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The law Republicans pushed through during a Dec. 2018 lame-duck session to thwart the power of the incoming administration of Democratic Gov. Tony Evers — which dozens of health-care entities pleaded with legislators to stop because it could have unintended consequences — now stands in the way of Wisconsin receiving federal money and other resources to fight COVID-19.

Undoing that waiver law — even temporarily during the pandemic crisis and emergency declaration — cannot happen without the approval of the Legislature. Yet the Legislature has rejected the governor’s demands that it promptly convene, waiting to put together its own expansive bill addressing broad scenarios, based on full analysis by the Fiscal Bureau of recent federal actions.

The contents of that omnibus bill — and the speed at which it passes — will have major consequences for Wisconsinites’ health, well-being and pocketbooks.

“This is the unintended consequence,” says Rep. Evan Goyke (D-Milwaukee), a JFC member. “To be honest, I doubt Republicans envisioned this happening and, in times of crisis needing greater flexibility, but that is where we find ourselves.”

The battle over Medicaid expansion

Fueling the lame-duck change signed by then-Gov. Scott Walker was a fear Republicans had that Evers would take office and get rid of work requirements for Medicaid recipients or try to expand Medicaid to receive federal dollars without Republicans being able to stop him.

After all, those were the incoming governor’s stated priorities.

So Republicans inserted legislative approval for federal waivers into what had previously been a routine process between state and federal agencies — particularly the state Department of Health Services.

Those waivers include access to Medicaid Emergency funds which have now been granted to 40 other states to receive money made available in the $2.2 trillion CARES Act recently signed into law by President Donald Trump, according to KFF. To fully access the resources and flexibility needed in an emergency, other states have already been granted more than a dozen waivers.

Goyke expresses concern that even now, Republicans may not be willing to go far enough in reversing or amending that law.

“Elected officials are universally bad at admitting when they’re wrong,” he says. “They certainly haven’t been willing to do that in the past, but this is an unprecedented time and I certainly hope that if there is anything that would grab them by the shirt collar and shake them into the reality that this was a bad idea, it would be this pandemic.”

The lame-duck law specified that the state Department of Health Services (DHS), as well as other agencies, could not seek any waivers or other changes in a broad variety of routine areas without first getting legislative approval.

“Which entity is going to be better positioned to act fast to take advantage of federal resources, the legislature or the executive branch?” Goyke asks rhetorically. “I think health systems understand and we made the argument during the lame-duck debate, that it’s the executive branch. It’s better positioned to know the interplay with federal agencies and federal resources in the stimulus bill than DHS.” He later adds: “This step now exists for Gov. Evers and it has never existed for any other governor ever.”

He says there are “dozens and dozens” of ways Republicans could thwart DHS’ ability to maximize federal money that are now available, according to his research. One example Goyke cites is access to rates of reimbursement included in the federal stimulus package as costs are rising, particularly for protective gear. “And it’s hard to predict what we’ll need in three weeks if cases triple.”

Additional waivers could be approved by the finance committee, but not until after initial legislative action, but “that still requires getting consensus from the majority party and processing the waiver through the committee, which is faster than the entire legislature, but the word ‘fast’ should never be used to describe that process,” Goyke says.

DHS asks for help

With COVID-19 cases growing exponentially, DHS Secretary-designee Andrea Palm wrote to Joint Finance Committee (JFC) co-chairs Sen. Alberta Darling and Rep. John Nygren on March 24 asking JFC to give her the ability to apply for waivers right away, stressing the urgency to “ensure that sufficient healthcare services are available.”

“We seek your partnership and cooperation in quickly convening telephonically or via paper ballot to address this urgent matter to ensure the state is able to receive flexibility to serve the people of our state during this time of emergency,” Palm wrote.

Republicans and Democrats agree that JFC does not yet have that power, and it will take action by the full Legislature to allow DHS to apply for waivers, even during a declared emergency.

