Monday, April 11, 2016

If the aginners want to end the private option, they should win a majority in the legislature

Posted By on Mon, Apr 11, 2016 at 9:12 AM

click to enlarge HARD CHICKEN: Sen. Bart Hester and Rep. Bob Ballinger don't have the votes, but they're threatening to shut down the government to get their way. - BRIAN CHILSON
  • Brian Chilson
  • HARD CHICKEN: Sen. Bart Hester and Rep. Bob Ballinger don't have the votes, but they're threatening to shut down the government to get their way.

25-10 and 70-30.

These are massive bipartisan majorities of the sort you don't see all too often. Those majorities include every single Democrat and a majority of Republicans, in both chambers. There is an overwhelming consensus in the Arkansas General Assembly to re-authorize the private option, the state's unique version of Medicaid expansion (now re-named "Arkansas Works" by the governor). 

However, a rump group of Republican lawmakers who are deeply committed to eliminating health coverage for more than a quarter million low-income Arkansans are pledging to stop the Medicaid expansion from continuing. They are using an unusual tool. Under current interpretation of the state constitution, certain appropriations can only go forward with 75 percent approval from both houses of the legislature (a quirk unique in the nation to Arkansas). The aginners say that they will not allow the Medical Services appropriation — which includes the private option but also all Medicaid funding — to move forward unless they get their way. They are threatening to shut down the entire Medicaid program unless the private option ends.

If they actually followed through on that threat, that would mean all funding would immediately end on July 1 for medical care for the aged, disabled, and the blind, covering 142,077 people; ARKids coverage for more than 400,000 low-income kids; home and community-based services for 11,000 elderly people and people with severe physical disabilities; medical services for nearly 5,000 foster children; coverage for more than 10,000 low-income pregnant women who are not otherwise covered by the private option; and coverage for more than 10,000 extremely poor parents of dependent children. All funding would also immediately end for the Qualified Medicare Beneficiary program, which helps more than 60,000 elderly Medicare beneficiaries with care and costs not covered by Medicare and TEFRA, a Medicaid program that provides funds for home care for severely disabled children in their homes. The 250-bed Arkansans Health Center, a public nursing home that takes patients that few or no other nursing homes will take, such as patients on a ventilator and patients with severe cognitive dysfunction, would be forced to close. State hospitals that provide care for civilly committed patients having acute and severe behavioral health crises would lose 30 beds. Read more on this nightmare scenario here

This is an outcome that no one wants. But the tiny minority of aginners believe that they can extract demands from the overwhelming majority of the legislature if they can make a credible threat that they are willing to let the state of Arkansas go off the cliff come July 1, unleashing unimaginable suffering on the state's most vulnerable citizens.

The aginners say that they would happily approve the Medical Services appropriation and fund the traditional Medicaid program, but only if the private option was taken out. And there is nothing stopping them from trying to pass such an appropriation. But they will fail, because they are in a tiny minority. They have a clear procedural avenue to amend the Medical Services appropriation and strip out the private option via Special Language, but they will fail, because they are in a tiny minority. This isn't complicated. If the Democrats had wanted to stop Voter ID in 2013, for example, they could have refused to approve the Secretary of State appropriation unless Voter ID was stripped out. But a Secretary of State appropriation without Voter ID in 2013 would have failed because the majority of the legislature had approved the measure. This is the nature of democracy. The minority doesn't always get their way on policy. 

Under the circumstances, you might think that the aginners (who don't lack for big-money backing) would try to win elections and turn their minority into a majority. This is how other states have blocked Medicaid expansion: the majority opposed the policy. If the majority of the legislature opposed the PO here, the policy would end. But for all of the drama, that has simply never been true in Arkansas, where opposition has never been more than around a quarter of the legislature. 

The aginners, in short, don't have anywhere close to the votes they would need to pass their own Medical Services appropriation — certainly not a supermajority, nowhere close to a simple majority, not even close to getting it out of committee. They only have one tool: the threat to shut down the government unless the overwhelming majority caves and they get their way. And they only have leverage to the extent that they are committed to actually following through on this terrifying threat. 

They sincerely believe — or at least this is what they are claiming — that ending health insurance for the quarter million low-income Arkansans covered by the private option is so important that they are willing to plunge the state into a humanitarian nightmare to make it so. That's not to say that they want to do so; their preference is that the overwhelming majority simply surrender to their demands. But they are plunging ahead promising that they are willing to unleash this nightmare. This is not an exaggeration; I asked Sen. Bart Hester, the leader of ten senators making this threat, explicitly whether he would be willing to let all Medicaid funding end in order to stop the PO. "I would," he said. Other aginners have made the same commitment. This is the same game of chicken (or "hard chicken" as Hester now calls it) that they played at the last fiscal session in 2014, when opponents like Rep. Bruce Cozart said that they were willing to "kill the budget" to stop the PO.  

Under the current prevailing interpretation of the law, this is their constitutional prerogative. They can choose to use that tool. But let's be clear about what's going on here: precisely because they have nowhere near the votes to actually pass anything, they are using the only chip they have — threatening a government shutdown. Unfortunately, Hester's game of "hard chicken," and his contention that "the only thing that's going to bring resolution to this is a crash," comes with potentially horrific consequences. Hester firmly says he's willing to let those consequences happen, which is chilling. Eventually, a game of chicken will end badly. Wholly aside from the question of Medicaid expansion itself, the state's recent pattern of shutdown drama during fiscal sessions is a disaster waiting to happen. 

Conduit for Action, the murky umbrella group of PACs and other entities that is a key funder of the aginners' campaigns, has made the rather incredible argument that it's really Gov. Asa Hutchinson and the 70+ percent in the legislature who are holding the Medicaid program hostage and threatening a shutdown. All Hutchinson and the majority have to do, Conduit argues, is cave to all of the demands of the tiny minority of aginners — then the aginners will be happy to fund the traditional Medicaid program, avoiding catastrophe. By this logic, 26 percent of either chamber of the legislature can demand anything under threat of shutdown and it's the governor and majority's fault if they don't give in to the threat. 

Creative spin aside, most people's intuitive sense of fairness in a democracy is that 26 percent of the legislature shouldn't be able to make demands on 74 percent of the legislature. The "Arkansas Works" law was duly passed and it's on the books. The losers of that policy vote are trying to extort a win via the budget process, playing "hard chicken" with the state's most vulnerable citizens. It's an ugly business. If the aginners want to overturn the private option, they should instead work to build a majority in the legislature. 

Support for special health care reporting made possible by the Arkansas Public Policy Panel. 

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