Moreover,  many of the persons who will be pushed off BadgerCare are seeking SSDI or SSI – a process that can take years – and without the health care coverage BadgerCare provides will be less likely to have a treating physician and thus less likely to be able to establish eligibility for disability benefits. Other persons with disabilities are not necessarily “unable to work” - even if they work for fewer than 80 hours per month - and the loss of access to health care will inevitably cause the deterioration of physical or mental health for many of them and potentially result in a loss of even that limited ability to work. We note that the cost of health care has, in the past, precluded nearly one-quarter of Wisconsin adults with disabilities from obtaining medical care.[1]

In addition, reducing BadgerCare access will likely exacerbate the disparate health conditions and disparate health outcomes for communities of color in Wisconsin. Recent American Community Survey Data shows that Blacks, Latinos and Native Americans in Wisconsin are already far more likely than white non-Hispanic persons to be uninsured.[2] Persons of color who are insured in Wisconsin have, historically, been disproportionately reliant on Medicaid, as the state’s data show.[3] 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.

We also object to the proposal to impose substance abuse screening and drug testing on BadgerCare applicants and recipients as a condition of eligibility. If the screening purports to identify a substance abuse disorder, the individual must submit to a drug test or be denied health care coverage, and enter into treatment if it is available. Drug testing of public benefit applicants and recipients is based on the false and insidious premise that impoverished individuals are more prone to drug use than the general population. However, there is no reliable evidence to support that claim. And the SASSI Institute, which developed a tool that some states use for public assistance drug screening, has stated that “when public assistance is made contingent on participation in the [substance abuse] assessment and treatment process, it increases the risk for violations of ethical principles and applicants’ rights.”[4]

Further, suspicionless drug testing raises constitutional concerns.  The government should not be forcing thousands of innocent and law-abiding  BadgerCare applicants to submit to a drug test absent probable cause. That unreasonable invasion of privacy also comes at a high cost to the state, with few benefits to anyone, as public assistance drug testing routinely identifies only a tiny percentage of substance abusers. 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.[5]

Nor does screening eliminate these concerns. Many test instruments simply do not provide probable cause for drug testing, especially if they are administered outside the healthcare setting.  Such tools are typically designed to give clinicians, in a treatment setting, information that can lead to further questions that could guide advice and treatment decisions in a therapeutic setting, not to allow bureaucrats to deny eligibility for public benefits or establish legally sufficient suspicion for a search. Many do not differentiate among alcohol use (which is legal), prescription drug use (which is also legal under most circumstances), and illegal drug use. As the SASSI Institute makes clear,  “[t]he purpose of the SASSI is to help people who have substance use disorders. To use the SASSI to discriminate against individuals, such as disqualifying job applicants or to deny public assistance, violates the purpose of the SASSI and is a violation of the Americans with Disabilities Act.”[6] (emphasis in original).  See also, e.g., Substance Abuse and Mental Health Services Administration & U.S. Dept. of HHS, Health Services and Resources Administration, “Screening Tools” (discussing benefits of “screenings in primary care and other healthcare settings” to facilitate diagnosis and treatment)(emphasis added).[7]

The drug screening and testing process also unreasonably intrudes on personal privacy by forcing individuals to disclose private health and medical issues to government bureaucrats. This is simply an unwarranted invasion of privacy that will do nothing to improve health outcomes.  Drug screening and testing, for example, require applicants to share private and personal health conditions – such as mental health or other sensitive health problems – with agency workers rather than with health care professionals, to explain the presence of lawful prescription medication. In addition, drug testing may reveal private medical conditions, such as pregnancy status and genetic predispositions to certain diseases or conditions.       

The “healthy behaviors” disclosure requirements are similarly intrusive.  For example, having to discuss one’s weight or eating habits with a bureaucrat in order to explain obesity will force many people to disclose underlying physical or mental health conditions in which their condition is rooted.  Moreover, a bureaucratic determination of which behaviors may or may not be healthy will, as others have noted, inevitably fail to account for differing cultural norms and differing situations (e.g., living in a “food desert”), and may therefore also have disparate racial effects.

Finally, we note that the waiver proposals have nothing to do with the issues and priorities the state itself identified. As the Wisconsin Department of Health Services made clear in 2014:

Social determinants of health drive at least 50% of morbidity and mortality rates. Social determinants of health include socioeconomic status (SES), usually measured by income, employment, education, or housing. Groups with lower SES typically have significantly shorter life expectancy, higher rates of infant mortality, higher rates of chronic disease, and significantly lower self-rated health status.

Health inequities are costly. The Joint Center for Political and Economic Studies estimates that the combined costs of health inequalities and premature death in the United States during 2003-2006 were $1.24 trillion. Further, addressing social determinants of health is an essential component of several key principles of the Public Health Code of Ethics which frame the ethical practice of public health.

Healthiest Wisconsin 2020, the State Health Plan, lists two crosscutting focus areas: 1) Health Disparities, and 2) Social, Economic and Educational Factors that Influence Health.  These broad focus areas have the potential to affect both the health focus area and public health infrastructure components of the plan and help set priorities in order to achieve large, equitable changes in health outcomes while saving health care dollars in Wisconsin.[8]

For these reasons, and the reasons set forth by many others, we urge the state to use its resources to provide more and better health care coverage to Wisconsin residents, rather than embarking on this unnecessary, costly and bureaucratic waiver process.

Sincerely,

Karyn L. Rotker
Senior Staff Attorney