Gelila Selassie: Hello everyone. My name is Gelila Selassie. I’m an attorney here at Justice in Aging. I’m here with my colleague Natalie Kean, and the webinar for today is regarding understanding the new Medicaid work requirement rules. So thank you all for being here today.
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Before we begin on the substantive pieces, we just wanted to go over a few logistics. Again, welcome, you are all on mute, but we welcome you to participate in this webinar through the Q&A function in Zoom. It’s in the control panel. And then there’s also the CC button, which enables closed captioning if you need it for accessibility purposes. We will be watching the participant questions as they come through the webinar and then any high common questions or high themes, we’ll be sure to answer live. Other questions will be answered via email following the webinar. And then if there’s any technical issues with the webinar, you’re also welcome to use the Q&A function and our staff will do their best to help you with that.
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And then just a little bit about Justice in Aging. We are a national legal organization and nonprofit that uses the power of law to fight senior poverty. We do that by increasing access to affordable healthcare, increasing economic security for older adults with limited resources, and we very much focus on marginalized older adults who have been historically excluded from justice such as older adults of color, women, LGBTQ+ older adults, older adults with disabilities, older immigrants, and those whose primary language is not English.
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And then a big commitment that we have at Justice in Aging is our commitment to justice to ensure that everyone has access to what they need as they age without discrimination. And our advocacy is really rooted in this ideal that the greatest barriers to economic security, healthcare, and housing can only be exercised if people have full rights and access to those crucial services that they need.
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So today’s agenda, we’re going to be focusing on the new rules for implementing Medicaid work requirements, which are also known as community engagement requirements. The statute and the regs refer to it as community engagement because it goes a lot broader than just ability to work or reporting your work, but that’s also a mouthful, so apologize if you hear me use the two terms interchangeably. We’ll also talk about who is subject to these rules and how the exclusions operate, and we’ll end the presentation by talking about advocacy strategies to mitigate the harm and providing you with tools and resources to help those who you serve who will be subject to these work requirements. And then again, we’ll save time at the end for a Q&A for the more frequent questions that come up during the webinar. And if you’re up for it, Natalie, I’ll turn it to you for an overview.
Natalie Kean: Thank you so much, Gelila. So starting with the bigger context, a year ago, the Budget Reconciliation Act, which we refer to as H.R. 1, was signed into law and it makes the largest cuts to Medicaid in history, nearly a trillion dollars. These cuts take many forms, but most of them are shifting costs to states and are aimed at taking away Medicaid coverage from people who are otherwise eligible. One of the biggest changes is requiring states to condition Medicaid eligibility for many working age adults on meeting work requirements. It’s estimated in total that as many as 10 million people will have their Medicaid coverage terminated under H.R. 1. For more information on all of the parts of H.R. 1, I encourage you to check out our section-by-section summary linked on this slide.
So many of the Medicaid eligibility changes in H.R. 1 are going to be in effect in the next six months. The pause on enforcement of some important rules is already in effect in October. Medicaid eligibility for lawfully present immigrants will be reduced. And in January of next year, Medicaid work requirements, more frequent renewals and reduced retroactive coverage take effect. So as Gelila mentioned, we’re going to mostly use community engagement or CE for short today, but we’re talking about work requirements. I also want to note that this policy is extremely confusing and complicated. And while the new rules that we’re going to talk about provide some more detail, they certainly don’t make these requirements any easier to navigate. We’re going to aim to provide an overview of what we know based on the law and the rules, but there are still many questions and concerns about how this law will play out in the states.
So under H.R. 1, states must condition Medicaid eligibility for some enrollees on meeting community engagement requirements. These are separate from other work requirements in the SNAP or TANF programs. And as you may remember, a few states have tried work requirements in their Medicaid programs with disastrous results, but this is the first time we are seeing them implemented at this scale in Medicaid. Currently, 44 states will be required to implement work requirements.
H.R. 1 requires states to implement these new requirements by January 1st of next year, but states have the option to implement sooner. So far we’ve seen four states do this. Nebraska, Montana, Arkansas, and Georgia. Georgia already had work requirements in place when H.R. 1 was passed.
In June, the Centers for Medicare and Medicaid Services or CMS issued an interim final rule that we abbreviate as IFR. This rule details how states must operationalize the H.R. 1 community engagement requirements. There is a comment period which Gelila will tell you more about, but those comments will not be considered prior to the rule taking effect at the end of this month.
