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Wednesday, February 19, 2014

Capitol scuttlebutt: the legislature takes up the private option for Medicaid expansion

Posted By on Wed, Feb 19, 2014 at 10:27 AM

click to enlarge BALLINGER: offers "compromise" proposal on private option which...ends the private option
  • BALLINGER: offers "compromise" proposal on private option which...ends the private option

I'll be updating this post with the latest developments and gossip today on the private option, the state's plan to use Medicaid funds available via the federal Affordable Care Act to purchase private health insurance plans for low-income Arkansans. Currently, both the House and the Senate plan to take up the appropriation that includes the private option this afternoon.

The House voted yesterday and came up five votes short of the needed 75 percent supermajority. Refresh this post and see below for updates...

AFTERNOON UPDATES: 

*The extortion precedent: I may do a full post on this later but lots of lawmakers on both sides have expressed concern about the precedent around using the supermajority requirement on appropriations to block policy. Folks are concerned about minorities on either political extreme trying to hold appropriations hostage to get their way, but there's also the simpler concern that such a difficult-to-attain threshold gives so much power to the twenty-sixth vote in the House or the ninth vote in the Senate. That leads inevitably to the sort of thing we saw from English: getting a policy concession wholly unrelated to the policy at hand. And now Thompson is pushing back, presumably wanting his own. Each member must be wondering just how much they can get, given the supremajority threshold, given the stakes. English's project is probably a good idea on the merits, but how long until bad actors start using the process to get their way? 

(The above probably helps explain Carter's "the negotiations are over" stance.)

*AFP and the Bell tactic: After AFP-Arkansas contacted legislators earlier in the week to tell them the conservative advocacy group will not "score" this vote on the private option, the group has been talking to lawmakers this week and explaining what they see as the lay of the land. I've been told that AFP has concluded that Bell's approach makes the most tactical sense and that pursuing a defund strategy with a minority of legislators during this fiscal session would hurt Republicans. That could impact races across the state in 2014 — the Senate race, the governor's race and the House statewide. The group also believes that if private-option opponents overplay their hand in an unwinnable fight this year, it will weaken their position in future battles. AFP opposed the shutdown strategy to try to defund Obamacare in D.C., to use the obvious parallel, and argues that that fight ended up hurting conservatives. 

Meanwhile, the Bell amendment itself likely appeals to AFP, which has aggressively fought outreach for both the private option and the Affordable Care Act generally for months.

That's one thing to keep in mind about the Bell amendment: not only did it win over Bell, it sounds like it won over AFP — a group which spends big during Arkansas elections and carries a fair amount of weight in the Republican party.

*Beebe and Carter confident:The governor talked to reporters after the vote today: 

I’ve always been fairly confident [that the appropriation will pass during the fiscal session] because the alternative is catastrophic. Even an opponent of the bill, Nate Bell, illustrated pretty succinctly and rationally what the alternative would be and it’s catastrophic. You end up with Washington-style deadlock stalemate. People of Arkansas do not like Washington and that’s part of the reason. You shouldn’t want them feeling that way about our legislature. And I don’t feel that way about our legislature. The overwhelming majority of the legislature is trying to solve problems. It’s just a quirk in our Constitution that requires 75 percent that’s created a higher bar. It’s tough to get 75 percent. One or two makes a difference.

Of the Bell amendment, Beebe said, “it helped with Bell. If it takes 75 votes it’s worth if he’s the seventy-fifth vote.”

For his part, the Speaker repeated what he said yesterday: “We’re voting every day until it passes. …This bill will pass. We’re not going to allow the minority of the membership to pass substantive legislation through the budget process. That’s not how it works, so it’s not going to happen.” Carter expressed concern about a precedent that groups might use to block other appropriations: “That’s the risk you run when you start trying to do the things that the minority of members are trying to do now. Unless you have 51 votes in this place, you can’t do a whole lot. That’s the slippery slope with members that don’t like other substantive policy things trying to vote down appropriations.”

Like Beebe, Carter said that he’d been led to believe that a few votes in the House might change to Aye if the Senate approves, though he said he did not understand why this was the case. 

*Counting votes, contd. If Thompson comes back around, they hold everyone else, and they can pick up three of Rice's allies (see theory below — the notion is that Rice is facing off in a primary against Sen. Bruce Holland and plans to campaign against him on the private option, so he wants to ensure that the Senate votes first and Holland takes the tough vote), they might have it on the nose in the House. That's a lot of ifs, we shall see...

