2014 Private Option Amendments Ineffective


(with Disguised Support)

HB 1150 was amended to add sections concerning the Private Option. (Identical amendments await Senate approval for SB111) Rep John Burris’ amendment includes a tough sounding trigger for termination of the Private Option.  Rep Nate Bell’s amendment seeks to stop DHS from spending funds to advertise the Private Option. 

Upon close reading we find the restrictive language in the amendments is designed to sound tough but to be ineffective. The restrictions are the legislative equivalent of a ‘head fake.’ Together the sections impose a false trigger for termination and do not repress enrollment.  (Instead of restrictions we get expanded services and speeding implementation.)


New Section 17 of HB1150, as engrossed 2/13/14 and Section 17 in proposed Senate Amendment S1 to SB111 are identical.  This amendment proposed by Representative Burris seeks federal approval for Waivers or Medicaid State Plan amendments which 1) grant additional services[i] to the able-bodied, non-aged, nondisabled enrollees and 2) speed up the date[ii] for implementation of Health Savings Accounts.[iii]

The language has some tough talk as well – stating the “Private Option”[iv] will terminate February 1, 2015 if the federal government does not approve these newly requested waivers/ state plan changes….

But, keep reading…you learn under its subsection (e) that even if the federal government fails to give the approvals, DHS could restart the program after five months[v], and none of the restrictions of Section 17 apply.  Since the trigger is only effective for five months, it is doubtful it would even be allowed.

Track with us the process and trajectory of the “Private Option” (PO), to date:

  • Due to DHS being given wide latitude under the amendment to come up with plans acceptable to the federal government, it is unlikely a DHS submitted plan would trigger termination.
  • Even if federal approval was not received, the trigger in Section 17 is only TEMPORARY.  Subsection (e) states: “This section expires on June 30, 2015.” (Note:  It could have easily not included an ending date and been made permanent.)
  • On July 1, 2015, once Section 17 is no longer effective, the state still has the HCIA, which authorizes the establishment of the Private Option under the original terms.[vi]
  • Since Section 17 is only temporary, DHS could re-submit the PO to the feds in time to have the program restarted by July 1, 2015. (Yes, an appropriation would still be necessary, as before.)
  • Regardless of its tough talk, Section 17 is timed to maximize arguments against pulling triggers.  The next General Assembly will be in session on the trigger date.  From the “hue and cry” today (after only 6 weeks of Medicaid expansion), below are predictable arguments against pulling triggers:
    • “The plan can be revived in five months—why penalize enrollees with a five month gap in services.”
    • “Pulling the trigger on Feb 1 will pull the rug out from under people who relied on the program and have been enrolled only for a month (note Burris’ actions below).”[vii]
    • “The feds didn’t approve all but we got most (or some) of them, so let’s not forfeit the program.”

This is not the first time in the short history of the “Private Option” that there was tough sounding talk by its proponents about ending the PO on “our terms” with “triggers” that fall short of reality. [viii]


Representative Nate Bell proposed amendments to various bills to prohibit various state agencies from expending funds to promote the Private Option (Medicaid Expansion in Arkansas). The language for the Department of Human Services is new Section 16 of HB1150, as engrossed 2/13/14 and Section 16 in proposed Senate Amendment S1 to SB111.  The language has already been criticized as being minimally effective because private entities can step in and continue the effort to advertise the program.

There are another couple of aspect of the language that may have been overlooked.

  • The advertising restriction only applies for one year (July 1, 2014 through June 30, 2015).  Two questions:
    • Why is it temporary?  It could have been proposed as a permanent restriction; and
    • Why wait until July 1 for it to go into effect? The restriction could have been proposed to take effect as soon as the bill is signed into law.

In addition to the argument that the Bell amendment is ineffective and a weak attempt to repress enrollment, one only has to examine the actual HCI Act to see that under its own terms (unaffected by this amendment) it will add an estimated 100,000 new enrollees in 2015[ix], all while ACA§20-77-2405(3) directs DHS to simultaneously develop and implement strategies to inform Medicaid recipients that the programs under HCIA may better service their needs.

In conclusion, the more quickly the proponents of the Private Option increase enrollment and benefits, the less likely it is that Arkansas will ever reform Medicaid to insure it survives for those in need.  It is the considered opinion of Conduit for Action that these amendments (cloaked with a veneer of “tough talk, triggers, and reduced enrollment”) simply and intentionally speed the implementation and expansion of free services to Arkansans who are “able-bodied,” non-aged, nondisabled, at great risk to Arkansas’ vulnerable and fra


[i] See Subsection ( c)(1)(A) “nonemergency transportation”

[ii]See ACA §20-77-2405(j)(1) from DHS developing a plan “during the calendar year 2015” to Proposed ( c)(1) a plan “to be effective no later than February 1, 2015

[iii] See proposed ( c)(1)( C)-to be offered to those making above fifty (50%) percent of the federal poverty level.

[iv] Medicaid Expansion in Arkansas

[v] Five months from February 1, 2015 to July 1, 2015

[vi]with all intact but nonemergency transportation benefits for “able-bodied,” non-aged, nondisabled persons.  See content of proposed amendment.

[vii]Note Rep. Burris’ original amendment, proposed one day earlier, had a Jan 1 trigger (offered on February 12, 2014 in the Special Language Joint Budget Subcommittee; that amendment was pulled/changed to a Feb 1 trigger date-infringing one month into the next year’s coverage.

[viii] See CMS Sept 2013 “Terms and Conditions” imposed on the Arkansas August 2013 Private Option 1115 Waiver

[ix] under ACA §20-77-2405(e)(2) from children eligible for the ARKids First Program Act and populations under Medicaid from zero percent (0%) to seventeen percent (17%) of FPL-See enrollment -75,000 children-see page 3- http://www.aradvocates.org/assets/PDFs/Health/Private-Option-Reaction.pdf