Key takeaways. The IFR goes beyond the statute and will make it more difficult to access exemptions from community engagement requirements. It adds new inability to work criteria to the exclusion for medical frailty, and it undermines state’s ability to use ex parte review to automatically verify exclusion. Because it’s complicated and a departure from the statute, states are going to have a difficult time getting their systems ready by January.
So looking at how the CE requirements apply to individuals, the law is clear that states must implement CE for most adults ages 19 to 64 who are enrolled in either the Affordable Care Act Medicaid Expansion Program or enrolled in an 1115 demonstration waiver that provides similar coverage. Some people are not part of the Medicaid population subject and some are but are still excluded or accepted. Older adults age 65 plus people dually eligible for Medicare and Medicaid of any age and people enrolled in a Medicaid pathway based on age or disability are not subject to work requirements.
Those who are called applicable individuals in the law and the rules. And these individuals must show one of two things to keep their Medicaid coverage. They must show they fall into a mandatory or short-term hardship exception and can be deemed compliant or they must demonstrate they are working or completing specific community engagement activities.
This flow chart illustrates how to identify who is subject to the requirements and mirrors the order that CMS directing states to follow in making this assessment. The first question on the left is whether someone is an applicable individual. If not, then they’re not subject to the CE requirement and states should not require these individuals to provide any further information. If the individual does meet the initial applicable individual criteria, the second question is whether they’re a specified excluded individual. If yes, then under the law, they’re excluded from the CE requirements.
And I’m going to turn it over to Gelila to explain more in detail about these different criteria. Gelila.
Gelila Selassie: Yeah, thank you so much, Natalie. So as Natalie mentioned, this flow chart is aimed to guide mostly older adults who might be subject to these community engagement requirements. And so there is a sort of threshold question of are they an applicable individual, which Natalie just explained, or if they meet the criteria for specified excluded individuals, which we’ll discuss further. From there, there’s other exceptions and exclusions that may apply. Basically one is through a mandatory exception or a short-term hardship exclusion. As Natalie mentioned, this is all very complicated policies. I was just on a call with a lot of CMS officials who stated that they’ve been taking months trying to clarify what all these distinctions mean. So it is pretty complicated and we’re going to go through it a bit more detail through this webinar, but this is mainly meant to be a bit of a reference for those who would be applicable as well.
Next slide. And then just to clarify for applicable individuals, it is referring to the expansion or population. So that’s adults aged 19 to 64 in states that expanded Medicaid. So individuals enrolled in Medicare or anything else are not considered applicable individual. And similarly, we’ll also discuss that there are certain 1115 waivers that apply to the Medicaid expansion population, but it’s not done through Medicaid expansion. So those are the only categories of people who would be within this world of work requirements. And then from there, that’s where the flow chart takes effect in determining specified exclusions, if they’re specific excluded individual, if there’s a short-term hardship, or some of these other individualized circumstances.
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And so in terms of demonstrating compliance, that means that at a minimum, somebody must provide at least 80 hours of work, volunteering, education, or job training per month. The IFR lays out the process for states on how to count hours for education or how to consider all of these activities in tandem, but those 80 hours can be met in combination. So it could be 10 hours of work, 20 hours volunteer, so on and so forth. The IFR also lays out in detail what is considered appropriate for volunteering, whether it’s a nonprofit, whether it’s something private, excuse me, as well as education and job training. One really important thing to note is that in the press and in a lot of communications, people have been referring to the 80 hours requirement, and that is true, but somebody can also meet these requirements by earning at least 80 times the federal minimum wage each month, which in 2026 is $580 a month.
That’s really important because the federal minimum wage is something like $7.25 an hour, more or less. Many states have much higher minimum wages than that. And many companies, even if they’re in states that have a federal minimum wage, may be paying more than that even for what we’d consider low wage workers. So a lot of people might be able to meet these work requirements by only working 40 hours a month or 50 hours a month if they are earning well above the federal minimum wage if they’re earning $15 an hour or so. So that’s really important to note as well. And then again, because we refer to these as community engagement requirements, even though that is a mouthful, that is because we really want to make sure that people who are volunteering or in school as well as work are included in this group so that they can receive their Medicaid.
