Michigan: Gov. Whitmer can save Medicaid for 70,000 Michiganders. Here's how.

Over the past year or so I've written numerous entries about Michigan Republicans pushing through an ineffective, inefficient, cruel and pointless work requirement addition to Michigan's implementation of Medicaid expansion under the Affordable Care Act, culminating in this one:

New work requirements for people in Michigan's Medicaid expansion group could cause as many as 183,000 people to lose their coverage.

Anywhere between 9 and 27 percent of the approximately 680,000 people enrolled in the Michigan Healthy Plan - or 61,000 to 183,000 recipients - could be kicked of the rolls.

That's up to three times what was estimated by the House Fiscal Agency when the work requirement bill was passed last year. The work requirements are scheduled to take effect on January 1, 2020.

As I noted at the time, MI GOP claims that the work requirements will "fill job openings" is a load of hot, steaming garbage:

As it races to revamp Medicaid by allowing work requirements for the first time, the Trump administration is failing to enforce federal rules directing states to assess the impact of the change on low-income patients who rely on the half-century-old safety net program, a Times analysis shows.

None of the eight states that the administration has cleared to implement a Medicaid work requirement has in place a plan to track whether Medicaid enrollees find jobs or improve their health, two goals often touted by administration health officials.

And nine of the 17 states that have sought federal permission to implement Medicaid work mandates have been allowed by the Trump administration to proceed with their applications despite failing to calculate the number of people who could lose coverage, according to a review of state and federal Medicaid records.

...Critics say the administration and the states appear to be systematically ignoring or weakening the requirement for independent analysis, perhaps because they fear the results.

...However, state officials seeking permission to implement work mandates in Arizona, Arkansas, Kansas, Michigan, New Hampshire, Oklahoma, South Dakota, Tennessee and Wisconsin did not project in any detail how their experiments would affect Medicaid enrollees’ coverage, according to a review of hundreds of pages of state documents filed with the federal Center for Medicare and Medicaid Services, or CMS.

Michigan's work requirement implementation is mandated to go into effect starting January 1, 2020...and it doesn't look like Michigan's new Democratic Governor, Gretchen Whitmer, will be able to do anything to stop it entirely unless there's a court order preventing it from being enforced. HOWEVER, according to my friend and U of M Law Professor Samuel Bagenstos, she can at least mitigate the damage, by quite a bit:

...For now, Gov. Whitmer is stuck with the work requirement. But she does have room to implement it in a way that blunts its worst harms. Indeed, if she makes the right choices, she could protect 70,000 or more Michiganders from being thrown off the rolls by that requirement.

...To solve this problem, exemptions from Michigan’s new work requirement must, so far as possible, be determined automatically by state officials — without any need for application or certification by the individual beneficiaries. 

...But the statute does not limit the automatic exemptions to those that it specifically enumerates. It provides that, when the Michigan Department of Health and Human Services implements the work requirement, the requirement “must include, but is not limited to,” the eligibility standards and exemptions listed in the legislation.

...The waiver itself provides the basis for further automatic exemptions. It requires Michigan, “[p]rior to implementation” of the work requirement, to “[e]nsure the state will assess areas within the state that experience high rates of unemployment, areas with limited economies and/or educational opportunities, and areas that lack public transportation.” The state must assess those areas “to determine whether there should be further exemptions” from the work requirement so that it “will not be unreasonably burdensome for beneficiaries to meet.”

That provision of the waiver — which, remember, was issued by the Trump Administration — gives Gov. Whitmer the basis for adding a new administrative exemption for Medicaid recipients in “areas with limited economies.” Such an exemption could substantially reduce the harm of the work requirement.

...If MDHHS were to administratively exempt individuals in these counties from the work requirement, the high-end estimate is that only about 109,000, instead of 183,000, people would be thrown off the rolls. That would still be a substantial harm, but it would potentially protect over 70,000 people from losing their Medicaid lifeline.

The only thing I'll add here is that not only is this the legally and morally right thing to do, it also has ample precedent...from the Trump Administration itself:

What's New

Hardship coverage exemption. You can now claim a coverage exemption for certain types of hardships on your tax return. See the Types of Coverage Exemptions chart and General hardship (code G), for more information.

Checkbox on Form 1040. The “Full-year coverage” checkbox that was on line 61 of the 2017 Form 1040 has been moved to page 1 of the 2018 Form 1040 and retitled “Full-year health care coverage or exempt.” You will now check that box if you, your spouse (if filing jointly), and anyone you can or do claim as a dependent had qualifying health care coverage or a coverage exemption that covered all of 2018 or a combination of qualifying health care coverage and coverage exemptions for every month of 2018. If you can check the box on Form 1040, you don’t need to file Form 8965.

So what does that mean in practice? Well, for 2017, a "General Hardship" exemption had to be granted by HC.gov, and you needed an Exemption Certificate Number:

General hardship—The Marketplace determined that you experienced a hardship that prevented you from obtaining coverage under a qualified health plan.

For 2018, the IRS will simply take you at your word...no ECN needed:

General hardship—You experienced a hardship that prevented you from obtaining coverage under a qualified health plan

Yes, that's right...all anyone has to do this spring is claim that they "experienced a hardship" and they're off the hook.

Gov. Whitmer won't be able to make it THAT easy to get an exemption from the Medicaid work requirement...but she can damned well make them as widespread as possible. The health and possibly lives of 70,000 Michiganders are at stake.