Legislative Updates - 23 February 2015

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Dear Friends:

This week, we feel that some “Medicaid Expansion” proposals, that are under consideration by Utah’s Legislature, deserve some special attention.  The Medicaid expansion proposals considered in this update all propose, not only to expand Medicaid in Utah, but to do so with lots of federal funds (tens, even hundreds of millions of dollars per year).

We believe that certain questions about the proper role of government should be raised as we consider the various proposals to expand Medicaid in Utah:  What is the proper role of government?  Is providing of health care a proper role of our national government? of our state government?  Do the same moral standards that apply to us as individuals apply to our government?

What is the proper role of government?  This is a moral question—and a very important one, given that government wields force in ways that few other institutions do . . . and given that improper use of force can damage people’s lives, liberty, and property.

A traditional American view, and one to which we subscribe at Utah GrassRoots, is that government is properly an agent of the people, ordained by the people.  This view is enshrined in the Preamble to The Constitution of the United States:  “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.”  If We the People ordain the government, it would seem that we can only give government authority that we ourselves have . . . and that moral authority is limited especially when it comes to the use of force.

This view, that the government’s authority to use force is limited, is dominant in the Constitution of the United States, as reflected in the powers of Congress that are enumerated in Article I, Section 8 of that document.  James Madison wrote:  “The powers delegated by the proposed Constitution to the Federal Government, are few and defined” (Federalist No. 45, Paragraph 9).  Alexander Hamilton further wrote:

"The plan of the convention declares that the power of congress or in other words of the national legislature, shall extend to certain enumerated cases.  This specification of particulars evidently excludes all pretension to a general legislative authority; because an affirmative grant of special powers would be absurd as well as useless, if a general authority was intended" (Federalist No. 83, Paragraph 7).

Provision of health care is not enumerated in Article I, Section 8 of our national constitution, and, therefore, appears to us to be a usurped power.  As a state, we should be nervous about enabling, encouraging, and participating in such exercise of usurped national power—an exercise that greatly contributes to heavy taxes and to a heavy, growing burden of debt—not only for ourselves, but also for our children.

Is provision of health care a proper role of state government?  This question may not be answered quite as clearly by our state constitution, though some might say that use of tax-dollars for redistribution to health-care consumers is contrary to our Declaration of Rights:  “Private property shall not be taken or damaged for public use without just compensation” (Utah State Constitution, Article I, Section 22).

Should we help the poor, and those in need of health care?  Most of us would probably agree that the answer is “Yes.”  But by what means?  By force?  Would it be right for Steve Stromness or Don Guymon to forcibly take money from a neighbor and use it to pay someone else’s health care bill.  We do not think it would be right for us to use force in this manner . . . and we would therefore consider it wrong to instruct our agent (the state government) to do this for us.

We may not always agree on the answers to all questions of morality.  Nevertheless, we humbly submit our judgment that “charity” by force does not feel right to us, and is not a legitimate subject for delegation to our agents, our state and national governments.  We would encourage each of our readers to consider what is and is not rightful use of force for him or her as an individual.  Your judgment may or may not agree with ours.  But we hope most would agree that the same moral standards that apply to us as individuals, should also be applied to our agents in the various levels and departments of government.

Now, here are some bills proposing to expand Medicaid in Utah.  GrassRoots opposes all four of these bills.

HB307, “Medicaid Expansion Provisions”, sponsored by Representative Spendlove, would authorize the Utah Department of Health and the governor to extend Medicaid benefits:

 
• to an individual who is below 100% of the federal poverty level;
• if the Medicaid benefit package offered to the newly eligible is the current Medicaid benefit package; and
• if the department gets the maximum federal match rate for the Medicaid expansion.

This bill:

• authorizes the Utah Department of Health and the governor to extend Medicaid benefits:
• to an individual who is below 100% of the federal poverty level;
• if the Medicaid benefit package offered to the newly eligible is the current     Medicaid benefit package; and
• if the department gets the maximum federal match rate for the Medicaid expansion.

The Fiscal Note for this bill estimates that HB307 would bring about additional expenditures as follows:

• in Fiscal Year (FY) 2016:  $235 million, which would be more than paid for out of federally funding; and
• in FY 2017:  $289 million, which would be more than paid for out of federally funding.