Next slide. So when an individual must be in compliance is one aspect that’s actually pretty confusing. And this is a place where states have a fair amount of discretion and how it can be implemented. So the law requires the applicable individuals, again, that’s those enrolled in the Medicaid expansion populations or similar 1115 waivers. Those individuals have to comply with the requirements at least one month prior to enrolling or being redetermined eligible for Medicaid. So states, however, do have the option to require compliance up to three months prior to enrollment. So this means that if someone is enrolling in coverage in January, they might have to shift, and this is enrolling in Medicaid expansion or similar 1115 in January. They would’ve to show at least in December that they met the community engagement requirements. And then it could be in a state that says, “Actually, you need to show us that you had up to three months, two or three months of work, job training, education, volunteering before your Medicaid can start.” So it’s meant to be retroactive at least one to three months, which we’ll discuss further.
And then states must check the compliance with the community engagement requirements at redeterminations, which is now for the expansion population every six months instead of annually, which it has been and continues to be for all the other Medicaid groups. However, states can choose to check more frequently. When we’ve seen work requirements implemented briefly in Arkansas and Georgia, this was one of the biggest issues, is having more frequent reporting makes it that much easier for somebody who is actually eligible and actually meeting these work requirements to lose coverage because of problems with reporting mechanisms. So more frequent reporting is allowed but not encouraged by advocates because it can lead to people losing coverage due to clerical or administrative errors. And then for individuals who meet an exclusion, states cannot require individuals to report that they have met the exclusion for more frequently than six months. And for the specified exclusion that’s based on medical frailty, the new rules specify that states have the option to verify eligibility every 12 months instead of every six.
So we encourage states, which we’ll discuss at the end with advocacy, to take the biggest amount that the statute allows and the rules allow for determining whether someone is in compliance or meets an exclusion.
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And so this is a really helpful chart that CMS put out late last year that shows how states need to provide outreach to individuals in order to make sure that they’re aware of the reporting requirements. And basically what this shows is three situations where depending on when the state requires how much retroactive or how long of a lookback period, that depends on how early the state must provide outreach. So all states must implement by January 1st of 2027. In option one, the state is deciding to just take the minimum amount required by statute, just one month retroactive look-back period to se if someone got compliance. So someone applying or renewing in January would have to show that they met the community engagement requirements in December, which means that the state would have to provide outreach to beneficiaries by September, so at least three months before the date when they have to show compliance.
Option two is a state that requires two months of retroactive compliance with work requirements before they get Medicaid in January or apply for Medicaid in January. And so again, that means that the state would have to provide sufficient notice of these changes by August because they would need ideas the beneficiary needs at least three months to get their job training, education, work, what have you. And then option three states is the least ideal situation where a state is requiring three months retroactive in which case states would have to this month in July provide that outreach and notice to beneficiaries.
Next slide. And so now we’re going to go into these exclusions that we’ve been talking about. And again, this is really complicated, so just bear with us a little bit as we try to explain it. Next slide. So we’ve reiterated a few times that not all individuals are subject to work requirements. It’s only those that the statute defines as applicable individuals. That means the 41 states that have expanded Medicaid under the Affordable Care Act. So back in 2013 and since then, several states have opted to expand Medicaid to adults aged 19 to 64 with incomes below 138% of the federal poverty level where they don’t have to meet an asset test and they don’t have to show that they’re disabled in order to get Medicaid. Those are the people that are now subject to the work requirements. So that’s the first category and that’s relatively easy to understand.
Now, the second category is much more complicated. So in addition to the expansion population, pretty much almost every state has some sort of 1115 demonstration waiver. And many of those states have demonstration waivers that provide minimum essential coverage to that adult expansion population. So those 1115 waiver populations, not all 1115s, but just the set number of ones will be subject to these work requirements.
So some of these 1115s are easy to identify. For example, Georgia and Wisconsin have an 1115 that’s pretty much identical to Medicaid expansion, and they added those 1115s in lieu of traditional Medicaid expansion. So it’s pretty clear that it’s an expansion with some more restrictive income limits or added requirements or things like that. But there are other states and other programs that are much more difficult to discern. And so we’ll discuss that on the next slide, but it’s really important to note that some of these 1115s actually occur in non-expansion states.
So if we can move on to the next slide, this is a chart that CMS put out in a webinar last month that shows the 1115 waivers that CMS already identify as individuals who would be subject to work requirements. We’re told also that CMS will be doing a systematic review to check even more, because as we said, there’s dozens and dozens of these 1115 waivers that are varying complexity for various populations. So there’s a decent chance that there will be more that CMS identifies as people who will be subject to work requirements. One thing to note is that these 1115s subject to the community engagement requirements apply to individuals who do not meet a mandatory Medicaid population. So for example, states have to provide Medicaid to parents and caretakers who have incomes below 42% of federal poverty level. A state like Tennessee is providing Medicaid through an 1115 for parents and caretakers who earn above that 42%.
