(Update) The flaw in Jan’s Plan to expand AHCCCS

Posted by AzBlueMeanie:

I posted a few weeks ago about The flaw in Jan's Plan to expand AHCCCS. ICYMI, The Arizona Republic's Robert Robb reached the same conclusion last week, i.e., that Governor Brewer is going to need a two-thirds super-majority vote in both chambers of the legislature to pass the hospital bed tax provision in her plan for expanded Medicaid (AHCCCS in Arizona) because of Prop. 108 (1992). See, there are things on which liberals and conservatives can agree. How many GOP votes does Medicaid expansion need?

A lot of attention has been paid to the substance of Gov. Jan Brewer’s Medicaid expansion proposal. Less attention has been paid to a political and legal question that may be more important in determining its fate: How many Republican votes does it need in the Legislature to be enacted?

The assumption is that all the Democrats in the Legislature will vote for it. They may be tempted to attempt to bargain for something else in exchange for their support. If they are serious about the priority they claim to put on the expansion, they will forgo that temptation. Republican votes for expansion will be tricky to come by. If Brewer has to sell not only the expansion but what Democrats want in exchange for their votes in favor, it might become a bridge too far.

So, assume Democrats play it straight and Brewer can pocket their votes. If the expansion only needs a simple majority to be enacted, that would require just 3 Republican votes in the Senate and 7 in the House. Not much of a hill.

But Brewer’s Medicaid expansion proposal arguably needs more than a simple majority. Brewer is asking the Legislature to give the state agency that administers Medicaid authority to levy a provider assessment to pay the state’s cost of providing Medicaid coverage to childless adults.

In 1992, voters approved an initiative that requires a two-thirds approval from both houses of the Legislature for any “net increase in state revenues.” It explicitly includes “the imposition of any new state fee or assessment or the authorization of any new administratively set fee.”

That would certainly seem to cover what the governor is proposing. The governor’s office, however, is arguing that the assessment falls within an exception to the rule for “fees and assessments that are authorized by statute, but are not prescribed by formula, amount or limit, and are set by a state officer or agency. “

That’s a stretch. While there might not be an amount set in the authorization to the penny, there’s a clear understanding about its size. The number is in the governor’s budget and proposal. Claiming that exception would be a dubious wink-and-a-nod at a voter-approved constitutional requirement.

If the two-thirds approval applies, that raises the number of Republican votes Brewer needs to 7 in the Senate and 16 in the House. The hill just became steeper.

There is an informal rule in both the Senate and the House that leadership will not bring any bill to the floor that doesn’t have the support of a majority of the majority. That would require 9 Republican votes in favor in the Senate and 18 in the House. Even steeper.

Put another way, if the majority of the majority requirement prevails, just 9 of 30 senators or 19 of 60 House members could block the expansion.

The governor might be able to bargain for an agreement from leadership to bring Medicaid expansion to a vote without the majority of the majority requirement as part of a broader deal. But it would require pretty bruising negotiations. Permitting a vote on a Medicaid expansion opposed by a majority of his caucus would be particularly difficult for Senate President Andy Biggs.

So here's the deal: the various hospital associations, medical professional associations, business associations and chamber of commerce associations which support the expanded AHCCCS plan and are willing to impose a hospital bed tax are going to have to figure out just how to convince Tea-Publican legislators to vote for a new tax and thus abandon their pledges to ther lord and master Grover Norquist, Club For Growth, Americans For Prosperity, and every other right-wing anti-government, anti-tax organization of whom they live in fear of facing a well-funded primary opponent.

This would be a watershed event of major significance in Arizona. It has not occurred since Prop. 108 was foolishly approved by voters in 1992. "Business Republicans" had better get busy — this is going to be a heavy lift for you.

UPDATE: From the February 8, 2013 The Yellow Sheet Report:

One pro-expansion lobbyist said he is perplexed that the proverbial elephant in the room isn’t yet a focus of the discussion: Brewer’s proposal is expected to ask lawmakers to cede taxing authority to the AHCCCS director. “They want lawmakers to give that authority to an AHCCCS bureaucrat? In perpetuity? To me, it’s like, is anybody thinking about what that means? If I had to guess, that’s what the whole fate of this proposal will come down to. I can’t believe no one’s talking about it,” the lobbyist said.

[Senate President Andy] Biggs made comments on Wednesday expressing trepidation about the prospect of giving the authority “to the unelected director of AHCCCS to set a tax rate” on hospitals in the Ninth Floor’s attempt to avoid invoking Prop 108.

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