*Why Thompson flipped: According to multiple sources, Rep. Tommy Thompson, a Democrat, did not vote for the private option today because he is upset about the impact on 2-year college funding of the workforce training deal struck with Jane English yesterday to secure her vote in the Senate. Worth noting that this issue has absolutely nothing to do with the private option. It's thought that Thompson's support can be secured in the end. 

*Poison pill: Beebe said that the Ballinger proposal was “not an amendment.” I asked whether it was a good faith effort at compromise. Beebe: “To end [the private option]? No. …The whole reason for doing this doesn’t end Dec. 31 or any other time.” Carter said that if there was a vote on the floor to end the private option, as Ballinger's bill amendment would do, "it would fail miserably. So you can't achieve that result by holding the budget process hostage." 

Those backing the Ballinger amendment (which cuts off enrollment July 1 and ends the private option altogether on March 1*) will try to argue that it makes the private option "like Obamacare" by creating an enrollment deadline. (I overheard one Senate backer of the amendment say "that's good, I like that" when someone floated this line to him in the hallway.) This betrays a misunderstanding of the purpose of the open enrollment period for Marketplace plans, but whatever. Again, they're just looking for cover and hoping that by some miracle this picks off a vote in the House. At least we get to enjoy the theater of lawmakers on record as vehemently wanting to end the private option try to maintain their amendment ending the private option is a private option compromise. Fun! 

*since it requires federal approval for something they have no chance to get, it would actually completely end the private option on July 1 in practice

*What's the count? Gov. Mike Beebe
said he has been told that Bragg and Altes are still in the Aye column but simply weren't in the room. What about Thompson? “Rep. Thompson didn’t vote and you’ll just have to ask him, I think he’s mad,” Beebe said. 

If Beebe is correct, that puts them at 71 after picking up Smith. Everyone seems to think that there are at least a few votes to be picked up only after Senate passage, which would put them very close. "There are several House members waiting on the Senate," Beebe said. "The Senate is voting tomorrow morning, hopefully that will clear things up." If the Rice-Holland theory below holds any water (who knows), that would be three pickups, leaving them one vote away. 

*On and on... The private option appropriation gets 68 votes on the second try. Still short of a supermajority. The House will vote again tomorrow. The Senate will too, and it's thought that a handful of votes in the House may flip if the Senate approves. Ballinger today urged the House to wait and consider his amendment, saying he hoped it would "bring some consensus." That's unlikely since it would actually end the private option.  The vote went from 70 to 68 because they picked up Smith but lost three: Reps. Altes, Bragg and Thompson voted Aye yesterday but did not vote today. 

*Primaries: Rep. Ann Clemmer, one of the Aye votes who flipped to No yesterday, faces a tough Republican primary in her race for Congress against French Hill. Hill is is a Chamber-approved establishment Republican type but says he opposes the private option, and clearly plans to hammer Clemmer on her vote last year. Clemmer was frank with me last month that she was torn about the private option, but "the politics push." Still, I have a feeling that Clemmer voting no now won't stop Hill from attacking her on her vote last year. Hill clearly seems to be hoping he can have his Tea Party and eat establishment cake too. 

Sen. Bill Sample picked up a primary opponent last night who will likely make Sample's vote for the private option an issue. If opponents wanted to turn someone, perhaps they'll give him a try. Hard to believe Sample would flip this late in the game. There's no political upside; the Tea Party will be mad either way. According to Senate leadership, they still have a solid 27 votes on the Senate side. The Ballinger amendment hasn't changed anything in the Senate, at least so far. 

*Not easy being green: Rep. Fred Smith is the legislature's sole member of the Green Party. Smith votes with the Dems and is likely to run as a Democrat in 2014. He voted for the private option last year but did not vote yesterday (he was here but out of the room). Tempting to start a rumor that the Greens are holding out for the public option. Everyone assumes that he'll vote for it in the end. I just ran in to him and he told me he was "still undecided." Knowing Smith, he may be angling for some kind of side deal like Sen. Jane English got yesterday. Or a better theory may be that he simply likes seeing his name in the paper. Smith, a former Harlem Globetrotter, dominated last night's House-Senate basketball game. 