So even though parents and caretakers are a mandatory coverage group, that only applies to parents and caretakers earning below 42%, whereas Tennessee is applying coverage to above 42% and those above 42% under that 1115 will be subject to the work requirements. Again, this is all very complicated. We’re hoping to get more information from CMS to provide to states and advocates to explain this in a little bit more detail.
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And then as I mentioned earlier, there are a few different categories of exceptions and exclusions. The first are mandatory exceptions, which are typically people who have had a change in circumstances and thus are deemed compliant. So we’ll walk through a couple examples of this, but this generally applies to people who are under age 19, enrolled or entitled to Medicare, which includes people who are duly eligible. So those receiving Medicare savings programs. People receiving Medicaid under a mandatory Medicaid eligibility group. So for example, people enrolled in aged blind disabled pathways, SSI or medically needy share of cost, individuals who are incarcerated or recently incarcerated and specified excluded individuals, which we’ll discuss further.
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So we just said that the work requirements only apply to individuals enrolled in Medicaid expansion or assembler 1115. So why do we bring up these mandatory Medicaid groups and Medicare when we’re talking about these exceptions? This is because applicable individuals may often become eligible for a mandatory exception that deems them compliant for a review period. For example, if someone is enrolled in Medicaid expansion then becomes eligible for Medicare. Say they were receiving SSDI and enrolled in a Medicaid expansion while they’re waiting for Medicare to kick in after 24 months. That individual who has now become eligible for Medicare will be deemed compliant for their entire review period. Similarly, someone could be on Medicaid through a disability pathway, but if they go over the asset limit and then they enroll in Medicaid expansion and then thus they’re deemed sort of exempted for that review period, or an expansion enrollee could become incarcerated and thus becomes exempt for that period.
So that’s why these changes in circumstances apply and that’s where the mandatory exceptions are really useful for determining when somebody is exempt. Next slide. And then another big category of people who are excluded are these specified excluded individuals. There’s quite a few and the ones we’re going to be really focused on are the medically frail individuals and parents, guardians, caretaker relatives, or family caregivers of a dependent child aged 13 or under or a disabled individual. Other categories under specified excluded individuals include foster care or former foster care youth under 26, American Indians, Alaska natives, Californian Indians eligible for Indian health services.
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There’s veterans with a total disability rating. Individuals who already meet work requirements under SNAP or TANF. And then there are members of households that receive SNAP benefits who are subject to SNAP work requirements, either the general work requirements or the time limited one. Participants in a qualifying substance use disorder treatment program and then incarcerated or recently incarcerated individuals.
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So as you can see, there is some overlap between the groups and the mandatory exceptions and those unspecified excluded individuals. Now, the reason this distinction is important is because specified excluded individuals are not applicable individuals. Applicable individuals must show compliance or exception with these requirements prior to enrollment or renewal. However, a specified excluded individual just shows that they’re excluded for the month of application or renewal. So it’s not retroactive for specified excluded individuals. However, someone under the mandatory exception category is an applicable individual. So they must show that they met one of those mandatory exceptions retroactively either one, two or three months prior to their enrollment or renewal, depending on what the state chooses.
And then just a reminder that these exclusions like the medically frail caregiver, former foster youth, et cetera, these specified excluded individuals cannot be verified more than their six-month renewal period and states can choose to verify medical frailty every 12 months instead of every six months.
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So here’s an example that will hopefully help make this distinction a little bit clearer. So say Dev is the caretaker of a 13-year-old son who turned 14 in May. His Medicaid renewal was also in May. And so because he is a parent caregiver of a 13-year-old child, he’s excluded from the work requirements. He’s considered a specified excluded individual because the month of his application or renewal, he was the parent of a child age 13 or under. And if someone meets the exclusions for part of the month, they’re considered to have met it for the whole of the month.
But now consider if his renewal was in June instead of May. So his son turned 14 still in May, but because that’s retroactive and specified excluded individuals apply for that month of application, he would need to show that he either met one of those mandatory exceptions in the prior months or that he met a different exclusion for June. So maybe if he was medically frail or a veteran with a total disability or so on and so forth. So this is why that exclusion matters, is purely for determining when that exclusion applies, if it’s prior to the application or renewal or in the month of application or renewal.
