House of Representatives
Georgia State Capitol ● Coverdell Legislative Office Building ● Atlanta, Georgia ● 30334
May 26, 2015
Commissioner Clyde Reese
Department of Community Health
2 Peachtree Street, NW
Atlanta, Georgia 30303
[email protected]
Re: Proper authorization to request a federal section 1115 for precursory Medicaid expansion
Dear Commissioner Reese:
It has come to our collective attention through various media reports that line item 81.9 of the Fiscal Year
2016 General Appropriations Act, H.B. 76, enacted by the General Assembly this year contains language
authorizing the Department of Community Health “to submit a request to the United States Department
of Health and Human Services…for a waiver pursuant to Section 1115 of the federal Social Security Act.” 1
Section 1115 of the Social Security Act gives the Secretary of the United States Department of Health and
Human Services (HHS) authority to waive provisions of major health programs like Medicaid. Additional
changes were made to the federal Social Security Act pertaining to Medicaid by way of amendments
through the Patient Protection and Affordable Care Act of 2010 (ACA), which have led to Medicaid
expansion in other states.2 Some states that initially declined to expand Medicaid are now using Section
1115 waivers as a stepping stone to fully implement Medicaid expansion as permitted under the ACA.
For example, the state of Ohio used a Section 1115 waiver program called MetroHealth in Cleveland that
eventually effectuated full Medicaid expansion under Governor Kasich.3 From reading various reports,
there is the appearance that the Department of Community Health may be exploring a similar waiver for
the state of Georgia, which you eluded that “legislative approval would not be required for the state to
Georgia budget allows state to seek Medicaid changes. May 7, 2015, WSB-TV 2. http://www.wsbtv.com/ap/ap/georgia/georgia-budgetallows-state-to-seek-medicaid-chang/nmBwf/; Kaiser Health News. May 7, 2015. http://khn.org/news/georgia-weighs-medicaidexperiment-but-not-expansion/
2 The Kaiser Family Foundation: The ACA and Medicaid Expansion Waivers. February 17, 2015. http://kff.org/medicaid/issue-brief/the-acaand-medicaid-expansion-waivers/
3 WKYC-TV report, May 2, 2013. http://www.216brandon.com/2013/05/metrohealths-care-plus-program-leads-the-way-with-medicaidexpansion/
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submit a waiver plan to the federal government.“ 4 In addition, we also would like to point out that the
state of Florida participated in a Section 1115 waiver Medicaid pilot program that resulted in HHS
sending them a threatening letter stating they would lose existing funding for the program if they did not
move to expanding Medicaid under the ACA.5 This coercion from the federal government is not anything
new, as this was a main issue of debate in NFIB v. Sebelius. The court ruled that Medicaid expansion
“violates the Constitution by threatening States with the loss of their existing Medicaid funding if they
decline to comply with the expansion.”6 Now, Governor Rick Scott of Florida is moving to sue to
challenge this affront to the Constitution’s vertical separation of powers.7 Obtaining Section 1115
waivers can be problematic which will lead to eventual Medicaid expansion either through coercion from
the federal government or by means of political expediency, not on the merits of the policy. Therefore,
proper debate and authorization of a Section 1115 waiver must occur.
As you are aware, the General Assembly has had extensive debate on the expansion of Medicaid as
permitted under the ACA.8 We have taken the collective position that any expansion of the program
would require proper authorization. Also, pursuant to O.C.G.A 49-4-142.1, only proper authorization can
be permitted by a general act or resolution of the General Assembly to pursue a federal Section 1115
waiver. While the language in line item 81.9 of the general appropriations act (H.B. 76, FY 2016)
seemingly gives the Department of Community Health authorization to pursue a federal Section 1115
Medicaid expansion waiver, that line item has no legal consequence and does not constitute proper
authorization according to a recent opinion from the Attorney General.9 In fact, any previous identical
language that was used in prior appropriations acts that supposedly authorized the Department to
pursue these waivers also has no legal consequence.10 Therefore, any attempts or applications that have
already been submitted to HHS would be in contempt of the law and constitution of the State of Georgia.
Please see the attached Attorney General’s opinion regarding the language in line item 81.9 of this year’s
budget. Even though this language in the budget was approved by the General Assembly, “provisions of
general law may not be amended by an appropriations act.” Therefore, we the undersigned will actively
oppose and seek legal remedies to prevent efforts from the Department of Community Health to purse a
federal Section 1115 waiver without the proper consent and authorization from the General Assembly
pursuant to O.C.G.A 49-4-142.1. We have already been in contact with legal counsel to stop any such
waiver should your department proceed in pursuing additional Section 1115 waivers without proper
legislative approval.
Georgia Health News, May 14, 2015. http://www.georgiahealthnews.com/2015/05/state-studying-design-medicaid-waiver-plan/
Feds to Florida: Medicaid expansion is better use of tax dollars, April 14, 2015: http://www.saintpetersblog.com/archives/225711
6 NFIB v Sebelius: http://www.scotusblog.com/case-files/cases/national-federation-of-independent-business-v-sebelius/
7 http://www.myfloridalegal.com/newsrel.nsf/newsreleases/A0EBBC952F5C43B585257E350069FFA9
8 Georgia Health News, February 19, 2014. http://www.georgiahealthnews.com/2014/02/clash-views-numbers-medicaid-expansion/
9 Attorney General Opinion, May 22, 2015. General Counsel, Daryl Robinson. “Use of appropriations act language to confer power on agency
to act in absence of general law authorization.”. See also previous relevant Op. Att’y Gen. No. 80-118, No. 91-26, and No. 75-87. See further
limitations in GA. CONST. art III, sect. IX, ¶III.
10 H.B. 774, FY 2015 at line 883, page 29: http://www.house.ga.gov/budget/Documents/2015_FiscalYear/FY_2015_Bill_Gov_Signed.pdf;
H.B. 106, FY 2014 at line 81.8, page 52: http://www.house.ga.gov/budget/Documents/2014_FiscalYear/FY_2014_Final_Bill.pdf; H.B. 742, FY
2013 at line 1150, page 37: http://www.house.ga.gov/budget/Documents/2013_FiscalYear/FY_2013_Bill_Final_Conf_Cmte.pdf.
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May 26, 2015 Page | 2
Thank you for your consideration. Please do not hesitate to contact us for further clarification.
Most Respectfully,
Rep. Jason Spencer
District 180
Rep. David Stover
District 71
Rep. Scot Turner
District 21
Rep. Michael Caldwell
District 20
JCS
Encl:
Op. Att’y Gen. May 22, 2015 addressed to Rep. Jason Spencer
cc:
Nathan Deal, Governor
Sam Olens, Attorney General
Marial Ellis, Esq, General Counsel DCH
Lisa Marie Shekell, Legislative Affairs DCH
Rep. David Ralston, Speaker of the House
Rep. Jan Jones, Speaker Pro Tem of the House
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