The bill was amended on March 17, 2015. One change in SB828 seems to be intended to distract the reader, and other changes are reminiscent of a Obamacare expert, Johnathan Gruber’s style of “tortured language.”
“SHALL HAVE LEGISLATIVE APPROVAL UNDER THIS SECTION”
The most curious change in SB828 says federal waivers submitted by the Governor pursuant to SB828 “shall have legislative approval under this section”. At first blush it sounds straight forward, but the language couldn’t be anymore vague. The sentence is vague and I do not know what it means. It is so vague that I would recommend that sentence be used by the legal community as an example of how not to write a clear law.
1. Approval by whom? Some might assume “legislative approval” means the waivers must be approved by the Arkansas House and Senate, but this is not what it says. If approval by the House and Senate was intended it would have said approval by the “General Assembly”. “Legislative approval” could mean several things. It could mean approval by a committee or subcommittee. If so, which committee? Arkansas legislative Council? Insurance and Commerce? Public Health Welfare and Labor Committee? Arkansas Health Insurance Marketplace Legislative Oversight Committee? Different committees? It just doesn’t say.
For those who want waivers to be approved by the full General Assembly this provision is bad news.
2. Approval under this section? Notice the words “legislative approval under this section”. The word “section” means the new section being created as § 23-61-903. The full text of § 23-61-903 appears below. Look to see if you can find any approval procedures in the section. The answer is “no”. So what does “legislative approval under this section” mean? The answer is – the language is too vague to have meaning.
23-61-903. Waiver authority.
The Governor is authorized to:
(1) Submit and apply for federal waivers under:
(A) 42 U.S.C. § 1315, § 1396n, and § 18052;
(B) 31 C.F.R. Subtitle A, Part 33; and
(C) 45 C.F.R. Subtitle A, Part 155, Subpart N; and
(2) Submit and apply for federal waivers necessary to effectuate the purposes of this subchapter.
((b) Any waiver submitted under this section shall have legislative approval under this section.
3. Alternate interpretation – Does passage of the act constitute the “legislative approval” for the waivers? Some have suggested that the words “shall have legislative approval under this section”, means the waivers (whatever they might be) are being approved by § 23-61-903. Under this interpretation “shall have” is interpreted as meaning “we give approval by passing this section”.
This interpretation seem unlikely but I can’t rule it out, because of the abundant vagueness built into the sentence. Use of “shall have” is awkward at best, and the words “must have” would have been clearer if it means approval must be obtained.
WHAT KIND OF WAIVERS ARE AUTHORIZED?
EXPLANATION OF THE TERM “WHEREAS Clause”
WHEREAS Clause – If a bill has a “WHEREAS clause” it appears after the title and before the enacting clause and is not part of the new law. WHEREAS clauses are sometimes used to explain the complicated background of a bill without making the explanation part of the law. Just as frequently a WHEREAS clause is a way to insert statements intended to sell the bill.
ENACTING Clause – An “enacting clause” is the clause the begins “BE IT ENACTED…” and the new law appears after the enacting clause.)
The amendment to SB828 changed a WHEREAS clause to specifically mention Section 1332 Waivers.
WHEREAS, under 31 C.F.R. Subtitle A, Part 33, federal Waivers for State Innovation, commonly referred to as “Section 1332 Waivers“, are authorized to permit a state to waive provisions of federal laws relating to the provision of healthcare items or services; and
The change doesn’t really add anything to the bill, especially since the clause will not be a part of the law. But, it may serve to distract the reader and may cause some readers to think the bill about Section 1332 waivers.
Also notice that this WHEREAS clause and some of the others talk about certain federal regulations (CFR), but avoid saying anything about some very important federal statutes included in the bill.
One of several federal provisions SB828 lists as authority for waivers is “42 U.S.C. § 1315”. That section may sound familiar. 42 U.S.C. § 1315 is the section of federal law under which Arkansas adopted Obamacare Medicaid Expansion though a Section 1115 waiver which created the program called “Private Option.” Yes, SB828 would allow a Section 1115 waiver; and yes, the Private Option/ Medicaid Expansion could be continued or modified though a Section 1115 waiver authorized by SB828.
SECTION 1332 WAIVERS
Section 1332 waivers have been hyped as a way to try innovative approaches and to avoid some Obamacare provisions. Instead, a Section 1332 waiver is a part of Obamacare! It doesn’t help you escape Obamacare it is part of the Obamacare plan.
For a good discussion of the pitfalls of Section 1332 waivers we recommend you listen to Paul Harrell’s interview of Jonathan Ingram of the Foundation for Governmental Accountability.