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And then we’ll go into a little bit more detail about other aspects of the interim final rule.
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So we briefly mentioned earlier that the IFR did make some of these exclusions more restrictive than the statute. So looking at the medical frailty, which you said in the past is not a term advocates love, but that’s the term in the statute. But under the statute, someone qualifies for the medically frail exclusion if they are blind or disabled under social security rules, have a substance use disorder, a disabling mental disorder, a physical, intellectual, or developmental disability impacting one activity of daily living. So that could be mobility, bathing, eating, toileting, or a serious or complex medical condition. So that’s it. Under HR one, it was just these five categories. You met one of these, you were excluded.
But the IFR added a second prong to these five requirements, these five categories that were not in the statute and that is whatever category this person is under must significantly impair their ability to comply with the community engagement requirements.
So that is a pretty significant restriction because now you don’t just have to show that you have one of these five categories of a disabling condition, but you also have to show the extent that that condition impairs your ability to work or go to school or so on and so forth.
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And so our friends at KFF have this really helpful chart that explains that two-pronged approach. So again, HR one only had that first column, those qualifying conditions for saying someone can receive this exclusion. And then the IFR added that second box that was not in the statute. That is pretty limiting. Next slide. And so there are some pretty big issues with this new IFR restriction on medically frail.
One of the big ones, that’s a little complicated, but is that an inability to meet the community engagement requirements differs from the social security standard for substantial gainful activity. So under social security rules, somebody is considered disabled if their disability prevents them from earning at least $1,690 a month in 2026. So that’s the substantial gainful activity level.
However, the community engagement requirements are much less than that. So an SSDI recipient can meet that first prong because they are found disabled by the Social Security Administration, but a state Medicaid agency could determine their disability does not impair their ability to meet the community engagement requirements. So maybe they’re too disabled to earn $1,690 a month, but they’re not too disabled to earn $580 a month or attend school halftime or volunteer or provide job training.
So that is pretty significant. I’m really hoping that states aren’t going to be this difficult in terms of creating this whole new disability determination of whether somebody meets 80 hours or $580 when they already have a clear disability determination. But because the IFR added that second prong that their condition must impair their ability to meet these engagement requirements, there’s a chance that states can do that, which would be incredibly difficult and burdensome for definitely the individual, but also the state.
The other problem with that second prong is that it makes ex parte significantly harder. So ex parte review is when the state uses existing data sources to verify someone’s eligibility without requiring the individual to complete forms or submit documentation. CMS has stated that both in the IFR and in communications prior to the IFR coming out, that for work requirements, they were going to try to ease that burden that we’ve seen when Georgia and Arkansas implemented by making sure states could utilize ex parte review by beefing up their systems, looking at things like claims data from providers to minimize that burden on individuals. But there is no database that exists that gives this kind of specificity of someone’s inability to work or attend school or volunteer.
The claims data and other data that CMS has been looking to say why ex parte can be used so well is really limited to just the person’s diagnosis or prognosis. There isn’t any kind of searchable data that shows someone’s arthritis stops them from, can only allow them to work $500 a month, but not 800 or 600. That just doesn’t exist. They’re going to get claims data for reimbursement for a service for their arthritis, or there might be some other documentation that shows they have this diagnosis or this type of prognosis, but it’s not going to be more specific than that. So in essence, ex parte review will be significantly harder if not impossible because of the second prong.
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And then another issue with the IFR is when it comes to medical frailty is that it doesn’t allow any presumptions by either the state or CMS to make a presumption that a condition would exempt somebody from meeting the community engagement requirements. So in the months prior to the IFR coming out, states had already been developing diagnostic codes that would meet the medically frail exclusion categories pretty easily. This idea of using that ex parte data from providers, from managed care organizations or whoever to say that someone has this diagnosis, has this condition, they qualify, we don’t need to do any extra work or have the individual submit any extra information.
However, that IFR kind of makes those diagnostic codes pretty moot because it doesn’t matter if they have that diagnosis now they have to show that the diagnosis or condition substantially impairs their ability to meet these community engagement requirements. So that means that all sorts of really disabling conditions doesn’t get this presumption that you can meet the work requirements and you get this basic healthcare that in many ways makes that condition more manageable and easier to treat. CMS did hold a call immediately after the IFR because there was a lot of talk about this in the press and advocates were bringing up the example of somebody with stage four cancer, pretty debilitating. And they said that in that call that maybe something like stage four cancer could be presumed to substantially impair someone’s ability to work or engage in the community engagement activities.
