Why did the Arkansas AG reject a proposed referendum ballot title for the Health Care Independence Act of 2013?

Plain-English summary

A sponsor asked the Arkansas Attorney General to certify a popular name and ballot title for a referendum on the Health Care Independence Act of 2013, Act 1498. Attorney General Dustin McDaniel certified the popular name, "A Referendum on the Health Care Independence Act of 2013," without changes. He rejected the ballot title because it did not give voters a sufficient account of the law they were being asked to approve or reject.

The proposed title described broad goals and parts of the private-insurance program, but the AG said it focused on rhetorical passages at the expense of substantive provisions. In particular, it did not explain the act's relationship to the federal Patient Protection and Affordable Care Act or acknowledge that Arkansas had chosen to participate, in modified form, in the expansion of health coverage. It also omitted the federal funding schedule, including exclusive federal funding for three years followed by a reduction to 90 percent by 2020.

The AG said he could revise an otherwise workable ballot title but could not create an essentially independent one for the sponsor. Because the submission left out significant provisions and did not show which features the sponsor regarded as central, he rejected it and invited a more complete resubmission.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion addressed in 2013

Referendum sponsors

The opinion required the sponsor to summarize the act's major substantive effects, including facts likely to give voters serious ground for reflection. The AG would not draft a new ballot title from scratch when the sponsor's submission did not do that work.

Voters

The certification review was meant to produce an intelligible, honest, and impartial description of the referred law. The AG found that the proposed popular name met that standard but that the ballot title omitted information needed for a fair understanding.

Election officials and ballot-measure attorneys

The opinion separated certification from the merits. Approval or rejection of a title did not express the AG's view of the policy, and the office had no authority under A.C.A. § 7-9-107 to decide whether the act would achieve its stated goals.

Common questions

Q: Did the AG reject the popular name?
A: No. He certified "A Referendum on the Health Care Independence Act of 2013" without modification.

Q: Why was the ballot title insufficient?
A: It omitted significant effects of the act, including its relationship to federal health care expansion and the federal funding schedule, while devoting space to general policy statements.

Q: Did the AG reject the measure because he opposed its health policy? A: No. The opinion expressly said certification review did not address the proposal's merits or whether it would accomplish its goals.

Q: Why did the AG not rewrite the title himself?
A: He said his substitution authority did not extend to crafting a practically independent ballot title when the sponsor had not adequately summarized the law's significant provisions.

Background and statutory framework

A.C.A. § 7-9-107 required the Attorney General to certify popular names and ballot titles before petition circulation. The opinion explained that a popular name could be shorter than a ballot title but could not mislead or add partisan coloring. A ballot title had to give voters a fair understanding, disclose essential facts, remain concise, and avoid misleading tendencies.

The opinion cited A.C.A. § 7-5-522 when discussing the need for brevity in the voting booth. It relied on Bailey v. McCuen for disclosure of essential facts and Christian Civic Action Committee v. McCuen for communicating the scope and significance of a proposed change.

The enclosed Act 1498 directed the Department of Human Services to seek federal waivers, including a waiver under 42 U.S.C. § 1315, and use premium assistance for eligible people to enroll in qualified private health plans. Those provisions were part of the substance the referendum title needed to convey fairly.

Citations and references

Statutes:

• A.C.A. § 7-9-107
• A.C.A. § 7-5-522
• 42 U.S.C. § 1315

Cases:

• Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-043

May 24, 2013

Mr. Glenn Gallas
3267 Albert Pike
Hot Springs, Arkansas 71913

Dear Mr. Gallas:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2007), of a proposed referendum measure. You previously submitted a similar measure, which this office rejected due to its failure to summarize the substance of the legislation you wish to refer to the voters. See Op. Att’y Gen. 2013-042. You have made changes in the text of your proposal since your last submission and have now submitted the following proposed popular name and ballot title for my certification:

Popular Name

A REFERENDUM ON THE HEALTH CARE INDEPENDENCE ACT OF 2013
Ballot Title

A referendum of the Health Care Independence Act of 2013 that changes the healthcare delivery system in Arkansas through alignment of payment incentives, healthcare delivery system improvements, enhanced rural health care access, and initiatives to reduce wastes, fraud and abuse. The Health Care Independence Act of 2013 includes changes in policies and plan structures and policies to advance disease prevention and health promotion.

