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Hospitals Propose Duplicate Medicaid Expansion Amendment, Despite Active Petition Available Now

The big players in health care in South Dakota have decided that they are ready to buck South Dakota’s one-party regime and help put Medicaid expansion to a public vote. They agree with research (lots of research) and observers not blinded by Obama Derangement Syndrome or Kristi Noem‘s 2024 earrings that expanding Medicaid would do lots of good for South Dakotans:

“Our members are very committed to ensuring every South Dakotan has access to affordable healthcare, and that includes expanding Medicaid,” said Tim Rave, President and CEO of the South Dakota Association of Healthcare Organizations. “This initiative will deliver healthcare to hardworking South Dakotans, keep rural hospitals open, and boost our economy” [Jody Heemstra, “Broad Coalition Forms to Pursue Medicaid Expansion Ballot Measure in South Dakota,”, 2020.12.11].

But strangely, they aren’t backing the initiative petition that Dakotans  for Health is circulating right now. Strangely, these friends of health care are launching a separate petition drive:

A broad coalition of patient advocates, nurses, hospitals and grassroots organizations is advancing a 2022 ballot measure effort to expand Medicaid in South Dakota.

The group, which includes the American Cancer Society Cancer Action Network, AARP South Dakota, Avera Health, Community HealthCare Association of the Dakotas, Great Plains Tribal Leaders Health Board, Monument Health, Sanford Health, South Dakota Association of Healthcare Organizations, South Dakota Farmers Union, South Dakota Medical Association and South Dakota Nurses Association, recently formed a ballot committee called South Dakotans Decide Healthcare. The group has already submitted ballot language to the Attorney General for review [Heemstra, 2020.12.11].

Doug Sombke, Farmers Union… hey! Didn’t he just say he was “all in” with the Dakotans for Health petition drive?

“This should have been done long ago when the Affordable Care Act (ACA) was passed in 2010,” said Doug Sombke, SDFU President. “South Dakota has the highest percentage of uninsured low income adults (18-65) in the entire nation. Reforming Medicaid is not only the right thing to do, it is also good economics. It will shore up our ailing rural healthcare systems and help our rural economy. The Farmers Union is all in and committed to do whatever it takes to get this important measure before the voters in November of 2022” [Dakotans for Health, press release, 2020.11.12].

Hmmm… Farmers Union and the hospitals want to petition Medicaid expansion onto the 2022 ballot. Dakotans for Health has a bus with plenty of room that can take us all there right now. But instead of taking that bus, the hospitals and their pals want to take another bus that isn’t even built yet and won’t be out of the garage until February at the earliest (and given how distracted the Attorney General is right now taking phone calls, I’m pretty sure he’ll take the maximum 60 days to review the new petition). To give up three months of signature-gathering during a pandemic that makes petitioning extraordinarily difficult is an enormous and potentially fatal error.

To sacrifice the three-month advantage Dakotans for Health has, when they could be out recruiting grassroots volunteers and putting them to work immediately collecting petition signatures, the hospitals must have come up with a gangbusters-better initiative petition. But take a look at South Dakotans Decide Healthcare’s draft petition alongside Dakotans for Health’s approved and active petition, and you may struggle to find any clear advantage of their language over the petition Dakotans for Health is circulating now:

South Dakotans Decide Healthcare, draft amendment language, revised by Legislative Research Council, 2020.11.19.
South Dakotans Decide Healthcare, draft amendment language, revised by Legislative Research Council, 2020.11.19. Plain text is SDDH original draft language; red insertions and overstrikes are by LRC.
Dakotans for Health, initiated amendment, initiative petition, approved by Secretary of State Steve Barnett 2020.11.02.
Dakotans for Health, final amendment language, initiative petition, approved by Secretary of State Steve Barnett 2020.11.02.

The hospitals through SDDH are proposing a constitutional amendment, just like Dakotans for Health. Petitions to amend the South Dakota Constitution require twice the signatures of petitions for initiated laws (33,921 versus 16,961). So the hospitals are taking the same approach as Dakotans for Health, figuring that they need to write Medicaid expansion into the Constitution to insulate it from Legislative undoing. But the hospitals are also taking on the same doubled signature burden and the same persuasive burden of convincing voters we need to tinker with the Constitution instead of just passing a law. So the new petition has no advantage there.

