Legal Action Center Statement on Imposing Work Requirements for Medicaid Eligibility

Misguided Policy Will Disproportionately Harm People with SUD and Criminal Records

January 12, 2018: Yesterday, the Department of Health and Human Services (HHS), through its Centers for Medicare and Medicaid Services (CMS), issued new guidance authorizing states to impose work requirements on people enrolled in Medicaid for their health care. This change will have a significant and disproportionately harmful impact on individuals with chronic health conditions, especially those struggling with substance use disorders.

Paul Samuels, President and Director of the Legal Action Center said, “We are extremely concerned that CMS’s new policy will create significant barriers to care and further limit the availability of substance use and mental health treatment.” He adds, “At a time when the twin epidemics of opioid addiction and suicide are claiming the lives of over 300 Americans each day, it is imperative that new policies are developed to strengthen, not further restrict, access to the comprehensive healthcare services that individuals with substance use and mental health disorders need to get and stay well.”

Although CMS’s policy guidance states that work requirements are intended for people who are eligible for Medicaid on a basis other than disability, many individuals with chronic illness and disability would nevertheless remain subject to work requirements because they do not satisfy the rigorous federal Social Security disability requirements.  In fact, people with SUDs cannot qualify for SSI/SSDI if addiction is their primary disabling condition.  Accordingly, this exemption alone would not protect the tens of thousands of individuals whose health condition prevents them from gaining or retaining employment. In addition, we are very concerned that, even while acknowledging that some individuals need supportive services to obtain employment, such as transportation and childcare, the policy guidance excludes these services from Medicaid federal financial participation. This would create a significant disincentive for states to fund these services since the guidance states that matching federal dollars will not be available.

Despite acknowledging the nation’s opioid crisis, and requiring that states make “reasonable accommodations” so that people with SUD have access to Medicaid coverage and treatment services, CMS’s guidance provides inadequate protections for people with SUD. While suggesting that states could elect to count time spent in certain types of SUD treatment toward work requirements, CMS’s guidance fails to acknowledge how difficult it can be to access SUD care.  According to the most recent SAMHSA data, in 2016, only approximately 10 percent of the nearly 20 million adults who needed SUD treatment actually received it.  Over a quarter of the individuals needing SUD treatment who sought but didn’t receive care cited lack of health care coverage and an inability to afford the cost of treatment as the reason they didn’t receive care. In the midst of a devastating and escalating opioid crisis, it is incomprehensible for CMS to give states the ability to make it even more difficult for Americans to access vital SUD care.  Conditioning health coverage on employment would also clearly jeopardize recovery for persons who have completed substance use disorder treatment, but are unable to secure employment.

In addition, a substantial number of individuals with substance use disorders also have a criminal history that is directly related to their untreated addiction.  The CMS guidance completely fails to recognize the stigma, discrimination, and related legal and policy barriers to employment confronting people with criminal records.  70 million Americans, one in every four, has a criminal record.  With over 85 percent of employers conducting background checks, it can be extremely challenging for people with criminal records to secure employment. Medicaid work requirements will only compound the obstacles these individuals already face when trying to secure employment.

Although CMS’s new policy gives states discretion to count different types of activities as work, such as job training and drug treatment, states could elect not to permit any of these to meet the states’ work requirements for continued Medicaid eligibility. Additionally, low-income workers tend to change jobs at a higher rate of frequency than other populations. Consequently, tracking recipients’ employment and exemption status will be costly and create new administrative burdens. The funds required to administer the proposed Medicaid work requirements would be better spent on providing needed health care services and creating employment opportunities.

Gabrielle de la Guéronnière, Director of Policy at the Legal Action Center said, “This policy cruelly punishes and stigmatizes low-income people and is counterproductive. And, counter to the administration’s stated goal of better responding to the opioid crisis, this policy will make it more difficult for many Americans to receive life-saving SUD care.”


Established in 1973, the Legal Action Center is the only non-profit law and policy organization in the United States whose sole mission is to fight discrimination against people with histories of addiction, HIV/AIDS, or criminal records, and to advocate for sound public policies in these areas.

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