The State of Arkansas through the Department of Human Services shall utilize a private insurance option to offer a Qualified Health Plan for “low-risk” adults. The private insurance option will be

323 CENTER STREET, SUITE 200 * LiTTLE Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 * Fax (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

Glenn

Gallas

Opinion No. 2013-043

Page 2

offered as an alternative to the existing Medicaid program for a health care delivery system. The Department of Human Services is authorized to pay premiums and supplemental cost-sharing subsidies for Qualified Health Plans for enrolled eligible individuals.

Eligibility for the private insurance plans include adults between nineteen (19) years of age and sixty-five (65) years of age with an income that is equal to or less than one hundred thirty-eight percent (138%) of the federal poverty level, including without limitation individuals who would not be eligible for Medicaid under laws and rules in effect on January 1, 2013. Qualified individuals must be a United States citizen or documented qualified alien according to the federal Personal MResponsibility and Work Opportunity Reconciliation Act of 1996.

The Arkansas State Insurance Department will offer Qualified Health Plans through the Health Insurance Marketplace. These plans will include cost sharing methods to lower the overall cost of these insurance plans such as copayments or coinsurance but not deductibles. Individuals will not be eligible if the individual is more effectively covered through the standard Medicaid program.

The Health Care Independence Act enables the creation of an “Independence account” that operates similar to a health savings account or a medical savings account. Department of Human Services shall include and transition to the Health Insurance Marketplace for Children eligible for the ARKids First Program Act and populations under Medicaid from zero percent (0%) of the federal poverty level to seventeen percent (17%) of the federal poverty level.

The Healthcare Independence Act of 2013 includes the requirement to apply and receive approval for necessary Federal waivers in order to implement The Healthcare Independence Act of 2013. Implementation of the program is conditioned upon the receipt of necessary federal approvals. The program is not a perpetual federal or state right or a guaranteed entitlement; the program is subject to

Glenn Gallas
Opinion No, 2013-043
Page 3

cancellation upon appropriate notice; and the program is not an entitlement program.

The Attorney General is required, pursuant to A.C.A. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may substitute and certify a more suitable and correct popular name and ballot title, if he can do so, or if the proposed popular name and ballot title are sufficiently misleading, may reject the entire petition. Neither certification nor rejection of a popular name and ballot title reflects my view of the merits of the proposal. This Office has been given no authority to consider the merits of any measure.

In this regard, A.C.A. § 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is “clearly contrary to law,”' this office will not require that a measure’s proponents acknowledge in the ballot title any possible constitutional infirmities. As part of my review, however, I may address constitutional concerns for consideration by the measure’s proponents.

Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposed amendment.

The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act.

The popular name is primarily a useful legislative device.’ It need not contain detailed information or include exceptions that might be required of a ballot title,

' See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. MeCuen, 310 Ark. 654, 841 S.W.2d 139 (1992),

• See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).
• Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).

Glenn Gallas
Opinion No. 2013-043
Page 4

but it must not be misleading or give partisan coloring to the merit of the proposal.’ The popular name is to be considered together with the ballot title in determining the ballot title’s sufficiency.”

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented.° According to the court, if information omitted from the ballot title is an “essential fact which would give the voter serious ground for reflection, it must be disclosed.” At the same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9- 107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522’s five minute limit in voting booths when other voters are waiting in line.® The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke.” The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring.'° A ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law.'! The ballot title must be intelligible, honest, and impartial.

Applying the above precepts, it is my conclusion that the popular name you have submitted is acceptable and it is hereby certified without modification.

4 E.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976). ; Moore v. Hall, 229 Ark, 411, 316 S.W.2d 207 (1958).

> May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).

° Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
” Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994). 8 Id. at 288, 884 S.W.2d at 944.

” Id. 293, 884 S.W.2d at 946-47.

'° Td. at 284, 884 S.W.2d at 942.

"' Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (internal quotations omitted).

"2 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).