The hospitals’ draft language is about 80% longer than D4H’s approved and active petition (my rough pre-breakfast count from these damnable scanned and thus not searchable or countable shows 270 words SDDH versus 150 D4H). Both are still short compared to some of the measures we’ve seen petitioned and approved. But in general, the longer the petition, the less signers and voters like it. So no advantage for the new draft amendment on length.

In substance, the hospitals’ draft amendment differs little from D4H’s active amendment petition. Both measures expand Medicaid to all adults in South Dakota making up to 133% of the poverty level. The SDDH measure includes language about the confusing extra five percent for applicable family size, but since D4H’s amendment says its eligibility will be determined “as provided by federal law,” as long as the feds apply the Affordable Care Act to expand Medicaid to an effective income threshold of 138%, the D4H amendment appears to achieve the same effective goal.

Both measures prohibit the state from adding any extra requirements or restrictions on eligible South Dakotans or somehow shorting their benefits.

Both measures share a timeframe problem. The hospitals call for the state to submit its plan for Medicaid expansion to the feds on March 1, 2023. D4H calls for that submission to take place within 90 days of voter approval, which would set the deadline at February 8, 2023. But either measure approved at the 2022 election would by law [SDCL 2-1-12] not take effect until July 1, 2023. Ballot questions can’t make anything happen until they are enacted, so under current law, neither measure gets underway until seven and a half months after the election. Those pre-July 1 submission dates are really good advice, because both amendments require the state to provide those Medicaid benefits to those newly eligible recipients the day those amendments take effect, so just as Governor Noem is proposing budget action now to prepare for the marijuana amendment that doesn’t kick in until next July 1, the state would want to spend November 2022 through June 2023 preparing to implement the Medicaid expansion that would take effect on July 1, 2023. But again, SDDH’s draft amendment offers no practical advantage over D4H’s active petition.

The hospitals do explicitly state that their amendment would go into effect “Beginning July 1, 2023,” but amendments don’t need an implementation date. Amendments take effect when the law says they do. The only way an issue could arise with the implementation date is if the Legislature decides in 2021, 2022, or 2023 to revoke its relatively recent and legally questionable intrusion in the initiative process with its unnecessary delay of the implementation of voter-approved measures and let ballot questions default back to enactment immediately upon the canvass of the general election ballots, in mid-November. If the Legislature did us that favor, D4H’s active petition would actually have the advantage, as it would launch right away in November, while the hospitals’ measure would still lollygag about, much like the hospitals are right now with their petition drive, until summer.

Beyond the absence of any clear substantive difference, the hospitals commit an error that could make their amendment more vulnerable to court challenges than D4H’s amendment. Scroll through Governor Noem‘s current crafty court challenge to Amendment A, the cannabis amendment. Supporting the Governor’s amendment-versus-revision argument is the contention that Amendment A wreaks a “fundamental alteration to the structure of the Constitution and the powers afforded to each respective branch of government.” This allegedly radical alteration lies in Amendment A’s granting of “exclusive power” to regulate marijuana commerce to the Department of Revenue, which Noem’s lawyers contend breaches the “separate powers afforded to the legislative and executive branches of our government under the Constitution.”

The hospitals’ draft amendment grants exclusive authority to the Department of Social Services, part of the executive branch, to “promulgate any rules necessary to implement this section.” The LRC advises the hospitals to strike that line and copy D4H’s language saying “The Legislature shall provide by law any provisions necessary to implement this section.”

D4H’s petition has been public since summer. The hospitals’ people surely have lunch every now and then with Kristi Noem’s people and particularly her high-priced Sioux Falls lawyers. They are keenly aware that Governor Noem opposed Medicaid expansion, and they are now keenly aware of the legal arguments she will use to challenge any initiative she doesn’t like. In the context of this knowledge, the hospitals have time to heed LRC’s advice and produce a better draft, but their initial draft distinguishes itself from D4H’s active petition only with this arguable legal flaw, not with any clear substantive policy advantage.

