Earlier this year, the Trump administration granted Kentucky, Indiana and Arkansas waivers to allow them to impose work requirements on many program enrollees, a policy over which Kentucky was immediately sued, with legal and public health scholars agreeing that the policy does not meet the statutory requirements of the program.
Now the administration is mulling another waiver that will inevitably end up in the courts. Wisconsin expects the administration to decide on its waiver request to drug test certain Medicaid enrollees in the coming weeks. The waiver request submitted at the end of last year would force childless adults on BadgerCare, the state's Medicaid program, to mandatory drug screening. They would have to complete a drug screening form, or be kicked out of the program. It they admit to drug use on the form, they'll have to take a drug tests or lose benefits. If they test positive and refuse treatment, they'll lose benefits.
Involuntary drug testing wouldn't just stretch the Medicaid statute beyond its limits, it has constitutional implications.
"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.
Kicking people out of the program—particularly people of color—isn't going to cause any qualms for Gov. Scott Walker or for Trump. The treat of lawsuits isn't likely to either, since they've already gone there on work requirements and on tribal Medicaid rules. Taking health care away from people of color is the end game here.