But that is not in the preamble or the IFR. So no states can’t really hang their hat on that. It’s really important to be able to have a series of conditions that can have this presumption because again, otherwise states have to go through this really complicated disability determination process for something as basic as healthcare. So even though CMS stated that on a call, it is by no ways binding. And we have no idea if there’s going to be any additional guidance that says, “Oh, here’s a list of conditions that we’ll presume.” Because again, that wasn’t in the IFR.
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So despite all the bad that I just talked about, states do still have some discretion when it comes to defining medical frailty and can use some diagnostic codes to meet that first prong. The biggest restriction that the IFR puts is in the second prong, but the IFR was actually pretty broad in terms of what states can use to define medical frailty. So for example, in the IFR for substance use disorder, the only restriction that the IFR places is that it excludes individuals who’ve been in recovery for five or more years. Beyond that, states have discretion to define it further. The only requirement for disabling mental disorder in the IFR is that it must be disabling. For a disability impairing at least one activity of daily living, the IFR states that states cannot consider limitations and instrumental activities of daily living. So that’s things like bouncing checkbooks, paying bills, et cetera.
And then for serious or complex medical conditions, the IFR just states that they’ll consider serious, complex, or serious or complex conditions. And it does provide a list of conditions that might not be considered serious or complex. They’re the more common ones, things like asthma, diabetes, hypertension, arthritis. But again, just because it states that they likely won’t consider that serious or complex doesn’t mean that it’s not. So states can still utilize diagnostic codes and diagnoses to determine if somebody meets the medically frail, one of these categories of medically frail. And then the IFR did specify that states cannot add additional categories to medical frailty. So for example, homelessness can’t be added.
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And so we talked about the medically frail exclusion. The other big specified excluded individual category that we’ll discuss is caregivers. So the exclusion applies to parent, guardian, caretaker, relatives, or family caregivers of a dependent child aged 13 or under, or someone providing care within a broad range of assistance to a disabled individual. And the IFR specified that they’re using the ADA definition of disability to determine if that individual is disabled for purposes of their caregiver receiving the exemption. The IFR differs from the H.R. 1 from the statute, because the statute references the RAISE Family Caregiver Act in defining family caregiver, which states that a family caregiver is someone who provides care to an individual with a disability, chronic condition, or functional impairment. While the ADA definition of disability is broad, the inclusion of chronic condition or functional impairment is really crucial because many older adults do not identify as disabled.
Now, the IFR preamble does state that there’s no upper age limit for disability. So older adults who meet the ADA definition of disability should still qualify. Their caregiver should still qualify for this exemption. However, regardless of how broad the definition of disability is, in practice, older adults just don’t consider their disabling conditions as disabled. They might view it as signs of aging and less likely to identify themselves as such. So that’s why that broader language from the RAISE Family Caregiver Act would be really critical and really helpful to expanding this exemption.
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And then there are some other issues with the IFR restrictions on the caregiver exclusion. For one, the IFR restricts the family caregiver exception to people related to or living with the disabled individual. So again, H.R. 1 uses the RAISE Family Caregiver Act, which is pretty broad in stating that someone who has a substantial relationship with the disabled individual is a family caregiver. However, because of this residency and relational requirement, it ignores a lot of chosen family that many vulnerable disabled and older adults really rely on, especially marginalized ones. So LGBTQ individuals, formerly incarcerated individuals and immigrants often are separated from their families for a variety of reasons and are much more likely to rely on close friends or neighbors for support. And then just as a note, CMS is using the definition of caretaker relative as it exists in other aspects of the Medicaid program.
So that includes parents, grandparents, stepparents, aunts, uncles, nieces, nephews, and first cousins. And then caregivers who do not meet this definition can only qualify for the exception if they provide at least 80 hours of care monthly. If someone is not providing 80 hours of care, then the caregiver can just be compliant with the work requirements by combining the 80 hours of care with work, schooling, job training, volunteer, et cetera.
