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GOVERNOR McDONNELL will HAVE TO call a SPECIAL SESSION to STOP MEDICAID EXPANSION or CUCCINELLI will have to PERSUADE the GOP members of the REFORM COMMISSION to say NO!

This blog started to try to help Del. Chris Peace.  I am not sure it will do so.  Might stir up a hornet’s nest like I did last Monday!  But here it goes:

There was a charge made (I prefer not to say where) that Delegate Peace voted for the Medicaid expansion.  (That charge has been renounced in the interim by the maker.)  I decided to contact Del. Peace and he said he did not vote for Medicaid expansion.  He voted against the tax increase; he voted for the omnibus budget.  Del. Peace also said there had been no up or down vote on Medicaid expansion and he could not speak to what a future legislature – or governor – could do at a later date.  He also said this Reform Commission was to place a limit on that future governor.  I was initially horrified; did I slander the governor?

But within the state budget are these words:

6.a. The Department shall seek the approval of the Medicaid Innovation and Reform Commission to amend the State Plan for Medicaid Assistance under Title XIX of the Social Security Act, and any waivers thereof, to implement coverage for newly eligible individuals pursuant to 42 U.S.C. § 1396d(y)(1)[2010] of the Patient Protection and Affordable Care Act. If the Medicaid Innovation and Reform Commission determines that the conditions in paragraphs 2, 3, 4, and 5 have been met, then the Commission shall approve implementation of coverage for newly eligible individuals pursuant to 42 U.S.C. § 1396d(y)(1)[2010] of the Patient Protection and Affordable Care Act.

b. Upon approval by the Medicaid Innovation and Reform Commission, the department shall implement the provisions in paragraph 6.a. of this item by July 1, 2014, or as soon as feasible thereafter.

7.a. Contingent upon the expansion of eligibility in paragraph 6.a., there is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Health Reform and Innovation Fund, hereafter referred to as the “Fund.” The Fund shall be established on the books of the Comptroller and any moneys remaining in the Fund at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. For purposes of the Comptroller’s preliminary and final annual reports required by § 2.2-813, however, all deposits to and disbursements from the Fund shall be accounted for as part of the general fund of the state treasury.  (Emphasis added)

Now 42 USC Section 1396(y)(1) is the Medicaid expansion in the Obamacare bill.  Now this budget language seems to say that if the Reform Commission approves certain conditions that the Medicaid expansion will be approved.  This kind of language reminds me of the line in Mr. Smith Goes to Washington where Senator Payne says something to the effect that he’s a lawyer and can’t understand half of the stuff in these bills!  And that was 1939!  There are significant constitutional concerns about this kind of legislative delegations but I am not sure enough to know what is going on.  I can be proven wrong and I gladly hope so!  But lawyers understand the word “shall” as a command:  You must do it!

Now Delegate Peace is right:  He did not vote up or down on Medicaid expansion.  But he did vote for the budget.  Now voting for the budget is not a clear vote for the Medicaid expansion in that the budget has the monies for education, public safety, roads etc.  I would not have voted for the budget with this language on it.  I also would have tried to amend it out.  That is probably why Del. Peace is a respected member of the House of Delegates and I am not!  I also can say that Del. Peace has my strong support.  I can also say that Medicaid expansion is wrong:  It turns Medicaid into an entitlement program.  Del. Peace called Medicaid growth “unsustainable” when he spoke with me.  I cannot imagine how Medicaid expansion helps the goal of making Medicaid sustainable.  But it is unfair to say Del. Peace voted for the Medicaid expansion.

So technically Delegate Peace is right.  But so is Susan Stimpson.  We must stop Medicaid expansion in VA!  Hence, either the governor needs to call a special session to cancel this Medicaid expansion or AG Cuccinelli needs to persuade the Reform Commission to say NO!  This could save Cuccinelli’s campaign from the rise of Sarvis!  He needs to publicly persuade either the Commission to deny Medicaid expansion or persuade the governor to call a one day special session to stop Medicaid expansion in Virginia.


About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

2 Responses to “GOVERNOR McDONNELL will HAVE TO call a SPECIAL SESSION to STOP MEDICAID EXPANSION or CUCCINELLI will have to PERSUADE the GOP members of the REFORM COMMISSION to say NO!”

  1. Rico says:

    Can the members of the Reform Commission be replaced by the new governor?

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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