Glenn Gallas
Opinion No. 2013-043
Page 5

With regard to the ballot title, however, as I pointed out in my response to your previous submission, it is necessary for you to at least attempt to summarize the substance of the measure you wish to refer to the people. You have failed altogether to address significant aspects of the Health Care Independence Act of 2013 (the “Act”), including, for instance, what you perceive to be its relationship to the federal Patient Protection and Affordable Care Act. Rather, you have again focused on summarizing the Act’s rhetorical passages at the expense of its substantive provisions. In the process, certain crucial considerations are simply unaddressed. To the extent, for instance, that the Act marks the state’s determination actually to participate, albeit in modified fashion, in the expansion of health care coverage that has been hotly debated on the national level, this effect must be acknowledged in the ballot title itself.

Precisely how you propose to make this acknowledgment is a matter for you to determine and to submit to this office in draft form. I am neither authorized nor inclined to undertake this effort on your behalf. You have further failed altogether to mention numerous significant provisions of the Act that a voter will need to review in order to be reasonably informed of the measure he is being asked to approve, such as the fact that the federal government will exclusively fund the program for a period of three years, with that funding to be reduced to, and to continue at, a level of 90% by 2020. Again, although I can modify a proposed ballot title to render it a more accurate summary, I am not authorized simply to craft a ballot title in what amounts to a completely independent product. Simply put, I am unable to determine what aspects of the Act you deem crucial for the voter’s consideration, and I am consequently unable to modify your submission to ensure its accuracy. Accordingly, I must again reject your submission and await any more complete ballot title you may choose to submit.

Sincerely,
We.
Attorney General
DM/cyh

Enclosures

POPULAR NAME

A REFERENDUM ON THE HEALTH CARE INDEPENDENCE ACT OF 2013

BALLOT TITLE

A referendum of The Health Care Independence Act of 2013 that changes the healthcare delivery system in Arkansas through alignment of payment incentives, healthcare delivery system improvements, enhanced rural health care access, and initiatives to reduce wastes, fraud and abuse. The Health Care Independence Act of 2013 includes changes in policies and plan structures and policies to advance disease prevention and health promotion.

The State of Arkansas through the Department of Human Services shall utilize a private insurance option to offer a Qualified Health Plan for “low-risk” adults. The private insurance option will be offered as an alternative to the existing Medicaid program for a health care delivery system. The Department of Human Services is authorized to pay premiums and supplemental cost-sharing subsidies for Qualified Health Plans for enrolled eligible individuals.

Eligibility for the private insurance plans include adults between nineteen (19) years of age and sixty-five (65) years of age with an income that is equal to or less than one hundred thirty-eight percent (138%) of the federal poverty level, including without limitation individuals who would not be eligible for Medicaid under laws and rules in effect on January 1, 2013. Qualified individuals must be a United States citizen or documented qualified alien according to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

The Arkansas State Insurance Department will offer Qualified Health Plans through the Health Insurance Marketplace. These plans will include cost sharing methods to lower the overall cost of these insurance plans such as copayments or coinsurance but not deductibles. Individuals will not be eligible if the individual is more effectively covered through the standard Medicaid program,

The Health Care Independence Act enables the creation of an “Independence account” that operates similar to a health savings account or a medical savings account. Department of Human Services shall include and transition to the Health Insurance Marketplace for Children eligible for the ARKids First Program Act and populations under Medicaid from zero percent (0%) of the federal poverty level to seventeen percent (17%) of the federal poverty level.

The Healthcare Independence Act of 2013 includes the requirement to apply and receive approval for necessary Federal waivers in order to implement The Healthcare Independence Act of 2013. Implementation of the program is conditioned upon the receipt of necessary federal approvals. The program is not a perpetual federal or state right or a guaranteed entitlement; the program is subject to cancellation upon appropriate notice; and the program is not an entitlement program.

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Stricken language would be deleted from and underlined language would be added to present law. Act 1498 of the Regular Session

State of Arkansas As Engrossed: H4/3/13 H4/6/13 H4/10/13 84/17/13 89th General Assembly ill Regular Session, 2013 HOUSE BILL 1143

By: Representatives J. Burris, Carter, Biviano

By: Senators J. Dismang, Bookout, D. Sanders, Jrvin

For An Act To Be Entitled
AN ACT CONCERNING HEALTH INSURANCE FOR CITIZENS OF
THE STATE OF ARKANSAS; TO CREATE THE HEALTH CARE
INDEPENDENCE ACT OF 2013; TO DECLARE AN EMERGENCY;
AND FOR OTHER PURPOSES.