*Dead enders: The rump contingent of private option opponents had a press conference just now to announce their "alternative." It would end funding for the private option and kick 100,000+ Arkansans off of coverage in March instead of in July (or in December, as in Sen. Jim Hendren's previous failed amendment). They argued that the legislature would be in session at that point and could step in to save the private option or come up with some awesome brand new plan (you'll be shocked to learn that they did not explain what this would be). Since the folks presenting this "alternative" all voted against the private option to begin with and support defunding it now, proponents will be forgiven for assuming that this amendment is designed to do what it looks like: kill the private option. 

The amendment would also cap enrollment by not allowing anyone to enroll in the private option after July 1. This would require a waiver of Medicaid rules from the feds. There is a near-zero chance that the feds would okay this. And if the feds said no, under this amendment, the private option would end completely and kick the 100,000+ existing beneficiaries off of coverage after July 1. So in practice, this would actually likely kill the private option even sooner. 

There is maybe a little bit of a Hail Mary element here. Hendren and Rep. Bob Ballinger, who is sponsoring the amendment, claimed that Senate leadership was taking it seriously. But the tell here is the repeated insistence during the presser that this amendment showed that they had a plan of their own, that they were trying to negotiating. This is cover, pure and simple: cover to respond to allegations that all they do is say NO with no plan of their own and cover to the political heat they'll take for their planned vote to kick 100,000+ Arkansans off of their health coverage. 

I spoke with a few Democrats and Republicans who support the private option and all agreed this amendment was dead in the water. It has zero chance of garnering support among proponents. Could it pick off a single senator currently counted in the "Aye" column, and set up a brand new impasse? Doubtful, but you never know, we'll see.... Maybe it was aimed at the House where the few votes to put it over the top are more in flux. 

MORNING UPDATES:

*Who votes first? Multiple lawmakers say that there is a significant group of representatives in the House, perhaps enough to put the supermajority over the top, who are only willing to approve the private option if the Senate does so first. But why? Just weird Senate-House drama? Here's an idea from one lawmaker, and it's just a guess: Rep. Terry Rice is challenging Sen. Bruce Holland in a Republican primary. Holland is a yes, Rice is a no. But Rice's allies may want to make absolutely sure that Holland votes no, and doesn't come in with a last-minute face-saving amendment, etc. Carnine, Slinkard and Eubanks are close to Rice and voted for the appropriation last time, only to vote against it yesterday. Last year, it was rumored that allegiance to Rice was a factor for some pro-business Republicans otherwise predisposed to support the private option (bitter feelings remain over the race for Speaker of the House — Rice was in line to be speaker, only to be successfully challenged by Davy Carter, who won with support from Democrats and a few Republicans...Republicans who ended up being prominent supporters of the private option). Is Team Rice ensuring that Holland takes the heat?

This theory strikes me as only semi-plausible, but...what is a plausible theory for the weird obsession among some House members about who goes first? Carnine, Slinkard and Eubanks voted against the private option on the penultimate vote only to support it on the final vote. Could that happen again? 

One more theory: I also heard that a few reps promised the private-option opponents that they would vote against the appropriation on the first vote. Perhaps the hope is that today's announcement of an "alternative plan" by the 8 Senate Nos will actually change the political ground. Perhaps opponents were just buying a little more time.  

*Senate will not take up the private option today. The House will try again. Interesting development since supposedly some House members are willing to vote for the private option only after the Senate approves it.

"We're just going to wait on the House," Senate President Pro Tem Michael Lamoureux said. "Just one more day. We’re not in any particular hurry." Lamoureux said there were "a lot of different dynamics and there's no urgency to do it today." Sounds like he also wants to give a chance for senators to digest the "alternative" that will be proposed by the 8 Senate no votes today at noon (though the Senate by all accounts already has the votes for the supermajority after Sen. Jane English flipped to a yes yesterday). Lamoureux said that the Senate would definitely take up the appropriation if it passes the House today and would likely go ahead and take it up if it fails a second time in the House today. 

*Counting Votes: One legislator in the House who voted against the appropriation last time, Rep. Nate Bell, voted for it yesterday (Bell opposes the private option, but got an amendment to weaken the policy added and believes that a defund strategy does not make tactical political sense during this year's fiscal session.) Meanwhile, 8 legislators who votes for it last year voted did not yesterday. Voting No: Rep. Les CarnineRep. John HutchisonRep. Allen KerrRep. Mary Lou Slinkard and Rep. Ann Clemmer. Not voting: Rep. Jon Eubanks and Rep. Fred Smith. Voting present: Rep. Mark Lowery. We took a look at some of the swing votes last month. 