Of course, these are only estimates; there is the question of how many of those who would be eligible to enroll for Medicaid under HB307 would actually enroll.  The Fiscal Note states that “If everyone eligible enrolled for Medicaid under enactment of this bill, total costs could increase for Medicaid by an estimated . . . $485 million in FY 2016 and $570 million in FY 2017.  By FY 2021 the total cost increase could be around $760 million. In FY 2017 costs to the General Fund could be $3.8 million. By FY 2021 the bill's General Fund cost could be an estimated $65 million.”  In any case, the lion’s share of the cost of HB307 is envisioned to be federally funded.

            HB307 awaits action by the House Rules Committee.

            GrassRoots favors a “no” vote on HB307.

SB83, “Medicaid Expansion Proposal”, sponsored by Senator Davis, would:

• require the Department of Health to amend the state Medicaid plan to expand Medicaid eligibility to the optional populations under the Patient Protection and Affordable Care Act;
• require the General Fund savings associated with Medicaid expansion to be deposited into the Medicaid Growth Reduction and Budget Stabilization Account to be used to fund the future costs of Medicaid expansion;
• repeal a provision requiring the governor to comply with certain requirements before expanding Medicaid; and
• provide that Medicaid expansion is repealed if federal funding decreases from the Patient Protection and Affordable Care Act funding rates.

The Fiscal Note for this bill estimates that SB83 would bring about additional expenditures as follows:

• in FY 2016:  $344 million, all of which would be federally funded; and
• in FY 2017:  $449 million, practically all of which would be federally funded.

Again, these are only estimates; there is again that question of how many of those who would be eligible to enroll for Medicaid under SB83 would actually enroll.  The Fiscal Note states that “If everyone eligible enrolled for Medicaid under enactment of this bill, total costs could increase for Medicaid by an estimated . . . $745 million in FY 2016 and $940 million in FY 2017. By FY 2021 the total cost increase could be around $1,310 million. In FY 2017 costs to the General Fund could be $10.0 million. By FY 2021 the bill's General Fund cost could be an estimated $115 million.”  In any case, the lion’s share of the cost of SB83 is envisioned to be federally funded.

SB83 awaits consideration by the Senate Health and Human Services Committee.

GrassRoots favors a “no” vote on SB83.

SB153, “Access to Health Care”, sponsored by Senator Allen Christensen, would:

• extend access to health care to individuals not currently eligible for Medicaid who are:  (a) below 100% of the federal poverty level; (b) medically frail; (c) uninsured; and (d) vulnerable to becoming disabled; and
• instruct the Utah Department of Health to obtain from the Centers for Medicare and Medicaid Services within the United States Department of Health and Human Services waivers from federal law necessary to implement the coverage for the medically frail.

The Fiscal Note for this bill estimates that SB153 would bring about additional expenditures as follows:

• in Fiscal Year (FY) 2016:  $53 million, of which $16 million is funded by the state of Utah and $37 million is federally funded; and
• in FY 2017:  $65 million, of which $20 million is funded by the state of Utah and $45 million is federally funded.

Again, these are only estimates; there is again the question of how many of those who would be eligible to enroll for Medicaid under SB153 would actually enroll.  The Fiscal Note states that “If everyone eligible enrolled for Medicaid under enactment of this bill, total costs could increase for Medicaid by an estimated $155 million in FY 2016. . . .”

SB153 passed the Senate Health and Human Services Committee 4-2 on February 17th, and awaits consideration by the full Senate.

GrassRoots favors a “no” vote on SB153.

*SB164, “Access to Health Care Amendments”, sponsored by Senator Shiozawa, would:

• authorize the Department of Health and the governor to negotiate a waiver to the state Medicaid program to provide access to health care to certain individuals in the state;
• require a legislative review of the Medicaid waiver in three years, regarding:  (a) the percentage of participants employed, in training, or participating in a work search program; (b) program enrollment categorized by employer sponsored plans, premium assistance, and medically exempt; and (c) annual cost per enrollee;
• require approval by the Legislature if the Center for Medicare and Medicaid Services changes the waiver conditions approved by the Legislature in this bill;
• sunset the Medicaid waiver in five years; and
• immediately repeal the Medicaid waiver if federal fund participation is reduced below a certain level.

