Private Option Can’t Be Repealed Because..?

They say you can't get out.

They say you can’t get out.

Some Private Option supporters claim: “The Private Option can’t be repealed because people are already enrolled in the program.”  Strange, that was not what supporters were saying when they were trying to get skeptical legislators to go ahead and pass the law.

Their argument is seriously flawed.

  1. It is the argument of BIG GOVERNMENT advocates.
  2. Supporter have not thought this argument through, because it would make the safeguards of the Private Option law a lie meant to deceive legislators into voting “yes”.
  3. The argument is shown to be wrong by actions of this same legislature.
  4. It turns a blind eye to defects in the program.
  5. It ignores increased voter opposition to the Private Option.


Those who adopt the argument that you can’t go back are saying a lot about their attitude toward big government.  This is a big problem for Republicans who claim they want smaller government and less regulation.

When some supporters say you can’t repeal a program that only has been operating for less than a year, then no wonder taxpayers are wondering about promises to rein in government.  The message sent to taxpayers by Democrats and big government Republicans is that taxpayers should expect to foot the bill for more programs and more regulations and more government involvement in the taxpayer’s life year after year from now on.


To vote for the Private Option law and then turn around and claim that you just can’t repeal the program now that it has enrollees, is to say that restrictions, protections and limitations placed in the Private Option Law didn’t mean a thing.  The argument makes the assurances in the law appear as as if they were nothing but a ploy. When the next promises come along :  “CAVEAT EMPTOR!”

  1. Private Option Sunset Date

The “Arkansas Healthcare Independence Act of 2013” (Private Option law) created a trial period to experiment in Obamacare.  By its terms the Arkansas law expires in 2017.  It is temporary and will expire unless a future legislature reauthorizes the big government program.  A program that leaves taxpayers on the hook for its cost both as Arkansas taxpayers and as federal taxpayers who have already been handed over $17.6 trillion dollars of federal debt.

As the 2014 Fiscal Session began, John Selig, director of the Arkansas Department of Human Services noted that “…when the Legislature created the private option last year, it set an end date for June 30, 2017, giving lawmakers a chance to decide whether to reauthorize the program the same year that the state would begin paying a portion of the cost.  “I would hope that we would at least see it through that three-year period and then make a thoughtful decision, informed by experience, about whether this is something we want to continue”. [i] Clearly, it was understood by opponents and proponents alike that the Private Option was set up as an experiment and not as something that must be permanent once people sign up.

  1. Financial Triggers

During the 2013 debate on the Private Option, the bill was touted as having triggers that would automatically shut down the Private Option if certain conditions were not met.  But, if your argument is that once people signed up the law can’t be repealed, then it shows that you would even cast aside these triggers in the name of big government.  The annual federal support trigger is already being sidestepped as the accounting for cost overruns is delayed until 2017.

  1. Amendment added to quell concern that the program might be permanent

In 2013, opponents of the Private Option were concerned that proposed changes in the State Medicaid Plan to accommodate the Private Option might become permanent or extremely hard to change.  Supporters came back with an amendment to assure opponents that Arkansas wouldn’t get locked into a permanent decision.  This is what the Arkansas Democrat Gazette had to say about the amendments: “The amendments also specify that the state will not seek permanent amendments to its Medicaid State Plan. The state plan is the contract between the state and federal government detailing how the state will run its Medicaid program. ….. Some members feared that the state would change its state plan and be forced to provide the private option to 250,000 Arkansans from now on, even if the state couldn’t afford it or federal funding plunged.[ii]  Yet now some supporters say, “Sorry we can’t turn back.”

  1. Enrollees must sign statement

The Private Option law requires enrollees to sign a statement affirmatively acknowledging that:

(1) The program is not a perpetual federal or state right or a guaranteed entitlement;
(2) The program is subject to cancellation upon appropriate notice; and
(3) The program is not an entitlement program.