*Doc Fix: 
A key development from yesterday: a deal with Blue Cross Blue Shield regarding their reimbursement rates to specialists for patients on the Health Insurance Marketplace, including the private option. Around eight Democrats planned to vote present (equivalent to a no) on the private option appropriation until a resolution was found on the issue. BCBS agreed to a deal that will create parity on procedure codes starting in July — in practice, however, this likely means a bump up from the current 2014 reimbursements for specialists and a bump down for family practice docs. The Democrats involved say the deal is more fair because it will mean the same reimbursements for the same procedures — but given that specialists are compensated about twice as much overall, I wonder whether we'll hear some grumbling...

*Aginners: As Max noted this morning, the rump Tea Party group opposing the private option will do a press conference at noon to offer an alternative plan. I'm going to go out on a limb and guess that it's either a poison pill bill or something akin to Sen. Jim Hendren's recent failed amendment, which would have offered the "compromise" of ending the private option and kicking 100,000+ people off of their coverage in December, instead of July. Rep. Bruce Westerman is fond of stunts and has used the debate both this year and last year as forums for campaign speeches for his Congressional race. Will this presser be yet another? CORRECTION: The announcement will actually by made by the 8 NO votes in the Senate, so it doesn't involve Westerman or House members directly.

*Special Language: In a Special Language subcommittee this morning, Rep. Deborah Ferguson got a patch for breast-cancer Medicaid coverage included in the DHS appropriation (this doesn't directly impact the private option, but these changes to the DHS budget — which includes the PO — will have to be approved in Joint Budget and the House Floor). The state ended its Medicaid breast-cancer program, which covered treatment for people below 200 percent of the federal poverty level, because those people would have access to full health coverage via the Affordable Care Act (through the private option for folks below 138 percent of FPL, or through subsidized coverage purchased on the newly created Arkansas Health Insurance Marketplace for people between 138-200 FPL). Ferguson's concern, particularly given the rocky healthcare.gov enrollment process, is about the folks between 138-200 FPL who don't sign up for insurance by the open-enrollment deadline on March 31 (there is no enrollment deadline for folks below 138 FPL, so someone eligible for the private option who is diagnosed with breast cancer can simply sign up for PO coverage if they haven't already). The patch is a one-time state expenditure of $2 million to offer Medicaid breast-cancer coverage to anyone in the 138-200 group who doesn't sign up on the Marketplace by the deadline but is diagnosed with breast cancer in 2014. Presumably in future years, if this patch is continued, the state will seek a federal match (70 percent paid for by the feds) but this year it will be all state funds. 

Another issue lingering in Special Language, likely to be taken up this afternoon: mental-health providers are pushing back against Medicaid incentives, evaluations and cost containment, including in the Payment Improvement Initiative. This could be a bit of a fight. Nothing to do with the private option, but anything involving the DHS budget could complicate things. 

HOW WE GOT HERE:
One year ago, Medicaid expansion appeared to be in grave danger in Arkansas. The newly ascendant Republican majority in the legislature had campaigned on an anti-Obamacare platform and their Majority Leader Bruce Westerman declared that "our view is that supporting Medicaid expansion is really embracing President Obama’s law."

In late February, the debate was turned upside down when the feds gave Arkansas permission to pursue the plan that became known as the "private option": the state would use federally funded Medicaid dollars to purchase private health insurance plans for low-income Arkansans on the newly created Arkansas Health Insurance Marketplace. The private option flipped the script, with many Republicans taking ownership of the plan. After weeks of protracted legislative drama, the private option secured a 75 percent supermajority in both the Senate and the House and was signed into law by Gov. Mike Beebe in April. 

Because of a quirk in the Arkansas constitution (which some believe is ripe for a challenge) requiring a supermajority on certain appropriations, the policy needs 75 percent to okay it on an annual basis, which means the legislature is fighting the same battle all over again. With a few votes flipping, continuation of the policy has been perceived to be in jeopardy in recent weeks (read all about it in our recent cover story previewing the private option fight in this fiscal session), though most now believe the policy will survive. 





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