Minority Leader Gray: lawmakers should pass safeguard legislation to make sure Medicaid expansion isn't threatened by lawsuit | Arkansas Blog

Saturday, April 23, 2016

Minority Leader Gray: lawmakers should pass safeguard legislation to make sure Medicaid expansion isn't threatened by lawsuit

Posted By on Sat, Apr 23, 2016 at 1:09 PM

GRAY: "That's as foolproof as we can get."
  • GRAY: "That's as foolproof as we can get."
Backers of "Arkansas Works," the governor's plan to continue the Medicaid expansion private option, have a plan in place to pass legislation to guard against any potential lawsuit over the unusual procedural mechanism the governor used to insure funding of the program. 

Democratic House Minority Leader Michael John Gray said that such safeguard legislation was a no-brainer: "We've entered some uncharted waters how we just did this, so anything we can do to shore this up and put some safeguards in place, we absolutely should be doing." 

The governor on Thursday line-item vetoed a dummy amendment attached to the Medicaid appropriation. The dummy amendment purported to end "Arkansas Works" at the end of this year, but the governor had announced ahead of time he would veto it and allow the Medicaid expansion to continue fully funded. Some have argued that a legal challenge could be raised arguing that the governor couldn't veto this line without vetoing the entire appropriation.

Democrats led an effort for different language on the dummy amendment to avoid this scenario — instead of restrictive language banning the spending, it simply has an end date for the program. Will that solve the potential legal issue? That's still murky, but as I reported on Thursday afternoon, lawmakers could resolve the question by passing a new piece of legislation. 

The dummy amendment says that the program has a sunset date at the end of this year. If lawmakers pass a new bill that says that the end date is at the end of 2021 (when the federal waiver for "Arkansas Works" will expire anyways), that would supersede the dummy amendment even if the governor's veto was overturned. A lawsuit would be moot. The Medicaid expansion would continue. Game, set, match. 

Crucially, the safeguard legislation could be passed by simple majority. In addition to Gray, Senate President Jonathan Dismang has publicly called the legislature to act to protect "Arkansas Works." The simplest avenue is probably for the governor to put it on the call for the upcoming special session for highways; he could also call a separate one-day special session for this purpose. Lawmakers want to get it done prior to the end of the fiscal year. 

When asked Thursday about this strategy, the governor declined to comment but said he was open to having conversations with legislators about it. He said that the line item veto was already on solid legal ground; this extra step would be like "double-tying your shoelaces." 

Gray said that Democrats would like to tie that extra knot. "That's as foolproof as we can get in the situation we're in," he said. Getting such legislation passed before the end of the fiscal session is "absolutely the plan," he said.

"Through the entire discussion with the governor and Sen. Dismang, this was always part of the process," Gray said. "I don't take anything away from the governor's 'no comment' other than the governor is not entering the legislative process." 

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

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