The Private Option law is clear.  The plain meaning of the law is that it was never intended to be permanent or to be an entitlement.  By arguing that you can’t repeal the Private Option once it had enrollees is to reject the clear intent of the act and to declare it a “perpetual entitlement.”

  1. Not Permanent in the Eyes of the Federal Government

To implement the Private Option the state had to get a Medicaid expansion wavier.  The program is considered a “demonstration project.”  This means that either Arkansas or the federal government may end the project.

What if the feds began requiring participating states to use the regular Obamacare Medicaid expansion system?  Since supporters claim that once you start you can’t go back, I assume they would also claim that Arkansas would be obligated to enrollees to adopt traditional Medicaid expansion.  This is the logical extension of the argument, despite the Arkansas application for a waiver stating that the traditional delivery system of Medicaid won’t work in Arkansas.


Some Private Option supporters say that once we started down the road, we can never go back.  Is that so? Does anyone recall what happened in the 2nd Extraordinary Session of 2014?  The legislature took away some health care benefits from teachers as part of a plan to make teachers’ insurance more affordable.  Surely, Private Option supporters are not saying that removal of a benefit is only allowed if the person receiving the benefit is a teacher.

Speaking of teachers here is something you may not know. Arkansas used to give retired teachers and retired state employees a state income tax exemption on the teacher and state employee pension income. Other retires received only a $6,000 exemption.  In Pledger v Bosnick, 306 Ark. 45, 811 S.W.2d 286 (Ark., 1991) a federal retiree sued claiming that Arkansas should give him a full exemption too.  The court said the federal retiree must receive the same exemption as teachers and state employees.  BOOM.  Instead of giving the federal retirees a full exemption, the legislature quickly changed the law to take away the extra benefit for retired teachers and retired state employees.  Did you hear that?  The fact that a benefit existed did not keep the legislature from doing its job of managing the state budget and making the hard decisions when things weren’t going to play out well for the state.


The magic arguments for the Private Option keep turning into smoke.

  • We can’t afford not to take the free money. POOF!  The money is not free.  POOF!  The cost overruns put Arkansas taxpayers in jeopardy for having to pay millions.  POOF! If Arkansas is going to have to pay cost overruns then doesn’t that mean that the combined federal/state payment is more than Medicaid expansion would have been without the Arkansas waiver? And POOF even excluding the cost overruns, the days of 100% federal funding will be drawing to a close.
  • The Private Option is working well”POOF!  Sure, tell that to the most needy on traditional Medicaid who see Private Option enrollees are getting priority over them.


Arkansas voters apparently haven’t bought in to the big government argument that you can’t end a program.  Just consider changes to the 35 member Arkansas Senate.

January 14, 2014, Private Option opponent John Cooper elected to Senate in a special election.

May 20, 2014, Private Option opponent Terry Rice defeats an incumbent who supported the Private Option and with no other opponent becomes a Senator-Elect.

June 10, 2014, Private Option opponent, Scott Flippo, wins the Republican Primary Runoff against a Private Option supporter and with no other opponent becomes a Senator-Elect.

Are you really going to convince these and other new voices that they can’t undo mistakes of just two years ago?  A State Senator apparently would like to teach these new voices that personal values and campaign promises mean nothing in politics. Speaking of Scott Flippo’s opposition to the program, a Senator said: I understand that this is his central plank, but at the same time there’s a difference between campaigning and legislating.”[iii]  Really? 

Democrats and big government Republicans want you to believe that once a government program is created it is permanent, and government must always get bigger.  Is that the kind of government you want?


[i] Cost of private option is big concern, foes say, Arkansas Democrat Gazette, Feb 16, 2014

[ii] Private-option redo gets key bill to Beebe, Arkansas Democrat Gazette, April 18, 2013

[iii] Burris Defeat, GOP Runoff Clouds Private Option Future in Arkansas, Arkansas Business, Jun. 11, 2014