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,” DRGNews.com, 2020.12.11].
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].
“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:
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.