Georgia State University Law Review Volume 31 Article 13 Issue 1 Fall 2014 December 2014 Public Assistance HB 990 Georgia State University Law Review Follow this and additional works at: https://readingroom.law.gsu.edu/gsulr Part of the Law Commons Recommended Citation Georgia State University Law Review, Public Assistance HB 990, 31 Ga. St. U. L. Rev. (2014). Available at: https://readingroom.law.gsu.edu/gsulr/vol31/iss1/13 This Peach Sheet is brought to you for free and open access by the Publications at Reading Room. It has been accepted for inclusion in Georgia State University Law Review by an authorized editor of Reading Room. For more information, please contact [email protected]. : Public Assistance HB 990 SOCIAL SERVICES Public Assistance: Amend Article 7 of Chapter 4 of Title 49 of the Official Code of Georgia Annotated, Relating to Medical Assistance Generally, so as to Prohibit the Expansion of Medicaid Eligibility through an Increase in the Income Threshold without Prior Legislative Approval; to Provide for Legislative Findings; to Provide for Related Matters; to Repeal Conflicting Laws; and for Other Purposes CODE SECTION: O.C.G.A. § 49-4-142.2 (new) BILL NUMBER: HB 990 ACT NUMBER: 534 GEORGIA LAWS: 2014 Ga. Laws 293 SUMMARY: The Act prohibits the Governor from expanding Medicaid eligibility through an increase in the income threshold without first obtaining the General Assembly’s approval. The Act provides that this prohibition does not extend to any increase in the income threshold that results from a cost-of-living increase in the federal poverty level. EFFECTIVE DATE: July 1, 2014 History On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (ACA) into law.1 Congress enacted the ACA in an effort to increase the number of Americans protected and covered by health insurance and decrease health care’s overall cost.2 Two provisions of the ACA proved especially controversial and resulted in litigation: (1) an individual minimum health insurance 1. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119-1025 (2010); Sheryl Gay Stolberg & Robert Pear, Obama Signs Health Care Overhaul Bill, With a Flourish, N.Y. TIMES (Mar. 23, 2010), http://www.nytimes.com/2010/03/24/health/policy/24health.html?_r=0. 2. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2580 (2012). 191 Published by Reading Room, 2014 1 Georgia State University Law Review, Vol. 31, Iss. 1 [2014], Art. 13 192 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 31:1 coverage requirement—an individual mandate;3 and (2) a provision that offered states expanded federal Medicaid funding but required them “to expand their [state] Medicaid programs by 2014 to cover all individuals under the age of 65 with incomes below 133 percent of the federal poverty line . .” or face losing their existing Medicaid funding.4 Twenty-six states, including Georgia, brought action against the Department of Health and Human Services, the Secretary of the Treasury, and the Department of Labor, challenging the constitutionality of these two ACA provisions.5 The United States Supreme Court declared the Act’s individual mandate a permissible “tax” and not a penalty, in spite of its purpose of influencing individual citizen conduct such that health insurance coverage increases.6 In June 2012, while the Court upheld most provisions of the ACA, it rejected the law’s provision that sought to penalize states failing to comply with the expanded Medicaid eligibility requirements.7 The Court held that conditioning existing federal funding on a state’s participation in Medicaid expansion violated the Spending Clause because it failed to offer states a genuine choice.8 Following the Court’s decision, states, including 3. 42 U.S.C. § 1396a (2010). 4. Sebelius, 132 S. Ct. at 2601. States failing to comply with the conditions attached to expanded federal Medicaid funding faced a significant and potentially state-budget-impacting penalty. The language of the penalty was as follows: If the Secretary, after reasonable notice and opportunity for hearing to the State agency administering or supervising the administration of the State plan approved under this [subchapter], finds . that in the administration of the plan there is a failure to comply substantially with any such provision[,] the Secretary shall notify such State agency that further payments will not be made to the State (or, in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure), until the Secretary is satisfied that there will no longer be any such failure to comply. 42 U.S.C. § 1396c (2010). 5. See Fla. ex rel. Bondi v. U.S. Dept. of Health & Hum. Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2011). Thirteen states originally filed suit in the Northern District of Florida. Complaint, Fla. ex rel. Bondi v. U.S. Dept. of Health & Hum. Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (No. 3:10-cv-91). On May 14, 2010 the complaint was amended to include an additional seven states, including Georgia. Amended Complaint, Fla. ex rel. Bondi v. U.S. Dept. of Health & Hum. Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (No. 3:10-cv-91). Six more states were added to a second amended complaint on January 18, 2011. Second Amended Complaint, Fla. ex rel. Bondi v. U.S. Dept. of Health & Hum. Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (No. 3:10-cv-91). 6. Sebelius, 132 S. Ct. at 2596. 7. State Laws and Actions Challenging Certain Health Reforms, NCSL (Aug. 1, 2014), http://www.ncsl.org/research/health/state-laws-and-actions-challenging-ACA.aspx. 8. Sebelius, 132 S. Ct. at 2607. Congress may offer Affordable Care Act funds to encourage and provide for the expansion of health care availability, and Congress may require that states accepting the https://readingroom.law.gsu.edu/gsulr/vol31/iss1/13 2 : Public Assistance HB 990 2014] LEGISLATIVE REVIEW 193 Georgia, could either expand Medicaid and accept new federal funding or maintain the state’s current program or reject the new federal funding, and lose existing funds.9 Georgia elected to maintain its existing Medicaid program and, as of August 2014, did not expand Medicaid coverage to able-bodied adults earning up to 133 percent of the federal poverty line.10 The federal government paid roughly sixty-six cents on the dollar under the then current Georgia Medicaid program.11 Health care was a substantial portion of the State’s budget— health care accounted for 4.1 billion dollars of Georgia’s 19.7 billion dollar budget—roughly twenty percent.12 The Governor’s 2015 fiscal year budget proposal estimated 2.9 billion dollars—of the total 4.1 billion dollar health care budget—would be spent to pay for health care services for 1.9 million Georgians covered by the Georgia’s Medicaid and PeachCare programs.13 Had Georgia decided to expand Medicaid coverage, it was estimated that between 600,000 and 800,000 additional Georgians would have qualified for health care coverage, increasing health care costs and pushing that twenty percent even higher.14 Georgia is one of eight states that did not require a vote by the state legislature to expand the Medicaid income threshold.15 The funds comply with pre-determined conditions. Id. Congress is not, however, free to penalize states that choose not to participate. Congress may not take away existing Medicaid funding. Id. 9. Issue Analysis: Options for Georgia Going Forward under the ACA, GEORGIA PUBLIC POLICY FOUNDATION (Jan. 17, 2013) [hereinafter Issue Analysis] (on file with Georgia State University Law Review). This study was first published for Florida but the Georgia Public Policy Foundation added Georgia-specific data and analysis. Id. See also Policy Brief: Options for Florida Going Forward Under the ACA, THE JAMES MADISON INST. (Oct. 2012), http://www.jamesmadison.org/wp- content/uploads/PolBrief_ACARecommendations_JMIStaffOct12.pdf. 10. Georgia Medicaid Moving Forward in 2014, MEDICAID.GOV, http://www.medicaid.gov/ Medicaid-CHIP-Program-Information/By-State/georgia.html (last visited May 24, 2014). 11. See Telephone Interview with Sen. Chuck Hufstetler (R-52nd) (Apr. 3, 2014) [hereinafter Hufstetler Interview]; see also Georgia Budget Primer 2014: Health Care, GA. BUDGET AND POL’Y INST. (July 19, 2013), http://gbpi.org/wp-content/uploads/2013/07/Georgia-Budget-Primer-2014-Health- Care-Section.pdf. 12. Tim Sweeney, Overview: 2015 Fiscal Year for Medicaid and PeachCare, GA. BUDGET & POL’Y INST. (Jan. 22, 2014), http://gbpi.org/overview-2015-fiscal-year-for-medicaid-and-peachcare. 13. Id. 14. See Audio Recording of House Judiciary Committee, Feb. 24, 2014 at 26 min., 51 sec. (remarks by Rep. Jan Jones (R-47th)) (on file with the Georgia State University Law Review) [hereinafter House Committee Recording]. 15. Andy Miller, Georgia House Committee Passes Bill to Block Medicaid Expansion, ONLINE ATHENS (Feb. 26, 2014), http://onlineathens.com/general-assembly/2014-02-25/georgia-house- committee-passes-bill-block-medicaid-expansion. Published by Reading Room, 2014 3 Georgia State University Law Review, Vol. 31, Iss. 1 [2014], Art. 13 194 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 31:1 authority to increase the income threshold, expanding Medicaid coverage, rested solely with the Governor.16 In 2013, Governor Nathan Deal chose not to support Medicaid expansion and has made it clear that he has no intention of expanding Medicaid should he be reelected to a second gubernatorial term.17 The power to unilaterally impact the budget through expanding