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And then another issue is how the caregiver exclusion will be verified. In 2027, states can use self-attestation or also the IFR refers to it as self-declarations to determine if an individual meets the caregiver exclusion. So this means someone can under penalty of perjury sign a document saying that they are providing care under the definition in the statute in the IFR. However, in 2028, states must first require documentation if no reliable data exists, including documentation to verify if the person is being cared for. The IFR is pretty vague here. So it’s not clear when they require other documentation what does that mean? It could still include self-attestation, but it’s not very clear. So to the extent that your state is able to provide a broad definition when CMS doesn’t state expressly that there is no self-attestation, it’s really crucial they do that. And the reason is because family caregivers by definition have a very close informal relationship with the person they’re caring for. They aren’t going to have formal contracts or anything like that, and the care they provide is very sporadic. It might be 10 hours one week and 20 hours another.
So we’ll talk about the comments that advocates can provide for the interim final rule, but this is a great place to highlight the different ways that family caregivers provide crucial care in a manner that does not meet the IFR definition. And that would be very difficult to document. And thus, it’s imperative that documentation be very broad to include things like attestations or maybe documentation by the disabled individual. And then similarly, the IFR prohibits states from requiring personal information from the disabled individual receiving care to prove that they are in fact disabled. Another area where some sort of documentation or self-attestation would be really helpful or rather third-party attestation from the person receiving care. So even though the IFR prohibits states from acquiring that disabled individual to submit their medical records or other private information, you can imagine that this individual who has a close relationship with a caregiver could feel that pressure to submit personal information in order for their caregiver to not lose coverage.
So that pressure could still be there, which is why again, it’s really important that states apply the broadest possible verification options so that caregivers and caregivers don’t feel that pressure. Next slide. And then the last category of exclusions relates to this optional short-term hardship. So states can include the following hardships in their state plans. Again, they don’t have to include this, but they can opt to. So the first is if the individual received inpatient hospital, nursing facility, ICF, IIDD, inpatient psychiatric facility, or other such services of similar acuity. If the individual resides in a county where there’s an emergency or disaster or the unemployment rate is at or above the lesser of 8% or 1.5x the national rate, or if the individual must travel outside their community for an extended period of time to receive medical services necessary to treat a complex condition for themselves or the dependent. For the first and third hardships, if the state does adopt these hardships, then the individual has to apply for the first and third one. And the state is to provide information to beneficiaries if they adopt these hardships on how to do that.
The second hardship would be applied as a blanket waiver in states that opt for these hardships. So it would be applied by the state and it’s not something the individual would have to apply for. And then remember, these short-term hardships apply to applicable individuals, which means they must show they met the hardship in the one, two, or three months prior to application or renewal. And then if a state chooses one hardship, they have to choose them all. So they can’t pick and choose which one of these three. They have to choose them all or none. Next slide. And then we’ll look at the reporting requirements.
So states, as you mentioned, must first verify compliance or an exception ex parte, which means they must use reliable data available to them before requiring the individual to provide verification or documentation. And then as we mentioned, states can accept self-attestations for these exceptions until January 2028 if they do not have data available to them.
Now for medically frail individuals after January 2028, states can only accept the attestation one time per enrollment, not for the beneficiary period. So we’ll skip the next slide about where we’ll discuss implementation and challenges and go straight into what advocates can do at the state level. We encourage your state to do the least amount of harm. And we know that there are different sort of political motivations and different circumstances across states that many states have different feelings about Medicaid, but everyone has a Medicaid population. There’s a population covered under Medicaid that even the biggest Medicaid critics do actually care about.
And so keeping that in mind, it’s important to limit the damage of work requirements by urging states to minimize the compliance and reporting period. So only require individuals, applicants and enrollees to show one month of compliance instead of that three month of retroactive compliance and then only review exclusions every 12 months. You can urge your state to take up those optional hardships and then consider legislation for your state to make sure that the state Medicaid officials are taking the least burdensome option.
Next slide.
For the sake of time, I won’t go into all this in detail, but this is just example of negative legislation that was drafted prior to the IFR implemented by North Carolina’s legislature where they adopt the basically most harmful ways of implementing work requirements. So it requires at least three months of compliance retroactively before they apply, three months within that six-month review period for renewals, prohibits self-attestation or unless required by law and it’s optional under the IFR.
And then states will conduct monthly data checks instead of quarterly data checks, which means that again, if there’s fluctuations or anything minor like that, the state could flag it and that’s just one more opportunity for someone to lose Medicaid.
Next slide.
