Governor sets private-option special session

75% vote threshold studied

 Gov. Asa Hutchinson is shown in this file photo.
Gov. Asa Hutchinson is shown in this file photo.

Gov. Asa Hutchinson said Friday that he plans to call a special session of the Arkansas General Assembly starting April 6 to consider changes to the state's Medicaid expansion program.


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The special session would be followed by the regularly scheduled fiscal session, which begins April 13 and is held to consider only appropriation bills, such as the funding for the Medicaid program.

Hutchinson's chief of staff, Michael Lamoureux, said the Republican governor's administration is exploring whether the Legislature could require a two-thirds vote rather than a three-fourths vote of the state House of Representatives and state Senate in the fiscal session to authorize funding for the private-option program. The Legislature traditionally has approved appropriations bills with a three-fourths majority.

The governor wants to retool the program and rename it Arkansas Works. The program has deeply divided Republicans ever since it was authorized in 2013 by the Republican-controlled Legislature and then-Gov. Mike Beebe, a Democrat.

Two-thirds of the 100-member House is 67 representatives, and two-thirds of the 35-member Senate is 24 senators.

Three-fourths of the House is 75 representatives, and three-fourths of the Senate is 27 senators.

Senate President Pro Tempore Jonathan Dismang, R-Searcy, said he doesn't intend at this time to try to change the three-fourths threshold required in the Senate to approve funding for the Medicaid expansion.

The House speaker concurred. "It looks pretty black and white to me that an appropriations bill requires a three-fourths vote," Jeremy Gillam, R-Judsonia, said. "Maybe they know something I don't know and they'll brief on us later."

Gillam said he wants to research the matter thoroughly.

"I am not one to reinvent the wheel without looking at the issue from a lot of angles and whether it is a good idea or bad idea," he said.

The state uses federal Medicaid funds to purchase private health insurance for low-income Arkansans under the private option. Hutchinson wants to overhaul the program by encouraging job training and personal responsibility for the program's recipients, starting in fiscal 2017. The state is required to pay 5 percent of the program's cost in fiscal 2017, and the state's share is scheduled to gradually increase to 10 percent by fiscal 2020.

In its 2013 and 2014 sessions, the Legislature barely reached the three-fourths vote threshold required to authorize funding for the private option before it handily reached that threshold in the 2015 session after Hutchinson called for replacing the program in fiscal 2017.

But some Democrats and Republicans are questioning whether the Republican-dominated Legislature can reach the three-fourths vote threshold to authorize funding for the program in fiscal 2017, which starts July 1.

The expansion extended coverage to adults with incomes of up to 138 percent of the federal poverty level: $16,243 for an individual, for instance, or $33,465 for a family of four. About 200,000 Arkansans are in private-option plans.

During an interview at the National Governors Association meeting in Washington, D.C., Hutchinson said lawmakers will be summoned for a special session to begin on April 6 to focus on changes to the state's Medicaid expansion program.

Dismang said it's been his understanding that the special session is most likely to start on April 6.

Gillam said starting the special session on April 6 is "fine with me."

"We're doing a good job of getting the message out in terms of the substantial reform that's being put into place as well as the consequences of inaction, and so I am pleased with how we've presented it and I have confidence that thoughtful legislators will respond well to it," Hutchinson said.

"I think they have thus far, but I don't expect us to have any vote counts until the legislation's drawn up," Hutchinson said. "That won't happen for another two [or] three weeks to get that done."

He said he considers the three-fourths vote threshold to authorize funding for the Medicaid expansion to be too high.

"I mean, we've always worked together in Arkansas to have a consensus, so the supermajority hasn't come into play or really had adverse consequences in previous years," Hutchinson said. "But in a very contentious fight on health care it has come into play.

"When you think about [it], three-fourths is more than it takes to override the president's veto. It's more than it takes to confirm a Supreme Court justice," he said.

"I think there are some discussions whether there's some procedural means to change that requirement, but I think that's still being explored so I can't elaborate on that very well," Hutchinson said, referring a reporter for the Arkansas Democrat-Gazette to Lamoureux for further explanation.

