Republican Medicaid Bill Creates Bureaucracy, Cuts Healthcare for 50,000 AND Possibly Unconstitutional

Why oh why is this sham allowed to go on?

Ed Buttrey’s new bill to eviscerate Medicaid expansion with possibly illegal work requirements that according to George Washington University’s Milken Institute:

“We conservatively estimate that between 50,000 to 56,000 of the 95,000 current HELP enrollees would lose Medicaid coverage if the bill is adopted.”

Those numbers alone should ensure this bill fails, but now, according to the legislative services own lawyers, the bill may be unconstitutional on its face for discrimination against religious organizations.

Legal Reviewer Comments:

LC1251 as drafted makes the medicaid program permanent by repealing the termination date of the Montana Health and Economic Livelihood Partnership Act (HELP Act). Section 10 of LC1251(amending section 15-30-2660(3), MCA) imposes “taxpayer integrity fees” for certain participants in the HELP Act. One of the fees provides that an entity organized under 26 U.S.C. 501(d) is assessed a fee when the entity has members who receive medicaid coverage. An entity organized under 26 U.S.C. 501(d) includes “religious or apostolic associations or corporations” with a common treasury or community treasury where members include a portion of the taxable income of the association or corporation on their federal tax return. Additionally, pursuant to section 1(3)(i), a member of an entity subject to this fee is exempt from the community engagement activities.

By subjecting one group of people that are members of a religious or apostolic association with a fee while not imposing a fee on other organizations, section 10 of LC1251 may raise potential constitutional conformity issues with respect to the Equal Protection requirements of Article II, section 4, of the Montana Constitution, as well as the Equal Protection requirements of the Fourteenth Amendment of the United States Constitution. There is also a similar potential constitutional conformity issue with granting members of one religious organization an exemption from the community engagement requirement without providing the same benefit to other individuals of another organization.

Article II, section 4, of the Montana Constitution provides:

The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas. (emphasis added).

If the bill is ruled unconstitutional at the state or federal level the entire program could be ruled null and void due to adding provisions about non-severability and contingent voidness which make an entire bill invalidated if even one provision is ruled illegal or unconstitutional, hat tip to former Montana legislator Mike Jopek for this heads up.

From the text of HB 658:

Section 48.  Nonseverability. It is the intent of the legislature that each part of [this act] is essentially dependent upon every other part, and if one part is held unconstitutional or invalid, all other parts are invalid.

The danger of non-severability is because not only does it raise very problematuce concerns about religious discrimination, so many other parts of HB 658 are currently tied up in very public litigation in other states. Oral arguments on illegal work requirements in both Arkansas and Kansas are currently ongoing.

This is a recipe for disaster.

It’s time to put HB 658 to bed and pass full Medicaid expansion, as was passed in 2015 and lift the sunset.

According to a just-released article by Mike Dennison, Chief Political Reporter for the Montana Television Network:

Montana’s Medicaid expansion, which covers 96,000 low-income adults, has had a huge economic and health-care impact on the state, creating thousands of jobs and greatly lowering the number of uninsured people, says a study released Tuesday by Montana hospitals.

The study, released hours before a House committee planned to vote on bills to continue the Medicaid program, also compared Montana’s program and health impacts to neighboring states, including those that have not expanded Medicaid to cover poor, able-bodied adults.

“Medicaid expansion is improving health outcomes, creating a healthier workforce and saving Montana businesses millions in health-care costs,” said Rich Rasmussen, president of MHA, the lobby group representing Montana hospitals. “Medicaid expansion is contributing to billions of dollars in positive economic activity in Montana and, in a nutshell, Montana Medicaid works.”

The study by Navigant, an international consulting firm, focused on the program’s first two-and-half years in Montana, from 2016 through mid-2018. Its findings include:

• The program spent $1.24 billion during that time period, with $693 million coming in the final full year of fiscal 2018. Of that total, the federal government covered $1.17 billion, leaving about $70 million to be covered by the state and premiums paid by some of those covered.

• The expansion has led to an additional $2 billion of economic activity in Montana, using a common economic multiplier effect. It supported or created an additional 9,700 jobs during that time period and nearly $800 million of associated wages.

• About 84 percent of Montana private-sector workers have at least one co-worker who was covered by expanded Medicaid in 2017.

• In fiscal 2017, about 8 percent of Montana’s population was covered by Medicaid expansion — about the same as Washington and Colorado, but less than Oregon (10.8 percent) and more than North Dakota (2.7 percent). South Dakota, Wyoming and Utah did not have expanded Medicaid that year.

• Montana’s rate of people without health insurance dropped 56 percent from 2013 to 2016, in large part because of Medicaid expansion. The only other state in the region with a higher percentage drop was Oregon, at 58 percent.

• Montana hospitals saw a $270 million increase in Medicaid net-patient revenue from 2015 to 2017.

If you appreciate an independent voice holding Montana politicians accountable and informing voters, and you can throw a few dollars a month our way, we would certainly appreciate it.

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Nathan Kosted

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