After a court ruling struck down a Medicaid work requirement in Kentucky, some wonder whether New Hampshire is opening itself to litigation with the new rule.

Low-wage jobs already come with plenty of uncertainties—long hours, odd schedules, barriers to childcare.

John Moore/Getty Images

UPDATE, March 20, 5:30 p.m.: A lawsuit was filed Wednesday against the Trump administration for approving work requirements in the state’s Medicaid program.

Republican Gov. Chris Sununu continued New Hampshire’s expansion of Medicaid health insurance coverage under the Affordable Care Act (ACA) for another five years, but added “work and community engagement” requirements that advocates say are an unnecessary burden for families with low incomes.

Effective January, the law includes a work requirement for eligible able-bodied adults who receive Medicaid benefits via expansion; they must seek work or be engaged in schooling or job training for 100 hours each month. The requirement does not extend to the self employed, and it includes exemptions for caregivers, people with disabilities, and parents with kids young than age six.

“I really commend the governor and the legislature for reauthorizing the program. It had broad partisan support and I think we are all committed to keeping people covered,” Dawn McKinney, policy director at New Hampshire Legal Assistance, told Rewire.News. “But I think that any time you add administrative hurdles like work requirement—even if you are already working but have to document that—people will lose coverage and that’s our concern.”

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After a federal district court ruling struck down a work requirement in Kentucky, some wonder whether New Hampshire is opening itself to litigation with the new rule. Kentucky Gov. Matt Bevin (R), reacting to the court’s ruling, axed vision and dental benefits for nearly 500,000 people in his state.

Like other GOP politicians who have rejected billions of federal dollars to expand Medicaid, Sununu opposed expansion under the ACA, or Obamacare, while he was a member of the New Hampshire Executive Council. But when he signed SB 313 last month, he said it was his most important legislation as governor, the Union Leader reported.

“The D.C. District Court’s ruling was based on a procedural issue and applies only to Kentucky,” John M. Formella, legal counsel in Sununu’s office, wrote in an email to Rewire.News. “As required by the bipartisan Medicaid expansion bill that passed with overwhelming support in the legislature and which [the] Governor signed into law last Friday, New Hampshire is moving forward with implementation of a Medicaid work requirement.”

Although last month’s ruling applied only to Kentucky, it raises questions about the legality of such Medicaid expansion work requirements pushed by Republican lawmakers in other states, such as Arkansas and Indiana.

The decision leaves hanging seven states that have requested work requirement approvals from the Trump administration. Some expect the federal Centers for Medicare and Medicaid Services (CMS) to outline what’s next, according to Governing magazine.

CMS Administrator Seema Verma called the Kentucky ruling “disappointing” in a statement.

Kentucky’s case should raise concerns in New Hampshire, advocates warned.

“The work requirement in the New Hampshire Medicaid expansion bill is particularly concerning because it currently does not allow self-employment to count towards meeting the work requirement, which will impact small business owners and those engaged in the gig economy, and the monthly verification process is an administrative burden that will result in the loss of coverage for anyone with hours that fluctuate from week to week or month to month.” Zandra Rice Hawkins, executive director of the Granite State Progress Education Fund, said in a statement. “The Kentucky ruling should give New Hampshire pause on the work requirement, and we will be advocating for New Hampshire to structure our program in a way that ensures Granite State families have access to the health care coverage they need to remain healthy and financially secure.”

“The court decision in Kentucky really affirms our position, which is that work requirements are contrary to federal law. Medicaid is a health program not a work program,” said New Hampshire Legal Assistance’s McKinney. “We do anticipate that this will be an issue of contention in New Hampshire.”

Unemployment is low in New Hampshire and a majority of the 52,000 covered under the Medicaid expansion already work. “Any time you have to document things, submit paperwork, verify something, people often get lost in that process,” McKinney said.

Low-wage jobs already come with plenty of uncertainties—long hours, odd schedules, barriers to childcare. Adding a work requirement would impose additional life and employment challenges to those who qualify, she said.

New Hampshire officials would like recipients to prove citizenship for Medicaid eligibility, a burden that would lead to further paperwork, money, and delays, according to the Union Leader.

The reauthorization of Medicaid expansion “is without question the most important tool we have to support public health and combat the ongoing addiction epidemic,” said Michele Merritt, president and CEO of New Futures, a New Hampshire nonprofit that advocates for health.“While many recipients are already working, this requirement adds another hurdle for many to overcome in order to access critical health care coverage. At New Futures, we will continue to watch other states as their work requirements move through the courts, and we will closely monitor the implementation of the work requirement here in New Hampshire to ensure it is administered thoughtfully and in a way that doesn’t compromise access to health care for those in need.”

Sara Rosenbaum wrote in a Commonwealth Fund blog post that any Medicaid waiver “must be carefully assessed for its impact on people’s health care coverage. Providing health insurance, after all, is Medicaid’s reason for being.”