In my previous post on SB828, I criticized the bill for among other things – being vague on what, if any, approval is required before the bill allows the Governor to submit a federal waiver to embrace even more of Obamacare. The bill includes this sentence concerning waivers submitted by the Governor, “Any waiver submitted under this section shall have legislative approval under this section.”
I stand by my statement that the phrase “shall have legislative approval under this section” is vague and subject to multiple interpretations. It might be read as requiring: (1) approval by the General Assembly; (2) approval by a legislative committee or task force; or (3) the oddly worded sentence might even be interpreted as actually being the approval by the General Assembly for the Governor to submit any wavier he deems appropriate. The last interpretation mentioned is one proposed by another attorney (using the term “self-proving”), and I have to agree that it could be read that way.
One legislator deemed my concern over the bill’s vagueness as “silliness”.
After spending nearly thirty-two (32) years writing and reviewing legislation for the legislature, and teaching other bill writing attorneys to spot drafting problems, the issue of vagueness in this bill is not silly to me and should not be silly for anyone else who wants to know what the bill means.
Although the bill can be read in several ways, it is very unlikely that the bill was intended to require approval by a vote of the General Assembly, and therefore, it is my opinion that the bill hands over the General Assembly’s keys to Obamacare to others.
IF SB828 intended for the waivers to be voted on by the full General Assembly, there would be ABSOLUTELY NO NEED FOR THE BILL.
The Governor can already ask the General Assembly to pass a bill to approve a plan for a specific waiver plan. They do not need legislation to get that permission. That is the kind of thing they do every session. That is what former Governor Mike Beebe did when he gave draft legislation to legislators in 2013 for the waiver plan called the “Private Option.”
The Private Option legislation authorized an 1115 waiver under 42 U.S.C. § 1315. Guess what—SB828 authorizes the same waiver. The difference is that in 2013 the full General Assembly voted on the plan, but SB828 shifts the approval away from the full General Assembly (otherwise, what is its point?)
Obamacare is a significant issue with a great impact on the state and its revenues. The question of continuation of Obamacare Medicaid Expansion and other waiver issues should be decided by the full General Assembly–not by a committee or task force and not by merely the Executive Branch. I want my Senator and Representative to have a voice in the decision.
Conduit for Action opposes moving the decision making over new waivers from a vote of the General Assembly to a vote of a legislative committee or task force or handing the authority over to the Executive Branch to submit any waiver it wishes.
– – – – –
There are additional problems with SB828. The CFA article referenced in this post can be read though this link: SB828 amended to change a bad bill into….. a bad bill. These articles also address problems with the bill: SB828 Blueprint ; the radio interview – SB828 Exposed As Driving Arkansas Deeper Into Obamacare ; and SB828 Supporters Tout Federal § 1332 Waivers, But Is That a Good Thing?