With no clear policy advantage in their draft amendment, we can only speculate why the hospitals and other health care organizations would want to burn up time and effort on a copycat petition instead of rallying their members and friends and neighbors to sign a petition right now that achieves their shared goals. But voters, don’t sweat those motives. Just focus on good policy. Expanding Medicaid will save lives and save money. The way to save those lives and save that money is to put Medicaid expansion on the ballot. Right now, there is a petition on the streets to do just that. If you see that petition, sign it. If next summer the hospitals bring you a second petition, sign that one, too. You can sign more than one petition.

But for Pete’s sake, if you’re hungry, and someone puts a ham sandwich on your plate, don’t wait for your neighbor to come make a second ham sandwich. Your neighbor could get distracted, trip on a rake, who knows what. Eat the sandwich on your plate! Take action now, and sign (or even help circulate!) the real, live petition to put Medicaid expansion to a vote in 2022.


  1. grudznick 2020-12-12 11:32

    Maybe this gives two chances, Mr. H, which is better than one. But then again, maybe this pisses off the public who are angry with meddlers in the constitution.

  2. Mark Anderson 2020-12-12 12:02

    I believe the pubs like the idea of bake sales to support health care, just don’t ask them to wear a mask. They do love those pies as long as they aren’t gubbermint pies.

  3. bearcreekbat 2020-12-12 18:20

    Both petitions seek to amend the State Constitution because of the recent history indicating that the State legislature has no qualms about rejecting voter passed initiatives. And as Cory further points out, it appears that even these Constitutional Amendments are threatened by particular Republicans elected by a majority of South Dakota voters.

    This history seems to have started with the legislative dismantling of the voter initiated ethics provisions a short time ago. The Republican dismantling of this voter initated law was open and notorious, thus every voter in the State was exposed to news about these shenanigans.

    This raises the question: When a substantial majority of South Dakota voters witness Republicans that they have previously elected take apart the very law this same majority voted for, then why in the world did enough members of this majority turn around and re-elect many, or even most, of the very same individuals that publicly undermined the majority’s initiative?

    There seems to be a major disconnect here. Wouldn’t it be a simpler solution for a majority of South Dakota voters to elect candidates that respect the expressed will of this same majority of South Dakotans, than to try to stop such mischief by using initiated State Constitutional Amendments? If a majority of voters is smart enough to support initiated laws and constitional amendments, then that same majority, ipso facto, must be smart enough to recognize those Republican candidates and elected officials that spit in the face of that same majority. I simply don’t get it.

  4. Bob Newland 2020-12-12 19:25

    Once again, grudzfeke, the sxctsucker, posts a comment worth less than this one.

  5. jerry 2020-12-12 19:38

    Let’s face it, a BRIBE is the only thing this majority of South Dakota voters really stand behind. Pay them a BRIBE and they will do anything for it, even give away democracy. I think there will be so much confusion on these two similar initiatives that they will gum up the works and nothing will get done yet again. Well played hospitals.

  6. Richard Schriever 2020-12-13 05:26

    bcb – The simplest solution would be for the majority of voters to pass a simple one-subject, one sentence constitutional amendment prohibiting their elected legislators from meddling with the voters’ passed initiated measures.

  7. V 2020-12-13 06:16

    Bear with me here.

    I worked on a citizen committee for several years to get a walking trail along the Missouri River. Members came and went and with frustration and lack of interest from the city council, the committee disbanded. Two years later, a local physician and wealthy business owner picked up the project and made a go of it. Now we have a beautiful paved 1.5 mile trail that is landscaped, well kept, and well used.

    Moral of the story….Those of us who wanted the trail and use the trail are mere taxpayers who have no names, no influence and no voice. Just like with Medicare expansion. Where as those who have clout, doctors and businessmen, do get attention from the status quo. As authors of the petition, their influence may sway voters more than ordinary citizens can.

  8. Donald Pay 2020-12-13 09:52

    V is correct. It is unfortunate, but a reality that good ideas that bubble up from the rabble often need the spark that the “better sort” of people can give to pushing that idea through. On our environmental work in the 1980s and 1990s we found the most success when we reached out to everyone.

    At the beginning of the mining fight I was one who was reluctant to join because the wealthy seemed to be the most concerned. They had ski chalets near Terry Peak and had concerns mining would spoil their property values. But I thought they had political ins to the Janklow Administration, why did they need us to help them? Well, I was wrong. You find your allies on whatever street they live.

