How governor, legislators can control parts of the Medicaid process
For the most part, governors need the support of their Legislatures to opt into the ACA's expansion. However, the nuances vary by state.
Who has the power to change eligibility? According to Kathleen Nolan, director of state policy and programs at the National Association of Medicaid Directors, states can establish their eligibility levels through their Medicaid statutes—which would likely require legislative approval to change—or through the regulatory process, which the governor can control.
Who can accept federal funds? Meanwhile, not all state executives have spending authority for federal Medicaid funds, Nolan says. And although some governors have the authority to draw down federal Medicaid dollars, it's unclear if they can draw down Medicaid expansion dollars. So even if the governor can expand Medicaid eligibility levels, he or she might not be able to accept the ACA funding for that expansion.
Are there other roadblocks? It may technically be possible in some states to expand eligibility and accept the funds without the support of the Legislature, but a whole host of issues would make it really complicated. For instance, a governor who went against the Legislature to expand Medicaid might not be able to expand the administrative budget for Medicaid without legislative approval, according to DLA Piper policy advisor Krista Drobac. "It's pretty tough to add all these people to your [Medicaid] rolls without more administrative money," she says.
So how did Kasich expand without the Ohio Legislature?
In Ohio, Kasich used the state's Controlling Board to get past the Legislature on the technical requirements for expansion. The board dates back to 1917, although its current structure was established in 1969. It is tasked with handling "certain limited day-to-day adjustments needed in the state budget."
"The fact that Kasich had this panel that he could creatively take advantage of is not going to work in every state," Drobac says.
And don't forget: Expansion is moving forward in Ohio, but it's not quite a done deal. Republican lawmakers in the state have already filed suit against the Controlling Board's decision to approve the expansion. They argue that the move exceed the board's lawful authority.
'Holdout' states where the governor supports expansion
The three governors who have supported expanding their states' Medicaid programs but have not yet done so because of legislative roadblocks are Florida's Rick Scott (R), Missouri's Jay Nixon (D), and New Hampshire's Maggie Hassan (D).
It is not likely that any of the three governors will pull a Kasich-like move ; they will probably need to convince their Legislatures if they hope to move forward on Medicaid expansion. But, there's still the possibility for expansion in those states—just maybe not on Jan. 1.
Scott—a longtime opponent of the ACA—surprised many when he announced his support for expansion in February, but the state Legislature promptly dashed the governor's hopes. There are no special sessions or commissions scheduled this year to further explore the issue, so it looks unlikely that Florida will expand Medicaid this year.
But the door is not closed for the future; HHS has made it clear that states can opt into expansion at any time.
According to St. Louis Today, Nixon has been accused of exceeding his authority on budget decisions in the past, but the National Conference of State Legislatures' Joshua Ewing says that Missouri does not have an oversight board that could allow him to expand without legislative approval.
However, expansion is possible next year, when legislators plan to attempt Medicaid reform in the state.
>> New Hampshire.
Hassan may be able to get the support of her Legislature in time for 2014 expansion. On Nov. 7, a special session will convene to consider the issue, and leaders of the GOP-controlled state Senate are optimistic about reaching a deal to expand the program.
A bipartisan panel set up by the Legislature already has recommended that the state opt into the ACA provision.
'Holdout' states where the governor does not support expansion
Of course, Florida, Missouri, and New Hampshire are not the only "holdout" states that could still opt into the ACA's Medicaid expansion. Experts like Judith Solomon, vice president for health policy at the Center on Budget and Policy Priorities, argue that it's "just a matter of time" before Republican governors change their minds.
We've definitely seen that trend begin to take hold: A handful of GOP governors—including Arizona's Jan Brewer and New Jersey's Chris Christie—have supported the ACA's Medicaid provision and successfully moved forward in their states.
But at least 15 governors still refuse to opt in—and time is running out to say yes to a Medicaid expansion that starts on Jan. 1. Some governors that have refused to expand Medicaid have floated the idea of establishing an alternate expansion model, like the one in Arkansas. However, the approval process for such proposals takes time, which could prevent those states from implementing an alternate model by the Jan. 1 rollout.
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