Access to Care Report/This Week (#7): For states without expanded Medicaid — possible strategies for access to care

August 22, 2013

health-care-lawThis is #7 in a series of weekly Access to Care Reports by Mitchell Law Office.

About half of all states have decided not to implement the expanded Medicaid program authorized by the Affordable Care Act (ACA). Exercising the right established by the Supreme Court, these states have chosen to continue only with their existing Medicaid activities.

The existing program covers primarily children from lower-income households and often their parents, and those with limited resources and income who are over age 65, blind or disabled. Only very limited coverage has been available for adults under age 65 without children.

The ACA created a new Medicaid category for most adults with income under 138 percent of the Federal Poverty Level (FPL). This addition was intended to supplement existing Medicaid and to match up with the subsidies for private insurance to be available through the new Health Exchanges for individuals with incomes of 100 to 400 percent of the FPL.

In states that are adopting expanded Medicaid coverage, individuals with incomes both above and below the FPL have options under the ACA. But in states that have chosen not to adopt expanded Medicaid, individuals with incomes below the FPL do not have a coverage option, while those with incomes above the FPL can purchase subsidized insurance through an Exchange.

Several possible strategies may be considered for dealing with this situation for 2014.

Some lower-income individuals in states without expanded Medicaid might choose to move to states where they can be covered. This option might appeal to those with more need or interest in health care. It is difficult to estimate how prevalent this response might be, and whether there could be any impact on labor markets.

Another response might be for individuals with incomes below the FPL to seek to increase their incomes through additional employment, so that total incomes would rise above the FPL, and insurance could be purchased through an Exchange with a subsidies to cover most premium costs.

Community assistants and advocates might link up with state employment offices to identify employment options to increase the total incomes of low-income employees to above the FPL. For 2014, it might be possible for employment offices to come up with ideas as to how incomes may be “bumped up” to allow qualification under the ACA.

A further option might be to obtain support from employers to increase employee income above the FPL. Perhaps in some cases, employers might see advantages in helping employees qualify for health insurance through Medicaid as a temporary response to the existing situation.

There is also a potential equal-protection issue around the variations in access to care that will exist from state-to-state. It is possible that advocacy groups might decide to bring legal action, arguing that it is unconstitutional for individuals to be provided access to care in some states, while access is denied in other states.

Such actions might use the existence of the ACA, and the legislative intentions expressed in the Act, to argue that access to care is now a right under federal law, and that states without expanded Medicaid must find other means for meeting the health care needs of individuals with less income. Such cases might be brought on an expedited basis on behalf of individuals with major health needs who remain uncovered by the ACA. Both federal and state constitutional rights might be considered.

This would be a much more assertive attitude toward the ACA.

Previous installments of “Access to Care Reports” address the various ways in which access to care issues are affecting legal practices:

Report #1   Report #2   Report #3   Report #4   Report #5  Report #6