Subtitle
TO CREATE THE HEALTH CARE INDEPENDENCE
ACT OF 2013; AND TO DECLARE AN EMERGENCY.

WHEREAS, Arkansas has historically addressed state-specific needs to achieve personal responsibility and affordable health care for its citizens such as the ARHealthNetworks partnership between the state and small

businesses; and

WHEREAS, Arkansas has initiated nationally recognized and
transformative changes in the healthcare delivery system through alignment of payment incentives, health care delivery system improvements, enhanced rural health care access, initiatives to reduce waste, fraud and abuse, policies and plan structures to encourage the proper utilization of the healthcare

system, and policies to advance disease prevention and health promotion; and WHEREAS, Arkansas is uniquely situated to serve as a laboratory of comprehensive and innovative healthcare reform that can reduce the state and

federal obligations to entitlement spending; and

WHEREAS, faced with the disruptive challenges from federal legislation

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As Engrossed: H4/3/13 H4/6/13 H4/10/13 $S4/17/13 HB1143

and regulations, the General Assembly asserts its responsibility for local control and innovation to achieve health care access, improved health care quality, reduce tradttional Medicaid enrollment, remove disincentives for

work and soctal mobility, and required cost-containment; and

WHEREAS, the General Assembly hereby creates the Health Care Independence Act of 2013;

NOW THEREFORE,
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

SECTION 1. Arkansas Code Title 20, Chapter 77, is amended to create a

new subchapter to read as follows:

Subchapter 21 — Health Care Independence Act of 2013

20-77-2101. Title.

This act shall be known and may be cited as the "Health Care

Independence Act of 2013".

20-77-2102, Legislative intent.

(a) Notwithstanding any general or specific laws to the contrary, the

Department of Human Services is to explore design options that reform the

Medicaid Program utilizing the Health Care Independence Act of 2013 so _ that

it is a fiscally sustainable, cost-effective, personally responsible, and

opportunity-driven program utilizing competitive and value-based purchasing

to:
(1) Maximize the available service options;
(2) Promote accountability, personal responsibility, and
transparency;

(3) Encourage and reward healthy outcomes and responsible

choices; and

(4) Promote efficiencies that will deliver value to the

taxpayers.
(b) (1) It is the intent of the General Assembly that the State of

Arkansas through the Department of Human Services shall utilize a private

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As Engrossed: H4/3/13 H4/6/13 H4/10/13 $4/17/13 HB1143

insurance option for “low-risk” adults.

(2) The Health Care Independence Act of 2013 shall ensure that:

(A) Private health care options increase and government-

operated programs such as Medicaid decrease; and

(B) Dectsions about the design, operation and

implementation of this option, including cost, remain within the purview of

the State of Arkansas and not with Washington, D.C.

20-77-2103. Purpose.
(a) The purpose of this subchapter is to:

(1) Improve access to quality health care;

(2) Attract insurance carriers and enhance competition in the

Arkansas insurance marketplace}

(3) Promote individually-owned health insurance;

(4) Strengthen personal responsibility through cost-sharing;

(5) Improve continuity of coverage;

(6) Reduce the size of the state-administered Medicaid program;

(7) Encourage appropriate care, including early intervention,

prevention, and wellness;

(8) Increase quality and delivery system efficiencies;

(9) Facilitate Arkansas’s continued payment innovation, delivery

system reform, and market-driven improvements;

(10) Discourage over-utilization; and

(11) Reduce waste, fraud, and abuse.

(bh) The State of Arkansas shall take an integrated and market-based

approach to covering low-income Arkansans through offering new coverage

opportunities, stimulating market competition, and offering alternatives to

the existing Medicaid program.

20-77-2104. Definitions.

