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December 2018 (Volume 96)
Released by the President’s Council of Economic Advisers (CEA) in July 2018,1 the report Expanding Work Requirements in Non-Cash Welfare Programs is a reminder of the deep roots of the American myth about poor working-age adults. This myth can be traced to the 1601 English Poor Law, which established a system of subsistence for the “impotent” poor—infants, the elderly, and the infirm—who would literally be licensed to beg in certain towns, while consigning “able-bodied” adults to local workhouses. In her masterwork, Light Shining in Buckinghamshire, English playwright Caryl Churchill reveals the law’s full moral impact. In the play, staged as a remarkable series of tableaux focusing on the social and political treatment of the 17th-century English poor, Churchill gives the audience a scene in which town elders order the flogging of a young woman who sought help even though she did not qualify for a beggar’s license.
Mercifully, society has left flogging behind, and of course, the great social welfare reforms of the 20th century have done much to sweep away poor-law mentality. But myths endure for centuries. In this country, the one pertaining to poor working-age adults runs particularly deep, since we trace so much of our own society to English laws, customs, and traditions.
Our national attitude toward the poor tends to come to the forefront in cycles, and we appear to be in the grip of such a surge now. No government program aimed at bringing greater health equity is immune, it seems. Rejection and vitriol are expressed in multiple ways, from outright disdain to disingenuous assertions by government leaders that efforts to aid the poor simply show “the soft bigotry of low expectations.”2
In the wake of the Affordable Care Act’s (ACA’s) reforms, Medicaid emerged as the leading edge of the current reactionary cycle. Multiple studies3 show that the ACA’s seminal policy shift toward the poor has promoted access to beneficial health care, brought greater financial stability, and produced positive labor effects without discouraging work. Building on decades of precedential state initiatives, the ACA reforms have been transformational for the poor, helping offset the cruelty of a health care system that previously excluded millions of impoverished, nondisabled adults simply because they held low-wage jobs that did not offer health insurance.
From the moment the ACA was signed, its opponents pushed to derail it, with no aspect of the reforms emerging as a bigger target than Medicaid. To succeed, as it turns out, the opposition simply needed to resurrect the image of the “able-bodied” adult, one repeated in the press, formal policy statements, and court documents literally hundreds of thousands of times. This reframing of the Medicaid narrative—from insurance for the poor to welfare handout—was instrumental in creating the poisonous atmosphere that ultimately led the United States Supreme Court, in its landmark 2012 decision on the constitutionality of the ACA, to strike down the Medicaid expansion mandate as unconstitutional, albeit while saving it as an option. The majority opinion left no doubt about what the expansion evoked, characterizing it not as a simple evolutionary amendment paralleling earlier reforms for children but instead as a “shift in kind, not merely degree.”
In the wake of this decision, the attack on poor adults has expanded into a crusade. Today 17 states continue to reject expansion, and a number of expansion states—as well as some states that have refused to expand—seek to introduce a 21st-century version of the English workhouse by making work a condition of eligibility. With the collapse of the ACA repeal-and-replace legislation (which would have included a state Medicaid work option), the Trump administration turned to Section 1115 of the Social Security Act, a landmark experimental authority, which authorizes experiments that improve, not undermine, social welfare programs for the poor. The Obama administration had refused to allow work experiments, arguing not only against the policy but also that Section 1115 does not authorize demonstrations designed solely to constrain, rather than promote, Medicaid’s objective of insuring the poor.
Within weeks of taking office, senior Trump administration officials described the ACA expansion as a “clear departure from the core, historical mission of the program”4 and subsequently moved to use Section 1115 to green-light demonstrations deliberately designed to cull the insurance rolls through work requirements that many people cannot meet, reporting rules that cannot be navigated, escalating premiums, rolled-back benefits, and lengthy exclusionary periods for noncompliance. In June 2018, a federal court halted Kentucky’s experiment,5 and a second case has been mounted against Arkansas.
The July CEA report is part of this effort to refashion governmental assistance as a workhouse. Issued in response to a presidential executive order calling for the imposition of work conditions on noncash programs, the report aims to provide the evidentiary basis for such policies. But instead it is notable only for its deeply flawed analysis.
The report’s first failing is its mischaracterization of the evidence. The CEA relies on point-in-time data to show that the poor who receive noncash benefits are significantly less likely to work than those who do not receive assistance. In fact, research shows that people who use noncash benefits tend to do so cyclically when broader economic currents adversely affect employment. For this reason, the proper way to analyze the relationship between work and noncash benefits is over time, not via a snapshot methodology. When the evidence is seen in this way, a far different picture emerges—of a population consisting largely of working households that turn only periodically to safety net programs.
Second, and of particular importance to Medicaid, the CEA uses data from 2013, a year before the Medicaid expansion that made benefits available to poor working households on a large scale. More recent data show far greater numbers of working families able to obtain Medicaid.
Like judicial rulings generally, this past June’s Medicaid work decision brought an enormous amount of information to light, pulling back the curtain on evidence-free agency action and baseless official assertions. The decision shows that the administrative record was replete with evidence extensively documenting both the risk of harm to the experimental population and the virtual absence of evidence to support claims of benefit. Unsurprisingly, the CEA report does not weigh risks and harms, but neither did the high-ranking Health and Human Services officials reviewing the work demonstration proposals, even though they have a legal duty to do so.
In a sensible world, we would set aside workhouse imagery and instead pursue policies aimed at strengthening government assistance and mitigating the precipitous loss of assistance that can occur when incomes slowly rise. Here’s hoping that we return to a sensible world sometime soon.
Sara Rosenbaum is the Harold and Jane Hirsh Professor of Health Law and Policy and founding chair of the Department of Health Policy at the George Washington University School of Public Health and Health Services. She also holds professorships in the Schools of Law and Medicine and Health Sciences. A graduate of Wesleyan University and Boston University Law School, Rosenbaum has devoted her career to issues of health justice for populations who are medically underserved as a result of race, poverty, disability, or cultural exclusion. Between 1993 and 1994, Rosenbaum worked for President Clinton, where she directed the drafting of the Health Security Act and designed the Vaccines for Children program, which today provides near-universal immunization coverage to low-income and medically underserved children. Rosenbaum is the leading author of Law and the American Health Care System (Foundation Press, 2012) and has received many national awards for her work in public health policy. She is past chair of AcademyHealth and a member of the Institute of Medicine. Rosenbaum also has served on the CDC Director’s Advisory Committee and as a Commissioner on the Congressional Medicaid and CHIP Payment and Access Commission (MACPAC), which she chaired from January 2016 through the expiration of her term in April, 2017.
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