Kentucky’s Medicaid Work Requirement Ruled Illegal

On June 29, Federal District court Judge James Boasberg ruled that Kentucky’s Medicaid Work Requirement could not be implemented. The decision came down two days before the program’s July 1 start date. The plaintiffs, 15 Kentuckians enrolled in Medicaid, were represented by lawyers from the National Health Law Project, Kentucky Equal Justice Center and the Southern Poverty Law Center.

Judge Boasburg wrote in his decision that “the Secretary [Tom Price, Secretary of DHHS when the suit was filed] had not fully considered whether Kentucky HEALTH would in fact help the state furnish medical assistance to its citizens, a central objective of Medicaid.” As a result of this omission, the Judge found the requirement to be “arbitrary and capricious”. Boasburg added that, “although Kentucky estimates 95,000 people will lose coverage, he [the Secretary] says none of the Plaintiffs here has shown such a likelihood.”

Kentucky will likely appeal this decision. Other states that have received, or applied for, permission to implement Medicaid Work Requirements are watching this case closely. Vox.com reports that, prior to the decision, Kentucky Governor Matt Bevin issued an executive order that effectively threatens to withdraw the state’s Medicaid expansion if the court decision prohibits work requirements. He has the power to do so at any time with only six months’ notice. This would leave some 400,000 Kentuckians now covered through the expansion without any insurance.

The Washington Post quoted Jane Perkins, Legal Director of the National Health Law Project, as noting in her statement last Friday that, “the purpose of the Medicaid Act is to furnish medical assistance, and this approval could not stand because it was doing just the opposite – restricting coverage. There are better – and legal – ways to help people find work – job training, child care, affordable transportation, and a decent minimum wage.”

What Happens When People Can’t Afford PrEP?

PrEP (Pre-exposure Prophylaxis) is now an accepted tool for reducing the spread of HIV and one of two central biomedical strategies for ending HIV spread – along with regular treatment to bring HIV below detectable levels in people living with HIV.

In a June 30 report, however, NPR pointed out that the climbing price of Truvada (the only ARV approved for use as PrEP in the US) is hindering efforts to expand PrEP uptake. Between 2012 (when the FDA approved Truvada as PrEP) and 2016, NPR reported, its “wholesale price has increased by about 45%” and it “now carries a list price of close to $2,000 for a 30 day supply.”

PrEP is not covered by Ryan White Care Act funds which cover HIV treatment but not prevention. But some states are incorporating PrEP assistance into their RWCA clinics by having their RWCA staff provide PrEP counseling, medical evaluation, monitoring and assisting patients in locating sources for PrEP funding to help clients interested in taking it. DHHS’ HIV/AIDS Bureau eAlthough Medicaid covers the cost of PrEP, getting coverage for it through commercial insurance can be very challenging. The increasingly restricted use of copay assistance coupons (thanks to the spread of copay accelerator systems, see 6/1/18 Weekly Advocate) and the increase in co-payments required by commercial insurers in addition to standard deductibles are rendering many people who need PrEP less able to afford it. “Gilead will waive up to $4,800 in out-of-pocket expenses for commercially insured patients”, NPR reports, but that doesn’t go far when the pills cost is $2,000 per month encourages this approach.

Gilead provides other financial assistance to uninsured and under-insured consumers. But, right now, CDC estimates that over 1 million Americans are at high HIV risk. Gilead reports the current number of Americans PrEP consumers as about 167,000.


View the latest HIV Policy Update here.