As used in this subchapter:

(1) "Carrier" means a private entity certified by the State

Insurance Department and offering plans through the Health Insurance

Marketplace;

(2) "Cost sharing" means the portion of the cost of a covered

medical service that must be paid by or on behalf of eligible individuals,

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As Engrossed: H4/3/13 H4/6/13 H4/10/13 84/17/13 HB1143

consisting of copayments or coinsurance but not deductibles;

(3) "Eligible individuals" means individuals who:

(A) Are adults between nineteen (19) years of age and

sixty-five (65) years of age with an income that is equal to or less than one

hundred thirty-eight percent (138%) of the federal poverty level, including

without limitation individuals who would not be eligible for Medicaid under

laws and rules in effect on January 1, 2013;

(B) Have been authenticated to be a United States citizen

or documented qualified alien according to the federal Personal

Responsibility _and Work Opportunity Reconciliation Act of 1996, Pub. L. No.

104-193, as existing on January 1, 2013; and

(GC) Are not determined to be more effectively covered

through the standard Medicaid program, such as an individual who is

medically frail or other individuals with exceptional medical needs for whom

coverage through the Health Insurance Marketplace is determined to be

impractical, overly complex, or would undermine continuity or effectiveness

of care;
(4) "Healthcare coverage" means healthcare benefits as defined

by certification or rules, or both, promulgated by the State Insurance

Department for the Qualified Health Plans or available on the marketplace;

(5) “Health Insurance Marketplace" means the vehicle created to

help individuals, families, and small businesses in Arkansas shop for and

select health insurance coverage in a way that permits comparison of

available Qualified Health Plan based upon price, benefits, services, and

quality, regardless of the governance structure of the marketplace;

(6) "Premium" means a charge that must be paid as_a condition of

enrolling in health care coverage;

(7) "Program" means the Health Care Independence Program

established by this subchapter;

(8) "“Qualifted Health Plan" means a State Insurance Department

certified individual health insurance plan offered by a carrier through the

Health Insurance Marketplace; and

(9) “Independence account” mean individual financing structures

that operate similar to a health savings account or a medical savings

account.

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As Engrossed: H4/3/13 H4/6/13 H4/10/13 $4/17/13 HB1143

20-77-2105. Administration of the Health Care Independence Program.

(a) The Department of Human Services shall:

(1) Create and administer the Health Care Independence Program;

and

(2) (A) Submit and apply for any:

(1) Federal waivers necessary to implement the program in

a manner consistent with this subchapter, itncluding without limitation

approval for a comprehensive waiver under Section 1115 of the Social Security

Act, 42 U.S.C. § 1315; and
(11) (a) Medicaid State Plan Amendments necessary to

implement the program in a manner consistent with this subchapter.

(b) The Department of Human Services shall submit

only those Medicaid State Plan Amendments under subdiviston (a) (2) (A) (11) (a)

of this section that are optional and therefore may be revoked by the state

at its discretion.

(B) (i) As part of its actions under subdivision (a) (2) (A)

of this section, the Department of Human Services shall confirm that

employers shall not be subject to the penalties, including without limitation

an assessable payment, under Section 1513 of Pub. L. No. 111-148, as existing

on January 1, 2013, concerning shared responsibility, for employees who are

eligible individuals i1f the employees:

(a) Are enrolled in the program; and

(b) Enroll in a Qualified Health Plan through

the Health Insurance Marketplace.

(ii) If the Department of Human Services is unable

to confirm provisions under subdivision (a)(2)(B)(i) of this section, the

Program shall not be implemented.

(b) (1) Implementation of the program is conditioned upon the receipt

of necessary federal approvals,

(2) If the Department of Human Services does not receive the

necessary federal approvals, the program shall not be implemented,

(ce) The program shall include premtum assistance for eligthle

individuals to enable their enrollment in a Qualified Health Plan through the

Health Insurance Marketplace.

(d) (1) The Department of Human Services is specifically authorized to

pay premtums and supplemental cost-sharing subsidies directly to the

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As Engrossed: H4/3/13 H4/6/13 H4/10/13 84/17/13 HB1143

Qualified Health Plans for enrolled eligible individuals.

(2) The intent of the payments under subdivision (d)(1) of this

section is to increase participation and competition in the health insurance

market, intensify price pressures, and reduce costs for both publicly and

privately funded health care.