The Fiscal Note for this bill estimates that SB164 would bring about additional expenditures as follows:

• in FY 2016:  $340 million, which would be more than paid for out of federally funding; and
• in FY 2017:  $463 million, of which $1 million would be funded by the state of Utah and $462 million would be federally funded.

Again, these are only estimates; there is again that question of how many of those who would be eligible to enroll for Medicaid under SB164 would actually enroll.  The Fiscal Note states that “If everyone eligible enrolled for Medicaid under enactment of this bill, total costs could increase for Medicaid by an estimated . . . $760 million in FY 2016 and $965 million in FY 2017. By FY 2020 the total cost increase could be around $1,235 million. In FY 2017 costs to the General Fund could be $12.1 million. By FY 2020 the bill's General Fund cost could be an estimated $90 million.”  In any case, the lion’s share of the cost of SB164 is envisioned to be federally funded.

SB164 passed the Senate Health and Human Services Committee 4-1 on February 11th, and awaits consideration by the full Senate.

GrassRoots favors a “no” vote on SB164.

It is understandable that our representatives might want to take advantage of federal funds that may be there “for the taking” if only the state applies to the national government for the needed waivers.  The amount of money that might be brought to our state appears to be substantial.  Still, it seems wrong to encourage such spending by our national government.

Another proper question to raise:  What is the effect on Utah’s sovereignty, or power of self-government, when Utah accepts funds from the national government?  Former United States Secretary of Agriculture Ezra Taft Benson expressed the opinion that “[N]o State or local government can accept funds from the Federal and remain independent in performing its functions, nor can the citizens exercise their rights of self-government under such conditions”(speech entitled “The Proper Role of Government”).  Was Mr. Benson correct?  To us, it seems the evidence clearly indicates that he was correct; in case after case, it seems that state governments are succumbing to the temptation to spend tax-dollars inappropriately because of the lure of, or strings attached to, federal funding.

(It may be with this principle in mind that HJR17, “Proposal to Amend Utah Constitution -- Limit on Federal Funds”, sponsored by Representative Spendlove, would propose to amend the Utah State Constitution to specify that “The amount of money the State receives from the federal government in any fiscal year may not exceed 40 percent of the State's total expenditures for that year.”  HJR17 awaits consideration by the House Revenue and Taxation Committee.  GrassRoots is not taking a position on HJR17 at this time.  While there may be benefits to limiting federal funding to no more than 40% of state government expenditures, we are also hesitant to advocate anything, especially in our state constitution, that might condone 39%, or 30%, or even 10% of state government expenditures coming from federal funding.)

And here is one more bill (not related to Medicaid expansion) that has caught our attention:

HB167, “Asset Forfeiture Revisions”, sponsored by Representative Greene, would:

• require that a criminal charge be brought regarding conduct that has a direct nexus to the seized property in order to continue holding the seized property, and that a conviction be obtained for the conduct for a civil forfeiture procedure (new proposed language in HB167 is as follows:  “A finding that property has been used in the commission of criminal activity or is the proceeds of criminal activity requires a criminal conviction regarding the conduct giving rise to forfeiture of the property”);
• modify the elements of qualifying as an innocent owner regarding property subject to forfeiture, so that an owner who has no intent of committing or assisting criminal behavior qualifies as an innocent owner;
• require a direct nexus of the property to a specific criminal exchange or transaction, in order for the property to be forfeited (HB167 proposes to delete vague (forfeiture-facilitating) language from current statute that “A finding that property is the proceeds of conduct giving cause for forfeiture does not require proof that the property was the proceeds of any particular exchange or transaction”); and
• require the prosecutor to bring an action for civil forfeiture within 30 days after the conviction for the offense, or the property shall be released to the claimant.

 This bill:

• requires that a criminal charge be brought regarding conduct that has a direct nexus
• to the seized property in order to hold the property, and that a conviction be obtained for the conduct for a civil forfeiture procedure;
• modifies the elements of qualifying as an innocent owner regarding property subject to forfeiture;
• requires a direct nexus of the property to a specific criminal exchange or transaction, in order for the property to be forfeited;
• provides the procedure for a person who claims ownership of property to petition for return of the property;
• requires the prosecutor to bring an action for civil forfeiture within 30 days after the conviction for the offense, or the property shall be released to the claimant; and
• modifies the obligations of a claimant regarding illegal use of the property subject to forfeiture.

