To  GOP Legislators

Medicaid Information Some Legislators Walked Out On

Why Conditions in Medicaid Expansion Bill Won't Work


Please give us back home five minutes of your time and read - I spent more than two hours transcribing.


Summary:  The Federal Medicaid law trumps the AR Waiver for the private option Medicaid bill moving through the AR legislature at this time, and the Waiver is discretionary; Sebelius has authority to change it at any time.


As background for the importance of this, our Arkansas GOP leaders who are pushing for the Private Option Medicaid Expansion (disguised Obamacare) are saying they have written the law (SB1020 and HB1143) so that if the Federal Government does not live up to its promises, their plan will be null and void. Haislmaier with Heritage shows why those conditions in the law won't stand up, and we will be stuck with the plan whether the federal government keeps its promises or not. 


Transcript of a portion of the presentation by Ed Haislmaier from the Heritage Foundation (CATO Foundation & other conservative orgs. agree.)


Finally there is a fundamental legal question.  We got into a little bit of this morning because some of them said I had not read the bill.  I didn't need to read the bill because I am not here to testify about the bill. I am here to talk about what the options are and what the data say and it is up to Arkansas to decide what to do. Here is why it is irrelevant.  This is how Medicaid works. Medicaid is a contract between the state and the federal government. The federal government says we will give you this money if you do, and there is a whole list of things, summed up in something called a State Plan.  You in the state have to give us a plan on how you are going to spend the money, and it has to fit within these federal rules.  Okay.


Now, that is very important because you hear about Waivers.  That is not the same thingA State plan or a State Plan Amendment is a different animal than a Waiver. A State Plan or a State Plan Amendment is part of the basic contract so if a state (and all the states now have them, Arizona was the last one agreeing to Medicaid) so the state is amending its state plan. That is why we always tell state lawmakers to focus your reforms on things you can do to the State Plan. What you are saying is we read the federal law such that what we propose to do can be done within the federal law. If HHS doesn't agree with you, there is a clock they have to get back to you and if they disagree, you can go as a state to federal court and say wait a minute your Honor we have a dispute with HHS.  Federal law says this; we think what we are proposing fits within it; they think it doesn't; who is right?


A Waiver is a totally different animal; a waiver is well we know that what we want to do doesn't fit under federal law; we already know that, but we are asking you for permission to let us do it anyway; and Congress gave the Secretary authority to do that,  for a demonstration to try something out to see how it works.  But a Waiver is highly discretionary; the Secretary can drive that process on forever; it can say yes, or it can say No, and you have no recourse. So the bottom line in all of this in this state,  and anywhere else, is what matters here is the state agreeing to a state plan amendment to expand coverage to this population or not. Anything else in the bill is just whatever. 


Now when this draft, who knows whether it will change, it says the legislature is giving authority to the Arkansas Executive branch to do that.  Well that is the operative language and anything in there about well it has to be conditioned on this or conditioned on that - No, No, No. (gave examples of movies where they hold hostages that I could no understand all the words) HHS's position that they made clear on Friday is put the gun down and we can talk. That is their position because if you read what they said, they said this is our special deal - you don' get to do a partial expansion,  and anybody you cover has to meet Medicaid standards; if you are going to give them private coverage, if it has less than Medicaid you have got to give the extra wrap arounds; if it has more cost sharing than Medicaid you have to cover the extra cost sharing. This is Medicaid. I don't care how you want to dress it up, it is Medicaid.


And once you sign a state plan amendment saying you are going to do it, it is entirely at their discretion. But you promised me we could do it. That's all discretionary, the Waivers.   This isn't just Arkansas. I was in Columbus, Ohio so they are having this discussion all over the place.  What matters is not the bill in Arkansas or the bill in Ohio or anywhere else. What matters is the federal law; that is what really matters. 


One last point with respect to the federal law - going back to the Supreme Court case.  What did the Supreme Court sayThe Supreme Court essentially said that constitutionally Congress was exceeding its authority when they tried to ram what is a whole new program through Medicaid, through this existing charter.  It is like you and I had a contract and it is ten pages long and you say I am going to add two more pages in the middle here.  NO, No, No that has to get my approval too.  I am not being bound by the two extra pages you stuck in the middle of the  contract.


 hat is what the Court said.  So the Court said the federal government could not condition continuing for the state to get the first dollar of coverage of federal money on existing Medicaid on the state agreeing to the new program.  The state has to be given the choice. So now the state has that option. 


Here is what the Court didn't say.  The Court didn't say anything about what happens if the state then voluntarily chooses to accept that. Can the state down the road change its mind. The Court didn't say anything on that.   So when the court didn't say anything, you go back to the statute. What did Congress do?  It made the expansion part of the mandatory population so for a state that accepts the expansion it is part of your mandatory requirements for your state plan.  That means that down the road if you try to get out, you may not be able to without getting out of your entire Medicaid program.  So there is a very real possibility that this becomes a Hotel California kind of situation.  You can check out anytime you like; you just never leave.  That's what you have to be worried about.  Furthermore anything HHS promises about Oh yeah you can get out; they said that.  They have no authority to make that promise.  The court is not going to look at that; they are going to look at what the statute says. Until Congress rewrites that part of Obamacare to say," Oh, yeah it is optional, a state can go in or a state can go out," you cannot presume that you can exit once you go in. (blanks mean I could not understand the audio.  (End of this portion of the transcript.)


Much more to come when I edit my transcription of it.  You can hear this full presentation at this link, starting a little over one hour into the program on Paul Harrel radio program  at this link: Pick the top one as of now. Was on April 9, 2013. Will still stay on the web for some time. 


Debbie Pelley Posted April 10, 2013