Gov. Dannel P. Malloy’s administration is seeking to eliminate legislators’ authority over certain attempts to make changes to Medicaid and other federally funded assistance programs – an authority legislators recently used to block a controversial administration proposal.
Benjamin Barnes, Malloy's budget director, said the current process isn't working, and said the proposed change would "enable us to be more effective at providing core services to the public."
But legislators said the proposal would take away critical oversight and indicated they’re unlikely to support the measure, which was included in a larger human services bill introduced on the governor’s behalf.
One key Democrat said the proposal fits into a broader theme of attempting to shift power to the executive branch. Malloy, a Democrat, has also proposed a new budgeting method that would give department heads and the governor’s budget office more latitude over spending than the more prescriptive way legislators have traditionally budgeted.
“In general, legislators this session are concerned about how important it is that they’re a co-equal branch. This would fall into that,” Sen. Beth Bye, co-chair of the Appropriations Committee, said. “We have responsibilities, and the executive branch has responsibilities, and there are really important balances there.”
The governor’s proposal involves situations in which the state seeks to make changes to how it runs Medicaid or other federal assistance programs. Medicaid and other programs are governed by a host of federal rules, but states can seek federal permission for flexibility in how they are administered to, for example, cover groups or services not generally covered. Those proposals are known as waivers. The state has 10 Medicaid waivers, some of which serve seniors, people with developmental disabilities, children with severe disabilities and people with brain injuries.
Connecticut law requires that, before applying to the federal government for a waiver or seeking to amend an existing one, the Department of Social Services must notify the legislature’s Appropriations and Human Services committees, which hold a hearing and vote on the proposal.
If the committees vote to reject a proposal, DSS can’t submit it to the federal government – effectively giving the two committees veto power. A similar process applies in cases involving certain other changes to the Medicaid program.
Malloy’s bill would repeal the committees' review and approval authority over waiver applications and amendments, and the other changes to Medicaid that are subject to a similar process.
The committees gained the approval authority in 2007. The bill providing it was vetoed by then-Gov. M. Jodi Rell, but legislators overrode her veto.
Legislators said they could only recall one case in which the authority was used to block a proposal. It happened in December, when the committees prevented DSS from seeking federal permission to outsource care management work in a waiver program that serves people with acquired brain injuries. Several legislators who opposed it raised concerns about the process behind the proposal.
Barnes said that has prevented the state from being able to extend services to people currently on a waiting list for the brain injury waiver program, since DSS' social workers are overworked and the state doesn't have the money to hire more. (Advocates for people with brain injuries have challenged the idea of linking the outsourcing proposal with the state's ability to serve more people.)
"We're getting frustrated by this process," Barnes said.
It is time-consuming and duplicative, Barnes added, since the federal government also requires states to get public input when seeking a waiver.
And the budget director said legislators have been "extraordinarily reluctant" to approve anything that might be perceived as saving money in a waiver program, even if it wouldn't affect quality, because of concerns from beneficiaries and advocates.
As for concerns about the balance of power between branches, Barnes said the proposal has nothing to do with the administration's proposed budgeting change, and noted that the committees did not have the authority before 2007.
"We've clearly had a long history of enacting waivers through legislative action and execution by the executive branch," he said. "For the legislature to say, 'Well, we don't like how the executive branch is executing the policies that we've enacted through legislation,' well, you know, they should run for governor."
Top lawmakers on the Human Services and Appropriations Committees took a different view.
Legislators have worked hard to ensure that the appropriate committees have oversight on waivers and other changes to Medicaid, said Rep. Catherine Abercrombie, co-chair of the Human Services Committee. “And at this point, I’m not inclined to give that authority back,” the Meriden Democrat said, adding that colleagues she had spoken to shared that view.
“I think that the reason why we have the oversight is that we’re the legislative branch. We’re the policy branch. We’re the ones that have to answer to our constituents,” Abercrombie said. “We can’t answer to our constituents if we don’t know what the agencies are doing.”
Sen. Joe Markley, the top Republican senator on the Human Services Committee, said he would be “very surprised” if legislators would agree to give up the authority.
“It doesn’t make sense to me as a policy change,” Markley, of Southington, said. “The very fact that these waivers have provoked so much interest and controversy would seem to me to be an argument to continue doing them in the way we’re doing, where the legislature has input and the public has input through the legislature.”
Markley said legislators support Medicaid waivers that try to save the state money, when it makes sense. “But we have to find out when exactly that’s going on and make sure that they go through all their procedures,” he said. “If the waivers make sense, the legislature’s going to be supportive, so there’s nothing for them to worry about.”
Rep. Terrie Wood, the top House Republican on the Human Services Committee, said the current process is critical.
“I think the public hearing process is vital to our democracy,” Wood, of Darien, said, adding that the proposals often affect people in situations that many lawmakers don’t have direct experience with. “It does influence, as it should, how we handle a situation, because we represent the public.”
Barnes acknowledged that it's "extraordinarily difficult" to pass legislation that eliminates the authority of the legislature, but said that when legislators gained approval authority, it took power from the executive branch. And he said he's willing to discuss a compromise.