HB167 awaits consideration by the House Law Enforcement and Criminal Justice Committee.

Forfeiture of property from innocent owners is a ghastly violation of the constitutional requirement that “No person shall be deprived of life, liberty, or property without due process of law” (Utah State Constitution, Article I, Section 7; United States Constitution, Fifth Amendment).  Heavy burdens often placed on property owners to prove their innocence, as are common to much of modern forfeiture statute, are contrary to our great American legal tradition of assuming people to be “innocent until proven guilty.”  HB167 would soundly move us in the right direction on these two common problems with forfeiture.  GrassRoots favors a “yes” vote on HB167.

And here are updates on bills mentioned in earlier GrassRoots updates:

HB41Substitute, “Local Economic Development Amendments”, sponsored by Representative Snow and Senator Okerlund, would streamline/reduce the notice and public hearing requirements prerequisite to amending or adopting certain “community development project area plans” under which special tax treatment is given to (politically) favored businesses and industries.

The Senate-amended version of HB41Substitute passed the Senate 26-1 on February 13th, and the House 58-7 on February 17th, and awaits consideration by the Governor.

HB41Substitute would appear to facilitate the creation of tax increment incentives (special tax treatment for favored businesses and industries).  GrassRoots still opposes HB41Substitute, and would favor a veto by the Governor.

HB163, “Student Data Breach Requirements”, sponsored by Representative Knotwell and Senator Adams, would require an “education entity” to “notify the parent or guardian of a student if there is a release of the student's personally identifiable student data due to a security breach.”

HB163 passed House 71-0 on February 12th, and the Senate Education Committee 5-0 on February 18th, and awaits consideration by the full Senate.

GrassRoots still favors a “yes” vote on HB163.

HB193, “Continuing Education for General Contractor Licensing”, sponsored by Representative Gibson, would end continuing education requirements for certain contractor licensees.

HB193 passed the House 72-1 on February 11th, and the Senate 2nd reading 22-2 on February 19th, and awaits consideration on the Senate 3rd reading calendar.

HB193 would be a welcome (even if small) loosening of government licensing requirements.  GrassRoots still favors a “yes” vote on HB193.

HB281, “Revisions to Elections Law”, sponsored by Representative Fred Cox and Senator Jenkins, would have continued to allow the caucus/convention system that has existed for years to continue through the 2016 primary elections, in spite of SB54 of the 2014 General Legislative Session (hereafter “2014-SB54”).  (2014-SB54 prescribed that a “qualified political party” must allow certain candidates to appear as its candidates on a primary ballot, regardless of the results of its caucus/convention process.)  Under HB281, the most controversial provisions of 2014-SB54 would not have become effective until 2017.

HB281 failed the House Government Operations Committee 3-6 on February 17th, and is probably dead for this session.  However, a similar or identical bill, SB43Substitute, “Closed Primary Amendments”, sponsored by Senator Jenkins and Representative Anderegg, still appears to alive in the Senate, where its Government Operations and Political Subdivisions Committee gave it a favorable recommendation.

Government interference in the workings of a political party, to prescribe who will be that party’s candidate(s), is unwarranted.  HB281 would have at least delayed such interference for another election cycle.  GrassRoots still favors a “yes” vote on HB281 (and on the similar or identical SB43Substitute).

SJR6, “Joint Resolution Urging Congress to Support Equity and Sales Tax Fairness,” sponsored by Senator Harper and Representative Eliason, would urge Congress to pass, without delay, federal legislation for the fair and constitutional collection of state and local sales and use taxes.

SJR6 passed the Senate 25-0 on February 20th, and awaits action (probably assignment to a standing committee) in the House.

GrassRoots still favors a “no” vote on SJR6.

If you have any questions about these bills, GrassRoots’ position on these bills, or related matters, please contact either of us or any other member of the Board of Utah GrassRoots.

Sincerely,

Steve Stromness
Board Member, Bill Review Coordinator, Utah GrassRoots
steven.stromness@gmail.com
435-637-5248

Don Guymon
Chairman, Utah GrassRoots
donguymon@gmail.com
801-574-9461

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