(e) To the extent allowable by law:

(1) The Department of Human Services shall pursue strategies

that promote insurance coverage of children in their parents’ or caregivers’

pian, including children eligible for the ARKids First Program Act, § 20-7/7-

1101 et _seg., commonly known as the "ARKids B program"; and

(2) Upon the receipt of necessary federal approval, during

calendar year 2015 the Department of Human Services shall include and

transition to the Health Insurance Marketplace:

(A) Children eligible for the ARKids First Program Act, §

20-77-1101 et seg.; and
(B) Populations under Medicafd from zero percent (0%) of

the federal poverty level to seventeen percent (17%) of the federal poverty

devel.
(3) The Department of Human Services shall develop and implement

a strategy to inform Medicaid recipient populations whose needs would he

reduced or better served through participation in the Health Insurance

Marketplace.

(f) The program shall include allowable cost sharing for eligible

individuals that is comparable to that for individuals in the same income

range in the private tnsurance market and is structured to enhance eligible

individuals’ investment in their health care purchasing decisions.

(2) (1) The State Insurance Department and Department of Human Services

Shall administer and promulgate rules to administer the program authorized

under this subchapter.

(2) _No less than thirty (30) days before the State Insurance

Department and Department of Human Services begin promulgating a rule under

this subchapter, the proposed rule shall be presented to the Legtslative

Council,

(h) The program authorized under this subchapter shall terminate

within one hundred twenty (120) days after a reduction in any of the

following federal medical assistance percentages:

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As Engrossed: H4/3/13 H4/6/13 H4/10/13 $4/17/13 HB1143

(1) One hundred percent (100%) in 2014, 2015,

or 2016;
(2) Ninety-five percent (95%) in 2017;

(3) Ninety-four percent (94%) in 2018;
(4) Ninety-three percent (93%) in 2019; and

(5) Ninety percent (90%) tn 2020 or any year after 2020.

(i) An eligible individual enrolled in the program shall affirmatively

acknowledge that:

(1) The program is not a perpetual federal or state right or a

guaranteed entitlement;

(2) The program is subject to cancellation upon appropriate

notice; and
(3) The program is not _an entitlement program.

(i) (1) The Department of Human Services shall develop a model and seek

from the Center for Medicare and Medicaid Services all necessary waivers and

approvals to allow non-aged, non-disabled program-eligible participants to

enroll in a program that will create and utilize Independence Accounts that

operate similar to a Health Savings Account or Medical Savings Account during

the calendar year 2015.

(2) The Independence Accounts shall:

(A) Allow a participant to purchase cost-effective high-

deductible health insurance; and

(B) Promote independence and self-sufficiency.

(3) The state shall implement cost sharing and co-pays and, as a

condition of partictpation, earnings shall exceed fifty percent (50%) of the

federal poverty level.

(4) Participants may receive rewards based on healthy living and

self-sufficiency.

(5) (A) At the end of each fiscal year, if there are funds

remaining in the account, a mafority of the state’s contribution will remain

in the participant’s control as _ a positive incentive for the responsible use

of the health care system and personal responsibility of health maintenance.

(B) Uses of the funds may include without limitation

rolling the funds tnto a private sector health savings account for the

participant according to rules promulgated by the Department of Human

Services.

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As Engrossed: H4/3/13 H4/6/13 H4/10/13 $S4/17/13 HB1143

(6) The Department of Human Services shall promulgate rules to

implement this subsection (7).

(kh) (1) State obligations for uncompensated care shall be projected,

tracked, and reported to identify potential incremental future decreases.

(2) The Department of Human Services shall recommend appropriate

adjustments to the General Assembly.

(3) Adjustments shall be made by the General Assembly as

appropriate.

(1) The Department of Human Services shall track the Hospital

Assessment Fee as defined in § 20-77-1902 and report to the General Assembly

subsequent decreases based upon reduced uncompensated care.

(m) On a quarterly basis, the Department of Human Services and the

State Insurance Department shall report to the Legislative Council or to the

Joint Budget Committee if the General Assembly is in session, available

information regarding:

(1) Program enroilment;

(2) Patient experience;

(3) Economic impact ineluding enrollment distribution;

(4) Carrier competition; and

(5) Avoided uncompensated care.

20-77-2106. Standards of healthcare coverage through the Health

Insurance Marketplace.