So as I mentioned, there is a population. Medicaid is so broad and there are going to be caregivers, disabled individuals, veterans with less than total disability rating, some individual who’s going to be impacted by these rules. So it’s really important to partner with other advocacy groups and share crucial communication so individuals know about these changes. And then when you’re advocating with state officials or with your state legislature, paint that picture of who is going to be harmed by this that they might not have thought about. And then as always, please share your stories. And then lastly on the next slide we have a justice in aging toolkit that provides an overview of the work requirements with a principles document that’s been updated, and then includes a template letter for recommendations to minimize coverage loss as well as a template comment for the interim final rule.
Next slide. So here’s just the snapshot of that template IFR comment. It should be very personalized with examples. There’s no need to be super in depth on legal policy or policy arguments. As we mentioned, drawing on examples and hypotheticals really paints an important picture for CMS. And then just to clarify, the IFR differs from normal rulemaking. The IFR will go into effect on July 31st, but submitting comments is still helpful for establishing future guidance and also establishing an official record that shows why people are opposed to this or how people will be harmed. And the deadline for comments are due July 31st. Next slide. And then as you mentioned, we’ve had this template letter up for quite a few months, but we’ve updated to comply with the IFR. We encourage you to customize it heavily for your own state officials, personalize it with the name of your own Medicaid program. And then again, be sure to use client examples and real-world hypotheticals.
And with that, we have a list of resources that you’re welcome to look at. Our healthcare defense page includes a lot of information about other aspects of H.R. 1 that we didn’t get to, but some of the other changes to Medicaid and Medicare. And then I know we only have five minutes, but I’m happy to take some questions now.
Natalie Kean: Let’s see. Thank you so much, Gelila. As we’ve noted, this is extremely complicated and you all have asked a lot of really great questions in the chat. We have over a hundred of them and we’ll get to as many as we can in follow-up email, but just a couple of themes I saw there were some questions about whether dually eligible individuals are excluded from the work requirements, including those who are enrolled in Medicare savings programs and those who receive full benefit Medicaid.
Gelila Selassie: Yes, those individuals who are enrolled are entitled to Medicare and those who are duly eligible for Medicaid and Medicare, whether they’re partial, dual or full dual, are excluded completely under that mandatory exception category.
Natalie Kean: Thanks. And then how about people receiving SSI or supplemental security income? When are they excluded?
Gelila Selassie: Yeah, they’re also excluded under that mandatory exception group because SSI is a mandatory Medicaid pathway. One thing to note is very often someone with SSI might lose their SSI, maybe they go over the asset limit or income limit or whatever, but they are still disabled. In that case, that’s when somebody might be enrolled in expansion Medicaid and would then have to go from being in a mandatory exception category to have to show that they’re a specified excluded individual under that medically frail exemption.
Natalie Kean: Thanks, Gelila. And there were some questions about people experiencing homelessness or who are unhoused. Is there an exemption for them from the work requirements?
Gelila Selassie: Unfortunately not. There was a state that tried prior to the IFR, did try to include homelessness as a medically frail category, but that in and of itself is not an exception. Instead, what could qualify is if they have a substance use disorder, enrolled in a recovery treatment program, have a medical frailty, anything like that is probably where a big number of the unhoused population would qualify. But unfortunately, there is no blanket exemption for the unhoused.
Natalie Kean: Yeah. And I would say there were questions about other conditions and so on here and there is going to be a lot that’s dependent on the state, but all in all is just the important thing right now is to provide these examples both to your state and to CMS in response to this rulemaking to show all of the people that are going to have a difficult time complying with these requirements. There were some questions too about the section 1115 waivers and finding out if your state has one that might be subject to the work requirements. The list that Gelila shared in these slides is what we know so far. Those are the 1115 waivers that will have to comply with work requirements CMS reviewing, and so there may be more added to that list. We will let our network know if that list expands. But some astute observers notice things in that list like waivers for youth, that aren’t youth exempt.
Well, yes, but some of those waivers cover people up to age 21 or 26 maybe. And so again, it’s all very confusing. We’re trying to figure out and states are trying to figure out how to operationalize this, but that is why some of those waivers that look like they might not be applicable are on the list.
All right. Well, I think we will leave it there for today. Again, thank you all so much for joining us, for asking such great questions. We’ll get to as many of them as we can, and it really helps inform our resources going forward. And a big thank you to Gelila for walking us through that very complicated information.
Gelila Selassie: Absolutely. Thank you, Natalie, and thank you everyone for joining. As you mentioned, please feel free to reach out to us. Please look at that toolkit for helps with your own comment as well as just additional information and tools to help you advocate for your state. So with that, I think we’ll close the webinar. Thank you all so much and I hope you have a great day.