On a media call on April 1, Senate Majority Leader Scott Fitzgerald (R-Juneau) and Speaker Robin Vos (R-Rochester) said they plan to convene the Legislature within the next couple of weeks, but no date has been set.

Vos said his understanding is approvals are coming “almost automatically” from the federal agencies for many waivers, once a state applies. During the press conference, Wisconsin Health News’ reporter asked if the leaders were concerned about the delay in acting on the waivers that would make it possible, among other things, to treat more patients during the crisis.

Vos responded, “I assume the waiver requests will be part of the package that we put forward, but my understanding is that we still have time to qualify for all the additional benefits that will be possible under the federal bill.”

Fitzgerald added: “I think we’re on track to take action to be able to put ourselves in a good position to deal with that issue.”

However, when asked about potentially meeting next week, Vos said he was not sure that would be possible, indicating that the Republicans are trying to pull together a package that is comprehensive and bipartisan.

“We don’t want to delay, we want to get this done as quickly as we are able to do it,” said Vos. “But we also want to be smart, because I’m looking at what other states around the country have done when they rushed out and spent a bunch of state money, and they are not sure how much of that’s going to get reimbursed from the federal government. … We’re not trying to stall or delay. Our goal is the opposite.”

One important hurdle to any legislative action is gathering legislators, either in person or virtually, under the state’s stay-at-home order.

Senate President Roger Roth held a trial run of a virtual session last week. Vos has said he prefers an in-person session day, but also wants to ensure the safety of members who are vulnerable due to age or immunity concerns. Fitzgerald said his Republican caucus has been talking “pretty much every other day just to run through a number of issues.”

Republican leaders want to craft their own omnibus bill to meet just one time, rather than work from the draft they received from Evers, similar to their process during the state budget.

Fitzgerald and Vos also said they are waiting for analysis from the Legislative Fiscal Bureau on the federal aid package.

Vos said he has had “good discussions” with Minority Leader Gordon Hintz (D-Oshkosh) about meeting and coming up with a package that would “take some of the ideas that Gov. Evers proposed in his legislation.” He added, however, “We’re still waiting to get an analysis back from the Fiscal Bureau as to all the different pieces that are in the CARES Act. We certainly want to know everything that is in the federal bill before we decide if we’re going to spend precious state resources.”

Dems push for rapid response

Evers has expressed mounting concern over the fact that weeks have gone by since he declared a state of emergency on March 12 — and has since put out two draft packages of legislation, including one that would temporarily grant waiver authority during the emergency, as well as dealing with pressing issues surrounding unemployment and other healthcare funding.

The governor gave Republicans his first bill proposal on March 21. His proposal would spend more than $700 million for the state to respond to the virus, which Republicans said was too high. He delivered a second bill draft on Wednesday that he described as containing less urgent, long-term recovery actions that would complement his first bill draft.

“Lives are on the line here, and we can’t afford being hamstrung by bureaucratic hurdles,” Evers told reporters.

But another balancing act is important to Republicans to consider as they craft legislation tied to any waiver authority during an emergency: the desire to make safety-net programs something that people do not remain dependent upon.

“A lot of things put in there were intending to help people be on the program for a short time, and then get off and hopefully get into the private sector,” said Vos. “Of course as things have been more challenging we want to make sure that safety-net programs are available to the people that need them.”

And Vos tipped his hand on one provision under discussion that Democrats might embrace:

“One of the things, I think, is we’ll get rid of any premiums so that if you are on BadgerCare you will pay nothing to go to the doctor or emergency room no matter what your care is that’s needed. I certainly understand when we do that, [even] on a short-term basis, we have to try to balance all that off.”

Sen. Jon Erpenbach (D-West Point), a JFC member and chair of the Senate’s health committee, says he sees Republicans as “not in any rush to get to the floor.”

And it’s not just a health-care crisis he wants addressed immediately, Erpenbach offers another fiscal argument, which he says is exacerbated by the Republican refusal to take additional dollars for Medicaid (a lesser step, he explains, than full expansion, which would allow Wisconsin to temporarily get more money via Medicaid.)