(a) Healthcare coverage shall be achieved through a qualified health

plan at the silver level as provided in 42 U.S.C. §§ 18022 and 180/71, as

existing on January 1, 2013, that restricts cost sharing to amounts that do

not exceed Medicaid cost-sharing limitations.

(b) (1) All participating carriers in the Health Insurance Marketplace

shall offer healthcare coverage conforming to the requirements of this

subchapter.
(2) A participating carrier in the Health Insurance Marketplace

Shall maintain a medical loss ratio of at least eighty percent (80%) for an

individual and small group market policy and at least eighty-five percent

(85%) for a large group market policy as required under Pub. L. No. 111-148,

as existing on January 1, 2013,

(ec) To assure price competitive choice among healthcare coverage

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options, the State Insurance Department shall assure that at least two (2)

qualified health plans are offered in each county in the state.

(d) Health insurance carriers offering health care coverage for

Program eligible individuals shall participate itn Arkansas Payment

Improvement Initiatives including:

(1) Assignment of primary care clinician;

(2) Support for patient-centered medical home; and

(3) Access of clinical performance data for providers.

(e) On or before July 1, 2013, the State Insurance Department shall

implement through certification requirements, rule, or both the applicable

provisions of this subchapter.

20-77-2107. Enrollment.

(a) The General Assembly shall assure that _ a mechanism within the

Health Insurance Marketplace is established and operated to facilitate

enrollment of eligible itndividuals.

(b) The enrollment mechanism shal] inelude an automatic verification

system to guard against waste, fraud, and abuse in the program.

20-77-2108. Effective date.
This subchapter shall be in effect until June 30, 2017, unless amended

or extended by the General Assembly.

SECTION 2, Arkansas Code Title 19, Chapter 5, Subchapter Il, is amended to add an additional section to read as follows:

19-5-1140. Health Care Independence Program Trust Fund.

(a) There is created on the books of the Treasurer of State, the

Auditor of State, and the Chief Fiscal Officer of the State a trust fund to

be known as the “Health Care Independence Program Trust Fund”.

(b) (1) The Health Care Independence Program Trust Fund may consist of

moneys saved and accrued under the Health Care Independence Act of 2013, §

20-77-2101 et seq., including without limitation:

(A) Increases in premtum tax collections;

(B) Reductions in uncompensated care; and

(C) Other spending reductions resulting from the Health

Care Independence Act of 2013, 20-77-2101 et seq.

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(2) The fund shall also consist of other revenues and funds

authorized by law.

(c) The fund may be used by the Department of Human Services to pav

for future obligations under the Health Care Independence Program created by

the Health Care Independence Act of 2013, § 20-77-2101 et seq.

SECTION 3. NOT TO BE CODIFIED. (a) The implementation of this act is

suspended until an appropriation for the implementation of this act 1s passed

by_a three-fourths vote of both houses of the Eitghty-Ninth General Assembly.

(b) If an appropriation for the implementation of this act ts

not passed by the Fighty-Ninth General Assembly, this act is void.

SECTION 4. NOT TO BE CODIFIED. The enactment and adoption of this act

shal] supersede Section 21] of HBI2Z19 of the Fighty-Ninth General Assembly, if

Section 21 of HB1I219 of the Eighty-Ninth General Assembly is enacted and

adopted,

SECTION 5. EMERGENCY CLAUSE. It is found and determined by the

General Assembly of the State of Arkansas that the Health Care Independence

Program requires private insurance companies to create, present to the

Department of Human Services for approval, implement, and market _a new kind

of insurance policy; and that the private insurance companies need certainty

about the law creating the Health Care Independence Program before fully

investing time, funds, personnel, and other resources to the development of

the new insurance policies. Therefore, an emergency is declared to exist,

and this act being immediately necessary for the preservation of the public

peace, health, and safety shall become effective on:

(1) The date of its approval by the Governor;

(2) If the bill ts netther approved nor vetoed by the Governor,

the expiration of the period of time during which the Governor may veto the

bill; or
(3) If the bill is vetoed by the Governor and the veto is

overridden, the date the last house overrides the veto.

/s/J, Burris
APPROVED: 04/23/2013

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