  9. Cory Allen Heidelberger Post author | 2020-12-13 10:01

    V, that’s not a bad point. The hospitals would appear to have more clout than the grassroots… but does their language warrant that clout? By my read, they could more easily put their clout behind the existing petition, which appears to achieve the same ends. Ultimately, don’t we get more clout with signers and voters if we unite all organizations instead of creating an unnecessary division?

  10. bearcreekbat 2020-12-13 10:02

    Interesting concept Richard. Perhaps one solution is a repeal of just this one existing sentence in Article 3, § 1 of the existing Constitution describing legislative power pertaining to Initiative and referendum:

    This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure.

    Such a repeal, or the adoption of affirmative language, would be a safeguard against both newly elected and re-elected officials messing with voter initiatives. The issue I struggle with is slightly different.

    For a majority of voters to support and elect a candidate with a history of sticking it to this same majority of voters seems irrational, absent unique circumstances.

    While it is understandable that there will always be a minority of voters that can be manipulated into voting against their interest, how in the world have a majority of South Dakota voters been convinced to engage in such irrational behavior? Indeed, if a majority of voters are really that easily manipulated, or worse yet just plain stupid, it would seem that rational people would want to preserve the power of the legislature to amend or repeal potentially damaging irrational initiatives adopted by that manipuated majority.

  11. grudznick 2020-12-13 10:14

    Mr. bat is righter than right when he points out how the pernicious measure initiated as number 22, sloppily written by out-of-state special-interests, wrecked things for the rest of us. In a flashback rant this morning, I will open the Conservatives with Common Sense breakfast using just that topic.

  12. grudznick 2020-12-13 10:18

    Reality is that those with clout get more done than those without clout. Always been that way. Always will be that way. This is not some Star Trek socialist universe. Clout wins. Klaudt loses.

  13. Donald Pay 2020-12-13 13:20

    Well, Grudz, it ain’t as simple as toting up clouts and deciding the winner.. The clouts, I found, pretty much had no idea how to fight if they couldn’t sweet talk the power center into their position. The only tool in their tool box was political contributions, and the foreign mining companies had no money for groundwater reclamation, but plenty for political bribes. Thus, the clouts relied on us to fight in ways they weren’t tough enough to do. The doctors were good at forking over money, but not so good for standing up and fighting.

  14. Drey Samuelson 2020-12-14 05:09

    What an interesting exchange! I do believe there is merit to Richard Schriever’s suggestion: “The simplest solution would be for the majority of voters to pass a simple one-subject, one sentence constitutional amendment prohibiting their elected legislators from meddling with the voters’ passed initiated measures.” Actually, some states (North Dakota being one, I believe, prohibits their legislature from repealing (or even adjusting) laws that have been the result of successful ballot initiatives for a period of a year or two, and it would be great if some group formed to promote such an initiative (we would still have IM 22, in my opinion).

    Second, I thought Don Pay’s account of his work on environmental issues when he was living in SD was interesting, and how the folks with clout often had no clue how to get things done if their use of their influence was sufficient to carry the day… Clout probably trumps Klaudt on a 1-1 basis, but Clout loses badly to 100 highly motivated Klaudts!

    And, I’d just like to state my opinion that, whether people realized it or not (and I’m sure some did), it was a very sad day for South Dakota when Don Pay moved away. If we had 10 Don Pays here now, the state would be in much better shape…

  15. Donald Pay 2020-12-14 16:07

    That was nice, Drey, but not deserved. It was always an effort of a large number of South Dakotans, many of whom are still there. I took the baton and ran my leg in the race. I always think that the biggest failure we had was dropping the baton before passing it on to others, and that includes you and Cory.

  16. Drey Samuelson 2020-12-14 16:36

    Don–well, that’s a very modest response… Yes, of course, there were a good number of South Dakotans working with you, as well, but it takes someone to lead them and that’s what you did, very effectively. –Drey

  17. Porter Lansing 2021-11-09 12:48

    “The new petition has no advantage there.” – CAH
    Let me “Big Bird” it, for you.
    Heidelberger is against the new petition.
    Enough said to assure swift insertion on the ballot.

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