“Our state budget is going to have a hole in it the size of Vermont,” he says. “And if we’re not going to take the enhanced match from D.C., the question becomes how are we going to plug that hole? Are we going to cut schools? The university system?

“Any governor should be able to say in times like this, ‘We’ll take the enhanced match.’ It’s not a permanent thing, it’s just a temporary suspension. Obviously we have a problem here. Any time the word Medicaid is floated around the Capitol, Republicans’ antennas go up.”

The healthcare providers warning

During the December 2018 “lame duck” extraordinary session, the Republican-controlled Legislature passed a broad series of changes affecting Medicaid — at the time much of the discussion revolved around a work requirement for Medicaid participants who are “able-bodied” adults under age 50.

Evers had stated publicly that he was looking to get rid of such work requirements and campaigned relentlessly on the issue of expanding Medicaid and accepting federal dollars that come with the expansion.

Not wanting either to happen, and seeing an expansion as a plan that might not have federal funding into the indefinite future, the Republicans added the now-controversial step, broadly requiring legislative approval of Medicaid and many other waivers.

Politicians may not have envisioned a pandemic, but doctors, nurses, healthcare administrators and advocates foresaw such an event potentially looming on the horizon.

That led medical and insurance organizations — including Froedtert, Marshfield Clinic Health System, UW Health, Anthem, the Alliance of Health Insurers, Mayo Clinic Health System, the Medical College of Wisconsin, WPS, Aurora Health Care, the Children’s Hospital of Wisconsin and many other prominent names — to warn of unintended consequences to the lame-duck law in a Dec. 4, 2018 letter that objected to the bills.

“As organizations dedicated to high quality, affordable health care across the State of Wisconsin, we have significant concerns” with the lame duck bills “as currently written,” they wrote.

“…Together, these bills number nearly two hundred pages and make numerous changes to an already complex $9 billion Medicaid program. We have not been included in the process of developing this legislation up to this point, and with the accelerated schedule for JFC review and full floor consideration in just two days, there is simply too much in these bills to be able to accurately understand how the many different provisions will impact the State of Wisconsin and the communities we serve.”

“Again, we appreciate and respect the important role the Legislature plays in ensuring access to quality, affordable health care in Wisconsin. However, the depth and breadth of the provisions in AB 1072 and AB 1073 related to the Department of Health Services’ administration of the Medicaid program is far too complex for the expedited timetable the bills are on. We respectfully ask that those provisions be removed from the bills.”

Further details of the lame-duck law implications are elucidated in the Legislative Reference Bureau analysis of it:

“This bill generally provides for legislative oversight of requests for federal approval. The bill prohibits a state, executive branch agency from submitting a request to a federal agency for a waiver or renewal, modification, withdrawal, suspension, or termination of a waiver of federal law or rules or for authorization to implement a pilot program or demonstration project unless legislation has been enacted specifically directing the submission of the request.”

LRB research analyst Alex Rosenberg said that that the law as written applies broadly: “That approval process actually applies broadly to other types of waivers and requests to federal bodies. New waivers, renewals, withdrawals, suspensions, and terminations of waivers are all covered — as are requests for authorization to implement a pilot program or demonstration project, which are often used similarly to waivers and the state has received many federal waivers.”

That is of major concern to healthcare advocates such as Citizen Action of Wisconsin executive director Robert Kraig, who advocates that the state provide free COVID-19 treatment for the good of all Wisconsinites and to halt the spread of the virus.

“With the catastrophic failure of the federal government to effectively manage this crisis, an immense burden of responsibility to save lives has shifted to state leaders,” says Kraig. “It will cost many lives in Wisconsin if the GOP majority in the Legislature continues to obstruct the governor at every turn. In a national emergency, elected leaders must rise above normal politics, and come together to behalf of the people.”

Reprinted with permission of Wisconsin Examiner.