News: CJ Exclusives

Medicaid expansion? Not quite dead, former NCGA counsel suggests

Former General Assembly special counsel Gerry Cohen at a March 4, 2019, meeting of the State Board of Elections. (CJ photo by Dan Way)
Former General Assembly special counsel Gerry Cohen at a March 4, 2019, meeting of the State Board of Elections. (CJ photo by Dan Way)

Reports of Medicaid expansion’s death in this legislative session might be greatly exaggerated.

At least that’s the view of Gerry Cohen, former special counsel to the General Assembly, who thinks a possible procedural faux pas by freshman Sen. Kirk deViere, D-Cumberland, wasn’t a fatal flub.

DeViere offered an amendment Wednesday, March 13, to add roughly 600,000 people to state Medicaid rolls during floor debate on unrelated legislation, Senate Bill 86, the Small Business Healthcare Act. His amendment was tabled on a party-line 28-20 vote.

Critics immediately suggested deViere committed a blunder that killed any opportunity the remainder of this two-year legislative session for Democrats to achieve a top party goal of broadening Medicaid eligibility.

At issue is Senate Rule 53, which states: “After an amendment has been tabled or defeated on the Senate floor, the contents of such amendment or the principal provisions of its subject matter shall not be embodied in any other measure” unless three-fifths of members present vote in favor of bringing it back up.

DeViere’s amendment had the same language as House Bill 5 and identical companion Senate Bill 3. Republicans hold the Senate majority, and have consistently opposed Medicaid expansion. Now they have a procedural tool to prevent Medicaid expansion from even coming up in that chamber.

Neither deViere nor Senate Minority Leader Dan Blue, D-Wake, responded to requests for comment.

“It is correct that the amendment having been tabled means that the Senate can’t consider another bill like that,” Cohen said. But Senate rules don’t prevent the House from passing its own standalone Medicaid expansion bill, or adding a Medicaid expansion provision when they consider a Senate-passed bill.

However, when those types of bills crossed over to the Senate they could be ruled out of order there and returned to the House.

Democrats’ Rule 53 plight may not be particularly relevant because Senate Republicans never were going to let either H.B. 5 or S.B. 3 get out of committee anyway, Cohen said.

“There’s plenty of other ways you could do a Medicaid expansion that are significantly different than deViere’s amendment,” he said.

Cohen thinks Medicaid expansion would be done through the budget process or not at all.

“And the budget is full of all sorts of crap that violates all sorts of rules,” he said. “It always is.”

If Senate leader Phil Berger, R-Rockingham; House Speaker Tim Moore, R-Cleveland; Senate Minority Leader Dan Blue, D-Wake; House Minority Leader Darren Jackson, D-Wake; and Gov. Roy Cooper agreed on a conference report that contained some form of Medicaid expansion compromise imperative to gain budget passage, Berger would be unlikely to object on a procedural matter, Cohen said.