Lamoureux, who is an attorney and a former state senator, said there are two provisions in the Arkansas Constitution that address the threshold for the Legislature to pass an appropriation measures and "one of them seems to say that a two-thirds [vote] is what's required and there's another that says three-fourths.

"We've always just done the three-fourths on all of the appropriations, but there's a legal argument or a constitutional interpretation that that could be required just on the first one and the members could in that first appropriation choose [to] go to the two-thirds standards after the first one just passes with the three-fourths," he said.

Article 5 of the state constitution addresses legislative matters, such as procedures for sessions and qualifications of members.

Section 39 of Article 5 addresses the three-fourths vote for appropriations: "Excepting monies raised or collected for educational purposes, highway purposes, to pay Confederate pensions and the just debts of the State, the General Assembly is hereby prohibited from appropriating or expending more than the sum of Two and One-Half Million Dollars for all purposes, for any fiscal year; provided the limit herein fixed may be exceeded by the votes of three-fourths of the members elected to each House of the General Assembly."

But Section 31 makes reference to a two-thirds vote: "No State tax shall be allowed, or appropriation of money made, except to raise means for the payment of the just debts of the State, for defraying the necessary expenses of government, to sustain common schools, to repel invasion and suppress insurrection, except by a majority of two-thirds of both houses of the General Assembly."

Section 30 spells out the rules for appropriations bills: "[T]he general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the State; all other appropriations shall be made by separate bills, each embracing but one subject."

The first appropriation is addressed in Section 40: "In making appropriations for any fiscal year, the General Assembly shall first pass the General Appropriation Bill provided for in Section 30 of Article 5 of the Constitution, and no other appropriation bill may be enacted before that shall have been done."

Lamoureux said the debate about the number of legislators who will vote to pass the appropriation for the state Department of Human Services, which includes the funding for the Medicaid expansion, led the Hutchinson administration to review whether a two-thirds or three-fourths vote is required.

"In the Senate, that requires 27 votes and the question is, is that constitutionally required under the Arkansas Constitution or is there another way to do that," he said.

"If we had 33 or 35 votes, we wouldn't be having this conversation, but it's also just preparation," Lamoureux said. "We check on all possibilities, and if something's a possibility, you know, if it's a 1 percent chance or a 5 percent chance, we want to chase it down and make sure we're prepared if that arises."

Lamoureux said the Hutchinson administration is going to work hard to get a three-fourths vote of the Senate and the House to authorize funding for the Medicaid expansion.

"But if those votes weren't present, it would be nice to, it would be appropriate, to know what the actual constitutional standard was," he said.

Dismang, who is one of three lawmakers who are the architects of the private option, said that the governor's office "is trying to thoroughly understand everything in the appropriation process."

He said he didn't initiate discussions about the possibility of changing the voting threshold for approving funding for the Medicaid expansion.

"We are going to have some folks look at it," Dismang said. "I don't have any intent to try to change that [three-fourths vote] threshold at this time."

He said it's too early to count votes in the Senate for an appropriation for the Medicaid expansion.

"We haven't even passed the policy," nor drafted the bills, Dismang said.

After the Legislature passes changes in the Medicaid expansion in the special session, "then we'll move into the appropriation process [in the fiscal session] and whether it's appropriate to utilize appropriations to dictate policy," Dismang said.

Sen. Bart Hester, R-Cave Springs, said, "The reality is that everyone knows there [are] nine 'no' votes in the Senate and, with that, where do you go from there?

"The good news is we all talk and we are all friends and we are trying to find a solution we can all agree with, and I don't think there is one on the table at this time, but we have a few weeks," he said.

"I didn't support starting the program and so I support the ending the program," Hester said.

"But all of us in Arkansas want the best for Arkansans. We simply can't afford it. I think you have to be reasonable on your approach to ending a program like that and know that there is real human lives involved, so there could be consensus on how to end the program. Maybe something like a phaseout."

Gillam said he hasn't conducted any vote counts on the support for funding the Medicaid expansion, saying the framework legislation has to be passed first.

House Democratic leader Michael John Gray of Augusta said that he doesn't have any doubt that there isn't three-fourths support in the House for funding Medicaid expansion in fiscal 2017.

"I don't think they realize how short they are," Gray said. "We have watched people get beat over this this last time."

Metro on 02/20/2016