all poor as the ACA intended. Instead, while Democratic-led states expanded it, Republic led states hung back. Over time, Republican states have begun expanding Medicaid to all their poor.

Georgia is now one of just 12 states that have not done that. One reason is that the Georgia Legislature passed a law forbidding the governor to do so.

However, the Legislature in 2019 opened a window in the law, for the purpose of Kemp’s health care waiver. That 2019 law says that after the waiver is approved by Washington, the governor’s administration can implement it without any further action by the state Legislature. There were just a few caveats, including that Medicaid could only be offered to people making 100% of poverty level incomes. That would be more than 200,000 currently uninsured Georgians.

On Friday, officials with Georgians for a Healthy Future, an organization that advocates for expanding Medicaid, said that’s what Kemp should do now.

“At this point, the governor and the attorney general are wasting taxpayer dollars and time that could be spent enrolling and covering people who are currently uninsured,” said Laura Colbert, GHF’s director.

Libertarian groups such as Georgia Public Policy Foundation have argued that the work requirement was the responsible way to spend taxpayer dollars if Medicaid had to be expanded.

“We still believe that the program outlined in the waiver is a better solution than just a straight expansion of Medicaid,” said Kyle Wingfield, GPPF’s president. To blame Kemp for the delay, he said, is “blaming the wrong party.”

Attorney General Chris Carr filed the suit in the United States District Court for the Southern District of Georgia Brunswick Division. Now it’s up to the Biden administration to respond.

Read Georgia’s lawsuit HERE.