Dairyland Dust-Up Goes Beyond Worker Rights: Medicaid Power Shift Also Gaining Attention – Say Ahhh! A Children’s Health Policy Blog


By Bob Jacobson, Wisconsin Council on Children and Families

The eyes of the nation have turned to Wisconsin as an
epic struggle drags on between Governor Scott Walker on one side and unions
representing public employees and their supporters on the other. For readers
who have been on vacation for the last few weeks: Gov. Walker introduced a
budget adjustment bill that would, among other things, strip public employees
of most of their collective bargaining rights and make it much harder for
unions to organize and maintain members. So it is no surprise that the matter
has garnered a lot of attention even outside of Wisconsin, especially given our
state’s history as the birthplace of public employee unions.

The downside of all this publicity is that it has made it
very difficult to draw attention to everything else in the bill; and there is A
LOT of other stuff
deserves scrutiny tucked away in the 144-page document. Of the many provisions
in the bill that concern child advocates, perhaps the most alarming is language
that would essentially give the WI Department of Health Services (DHS) the
ability to completely rewrite the rulebook pertaining to Medicaid and BadgerCare, with
little or no opportunity for input from the full State Legislature or the
public. BadgerCare, originally championed more than a decade ago by former
Republican Governor (and later HHS Secretary) Tommy Thompson, currently serves
some three-quarters of a million Wisconsinites.  Under Republican and Democratic governors, BadgerCare has
delivered the care Wisconsin families need at a price they can afford.  In recent years, during the worst
economy in generations, the health and economic stability BadgerCare and
Medicaid deliver has been more important than ever. 

The budget repair bill would allow DHS–now headed by
Dennis Smith, who served as Medicaid director under President Bush–to implement
emergency rules that supersede laws currently on the books. The only potential
legislative involvement would be a passive review by the Joint Committee on
Finance, composed of 12 members of the majority party and 4 from the minority.
There would be no need to define the parameters of the “emergency” or indicate
what would mark its end. A drafter’s note from the nonpartisan
Legislative Reference Bureau, which did the actual writing of the bill, calls
into the question the constitutionality of this unprecedented power shift,
noting that: “Some of the language in the request would allow the DHS to change
any Medical Assistance law, for any reason, at any time, and potentially without
notice or public hearing.” This would appear to violate constitutional language
pertaining to separation of powers among the branches of government. A minor
amendment to the bill added a 2015 sunset, but that is of little comfort to

Federal law enacted via the Affordable Care Act includes
maintenance of eligibility (MOE) standards that limit states’ ability to reduce
eligibility. But the Wisconsin bill directs DHS to seek waivers that would give
the department the flexibility to change not only income limits, but also
tighten non-income eligibility standards, increase premiums or other
cost-sharing, and change enrollment procedures. Moreover, if the state does not
receive a waiver by December 31, 2011, the bill directs DHS to reduce
eligibility for adults (other than pregnant women and people with disabilities)
to 133 percent of the federal poverty level beginning on July 1, 2012. That
change could cause more than 63,000 parents and about 6,800 childless adults to
lose their coverage.

Needless to say, all of this is extremely worrisome. With
not much more than the stroke of Dennis Smith’s pen, thousands of people could
lose coverage, all sorts of barriers to enrollment could be put into place,
coverage for crucial services or supplies for some medical conditions could be
dropped…the list of what could be done in the name of a fiscal “emergency” is
virtually endless. It seems to us that the million-plus people in Wisconsin who
could be affected by changes to the state’s Medicaid law–and the people they
elected to represent them in the Legislature–ought to have the opportunity to
weigh in on those changes. Wisconsin has long been a national leader on health
care cover, and BadgerCare is one of the main reasons. It is heartbreaking to
see this excellent program, and the rest of the state’s health care safety net,
under such a threat.

The bill was approved by the State Assembly in the wee
hours of the morning of Friday, February 25 at the end of a marathon three-day
around-the-clock session. As of this writing, the only things standing in the
way of these changes becoming law are 14 Democratic Senators hiding out of
state to avoid a quorum, and the voices of a massive and growing protest
movement whose size easily rivals, and probably surpasses, those that took
place in these parts during the Vietnam War. While labor issues continue to be
the primary focus of the demonstrations, the statewide and national media have
begun to notice the Medicaid power shift and other parts of the bill.
Naturally, we hope that attention continues to grow.

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