Wisconsin may soon become the first state in the nation to require hundreds of thousands of its Medicaid recipients to take drug tests in order to maintain their health coverage. The state has been waiting for nearly a year for approval from the Trump administration to move forward with the proposal, and the answer is expected in the next few months.
Health care workers, legal experts, and patient advocates in the state tell TPM that the proposed measures will cause thousands of Wisconsins to lose their health coverage — both those who attempt to comply and fall through the cracks and those deterred from applying due to the new requirements. Though the Trump administration has already approved Medicaid work requirements in four states, and has signaled that at least eight more could be on the way, the mandatory drug testing is a new and legally questionable frontier — never before allowed in Medicaid’s half-century history.
The Centers for Medicare and Medicaid Services (CMS) declined to answer TPM’s questions on when a decision will be made on Wisconsin’s waiver and how the administration views the drug testing proposal. Wisconsin’s Department of Health Services declined to answer TPM’s questions about the new requirements.
New Hurdles for BadgerCare
Wisconsin’s Medicaid waiver submitted to the Trump administration last December seeks to subject childless adults on the state’s Medicaid program — dubbed BadgerCare — to a mandatory drug screening as a condition of their eligibility. If someone refuses to answer the drug screening, a written Q&A, they will be booted from Medicaid. If they indicate on the form that they have used illegal drugs, they will be required to take a drug test. Refusal to take that test means losing Medicaid benefits. Testing positive and refusing to participate in a substance abuse treatment program also means losing benefits.
If treatment for drug addiction is not immediately available, the person will be allowed to remain enrolled in Medicaid until there’s an opening. Wisconsin acknowledges that this may be a common outcome, as the state, despite having a population of nearly 6 million residents, has only 60 certified drug treatment facilities with a total of about 900 beds.
Under Wisconsin’s original proposal, people who lost coverage due to the failed drug test would be locked out of Medicaid and unable to reapply for six months. But after a massive public backlash, the state amended the waiver to allow people kicked off of Medicaid to reapply for benefits at any time after agreeing to seek treatment for a drug addiction.
The state estimates that nearly 150,000 people would be subject to the requirement, and predicts that at least 5,100 people could consequently lose their Medicaid.
“The goal of the drug screening and drug test is to identify individuals with unmet substance use disorder treatment needs and connect them with appropriate treatment,” Wisconsin’s waiver reads. The request to CMS includes statistics on how dire the addiction crisis is, noting that “the number of citizens who die due to a drug overdose exceeds the number of those who die from motor vehicle crashes, suicide, firearms, or HIV” and that opioid-related overdose deaths tripled between 2003 and 2014.
Gov. Scott Walker’s spokesman Tom Evenson told the Associated Press that the new rules will also help people struggling with addiction to become better workers, which will in turn help the companies they work for.
“The governor hears from employers all the time who say they are looking to hire people who are ready to work and able to pass a drug test,” he said. “If someone fails the test, we offer treatment at no cost to them so they can get healthy and back into the workforce.”
Patient advocacy groups in the state see a different motive behind the proposal.
“This is just political red meat for Governor Walker’s reelection,” Robert Kraig with Citizen Action of Wisconsin told TPM. “It’s playing into stereotypes about people who need public assistance, and promoting the idea that they’ve done something wrong and we need to punish them.”
Is it legal?
As Wisconsinites wait to learn whether or not the Trump administration will give Medicaid drug tests a green light, many state and national groups have questioned whether the practice violates federal law and the U.S. Constitution.
“Suspicionless drug testing raises constitutional concerns,” the American Civil Liberties Union wrote in a letter to Wisconsin officials. “People have the right to be secure from unreasonable government searches, including searches that implicate their bodily privacy, absent sufficient legal justification. Federal courts have concluded that public assistance drug testing fails to meet that standard.” The ACLU pointed to a 2013 circuit court ruling in Florida that found that drug testing of welfare recipients caused them to be “stripped of their legitimate expectations of privacy” simply “by virtue of poverty.”
The ACLU additionally notes that because people of color are overrepresented in the Medicaid population, the state’s proposed drug testing regime may also run afoul of federal civil rights laws. Black and Latino people make up just 12 percent each of Wisconsin’s population, but constitute 26 percent of the state’s Medicaid rolls.
“Thus the waiver request may constitute a policy or method of administration that has a racially discriminatory effect, in violation of Title VI of the Civil Rights Act and its implementing regulations,” the ACLU’s letter states.
Other health care experts tell TPM that Wisconsin’s waiver has many of the same legal issues as Kentucky’s, which is currently being challenged in federal court. They argue that the Medicaid law Congress originally drafted does not allow states to impose additional eligibility requirements, and that things like work requirements and drug testing do nothing to further Medicaid’s goal of providing health care to low-income people.
“It really might not stand legal scrutiny,” Bobby Peterson, the executive director of the public interest law firm ABC for Health, told TPM. “This was never part of the intent of Medicaid. These were not items that were part of the statutory language, and it’s hard to understand how this will promote the program in any way.”
Wisconsin’s waiver may face additional legal problems because it says explicitly that members of Native American tribes are not exempt from the drug testing requirement — something legal experts and members of Congress say violates federal law and tribal sovereignty. In the state’s waiver application, Wisconsin notes that Native American groups in the state say they will be particularly harmed by the new rules: “Tribes expressed concern that there is a significant lack of Medicaid-certified substance abuse treatment providers available to serve tribal members.”
Access to treatment is not just an issue for tribal members. Amy Pease, a nurse practitioner in Madison, told TPM that one patient of hers who lives in a small, rural town outside the capitol city and is struggling with an opioid addiction has to take a taxi for more than an hour each way to access a methadone clinic.
“There’s a whole bunch of people who want treatment but who can’t afford it or can’t get to it,” she said. “So this rule seems like a backwards way of helping people. You’re just putting a moral judgement on addiction, and making addicted people out to be bad citizens who deserve to have their Medicaid taken away.”
As health care advocates await the outcome of the law suit against Kentucky’s Medicaid work requirement, Peterson told TPM that his organization is already in contact with national health advocacy groups about potentially suing Gov. Scott Walker (R) and the Trump administration should Wisconsin’s waiver be approved.
“We’ve identified areas that potentially could be legally challenged,” he said.