The Trump Administration is expanding its attacks on Medicaid – and, by extension, the Affordable Care Act – even as courts consider whether the moves constitute executive branch overreach.

Last week, The Hill reported that the Administration is pushing ahead and granting approval to states seeking to impose work requirements on Medicaid recipients, despite ongoing legal challenges and large-scale losses in the number of people covered. The Administration also is (“quietly,” according to The Hill) trying to sell states on the merits of imposing block grants, or a per-person spending cap, without congressional approval.

Earlier this month, the Centers for Medicare and Medicaid Services (CMS) granted Ohio’s request for work requirements, the ninth such approval since President Trump took office, according to The Hill. The approval was announced just one day after administration lawyers were back in federal court, this time defending the work requirements for two other states, Arkansas and Kentucky.

“To approve it the day after the court hearing was pretty in-your-face,” Joan Alker, Executive Director of the Georgetown University Center for Children and Families, told The Hill. “It’s a statement of ‘we’re going to push forward with our policy regardless of what a judge thinks.’”

A D.C.-based U.S. District Court already ruled once against Kentucky’s work requirements; afterwards, the state made very modest changes to its plan, and the CMS gave the state permission to move forward. Opponents sued again, and now the state and the Administration are back in court.

But the threats to Medicaid (and Medicaid expansion, and the ACA) don’t stop there.

According to The Hill, last week, for the first time, Secretary for Health and Human Services Alex Azar told a Senate panel that the Administration is in discussions with states about block grants and other end-arounds.

“We have discussions with states where they will come in and suggest ideas,” Azar told the Senate Finance Committee. “There may be states that have asked about block granting, per capita, restructurings around especially expansion populations….It’s at their instigation.”

The issue of block grants has long been controversial. Some Republicans favor the policy because, they claim, block grants give states more flexibility and make programs more affordable. Democrats counter that when programs are block-granted, cuts invariably follow.

Sen. Bob Casey Jr. (D-PA), who asked Azar about his meetings with states, said the public needs to know more about those conversations. He pledged to fight cuts to Medicaid. “To say that I and many others will fight these cuts with an unyielding passion is an understatement,” he said during the Senate Finance Committee hearing.

Meanwhile, even as the Trump Administration claims that Arkansas’ new Medicaid work requirements are encouraging people to find jobs, the Center on Budget and Policy Priorities is pushing back on those claims.

Arkansas became the first state to implement work requirements after gaining approval from the Trump Administration last year. Under the policy, recipients must work, go to school, volunteer or search for jobs for at least 80 hours per month. If beneficiaries don’t meet the requirements for three months in a calendar year, they are cut off from Medicaid for the rest of the year, but are eligible to re-enroll the following year.

Last week, CBPP reports, Azar was asked at a House hearing what happened to the 18,000 Arkansans who have lost coverage due to the new requirements. He said, “We do not have data as to why they fell off the program.”

Two days later, testifying before the Senate Finance Committee, he pointed to the low share of people who lost Medicaid coverage last year and then re-enrolled in the program in January and said, “That seems a fairly strong indication that the individuals who left the program were doing so because they got a job.”

Not so fast, says CBPP.

In a blog post published on Tuesday of this week, CBPP Senior Policy Analyst Jennifer Wagner pushes back:

“But state data released on Friday show that very few beneficiaries who lost coverage found jobs. Of the 18,164 beneficiaries who lost coverage in 2018 for not complying with the work requirement, 1,981 had matches in the state’s New Hire Database, indicating they found new work. That means for the more than 16,000 others who lost coverage, there is no evidence that they found new work.”

Wagner adds that the data almost certainly overstate the number of people losing Medicaid coverage who found steady employment. She cites three reasons:

“The New Hire Database includes individuals who were employed only for hours or days.

“The Database doesn’t capture wage or hour information, so it doesn’t show if the new jobs are full or part time or if they’re seasonal or permanent.

“The Database doesn’t show if the new employee was previously unemployed or just changed jobs.”

She concludes: “As HHS admits, we don’t have sufficient data on what happened to the individuals who lost coverage. But the data that the state has released so far are consistent with our conclusion, based on other evidence, that the overwhelming majority of those losing coverage will become uninsured.”

The federal district court that ruled against the Kentucky work reporting plan saw it as an abuse of Medicaid waiver authority. The federal government is only supposed to waive Medicaid law if the proposed change is an experiment expected to improve access to coverage. The judge in the Kentucky case did not think work reporting rules would improve coverage, and the experience in Arkansas certainly confirms his judgment. Ultimately, the question of whether states impose Medicaid work requirements might not fall solely on the merits (or lack thereof) of such policy, but rather on legal arguments over separation of powers. Says Georgetown’s Joan Alker:

“This is a separation of powers issue. Congress retains the authority to change Medicaid. The waiver was not intended to allow the executive branch to rewrite the Medicaid statute.”