About that transmittal letter…

By Melissa Davlin, Idaho Reports

When Gov. Brad Little posted the transmittal letter for the Medicaid work requirements legislation, several reporters (this one included) noticed that the letter itself read like a veto. It outlined multiple issues Little had with the bill, and instructed lawmakers to continue working on the issues.

Idaho Reports did a public records request for all drafts of the transmittal letter, as well as communications regarding the letter.

Those drafts show that Little’s staff wrote the letter the day before he signed it without the key line “with my approval,” and didn’t insert that line until the morning of. Instead, an ellipsis acted as a placeholder in that sentence while Little’s staff members worked out the rest of the letter.


An April 8th draft of the Senate Bill 1204 aa, aaH transmittal letter.


That key phrase “with my approval” wasn’t added until April 9, the morning Little released his letter. In an 9:36 am e-mail, two hours before the letter was posted,  chief of staff Zach Hauge asked communications director Emily Callihan to “add language that the Governor has signed.”

Idaho governors have three options on how to handle a bill: Sign it, veto it, or let it become law without their signature. (The latter is often used to show disapproval.)

In an interview with Gov. Brad Little that aired on April 26th, Idaho Reports asked if these drafts were an indication that he hadn’t yet decided how he would handle the legislation. He said no.

“The transmittal letter means by its very nature that I’m signing the bill,” he said. “You look at every transmittal letter I wrote, I only sent a transmittal letter if I had an issue with that bill.”

Little acknowledged in both the letter and in the Idaho Reports interview the multiple issues he saw with the bill. You can read the final letter here. 

In the Idaho Reports interview, Little said he does not believe the federal government will approve all the waivers, particularly the work requirement and the copay provisions.

“Frankly, CMS and the US Department of Health and Human Services, they’re having a change of heart on some of those issues, so it’s hard to tell,” Little said.  

For the full interview, watch the April 26th episode of Idaho Reports at idahoptv.org/idreports.


Analysis: Legislature cedes rulemaking approval to Little

By Melissa Davlin

Over the last several years, the Idaho Legislature has paid closer attention to the administrative rulemaking process — a critical bureaucratic function of the government in which departments and divisions create rules that specify how certain statutes are carried out.

But in an attempt to center more power with the Legislature, the House and Senate just surrendered significant authority to Gov. Brad Little.

At the end of the 2019 session, the legislature failed to reauthorize the state’s existing rules, as they normally do every year. The reason: A fight between the House and Senate over how those rules should be approved. Currently, just one body’s vote ensures a rule is approved. The House wanted both bodies to sign off to save a rule from rejection, giving the legislature more control over the process.

Without any action from Little and his staff, all 8,000-plus pages of those administrative rules would expire at the end of the fiscal year on July 1.

Instead of calling a special session to make lawmakers finish their homework, however, Little is using his executive authority to re-up those rules. And in the process, “Governor Little ultimately will make the decision before July 1 whether to let a rule expire,” according to a Tuesday press release from his office. 

Administrative rules have the full force of law, and cover a wide range of topics — which immunizations school children need, what types of medications pharmacists are allowed to dispense, what an electrician needs to do to get a license. Common core curriculum is in administrative rules, as are the hotly debated climate change standards.

While Little has said he didn’t want this to happen, and that he doesn’t plan any major changes, he still has ultimate authority over which rules will carry over into the next fiscal year.

Agencies will also get the chance to weigh in.

“Governor Little’s administration will use the unique opportunity to allow some chapters of Idaho Administrative Code that are clearly outdated and irrelevant to expire on July 1, 2019,” the press release states. “An agency must notify the Division of Financial Management (DFM) if it identifies a rule that could be eliminated. DFM will solicit public comment on any proposed rule elimination.”

In a fight over an obscure bureaucratic process, this could either set a wild precedent for future years, or teach the legislature to finish its chores before leaving to play.


Voter initiatives and administrative rules bill DOA in Senate, Winder says

By Melissa Davlin, Idaho Reports

While the House was at ease to add in amendments to Senate Bill 1205 — changing the Senate legislation into a previously rejected House version that would force both bodies to approve administrative rules — Senate Majority Leader Chuck Winder told reporters in no uncertain terms that the amended bill was dead on arrival.

Why? First of all, the Senate had already rejected the House’s proposal about two months ago, Winder said. He also cited previous administrative rules fights, such as one over whether climate change should go into Idaho’s public school curriculum.

“In that case, I think common sense prevailed,” Winder said. He doesn’t want to give the House more authority over the rules.

Also dead on arrival? House Bill 303, which resurrects part of the previously vetoed voter initiative bill. Winder said he supports the idea of the legislation, which would require initiatives to have a fiscal note and funding source, as well as focus on a single topic. But, he said, it’s too late in the session to consider it. Expect it to come back next year.

Does the House have any recourse? They just passed their last appropriations bill — the budget for the State Board of Education — but they will have to approve the trailer bills for the Medicaid work requirements appropriations passed out of the joint budget committee on Tuesday.

In other words, this isn’t over yet. (But all signs point to sine die. And we all hope that’s the case.)


Tribal exemptions for work requirements? Arizona set the precedent.

By Melissa Davlin, Idaho Reports

In today’s Medicaid expansion debate, expect to hear more questions about why the work requirement proposal exempts members of American Indian tribes.

The issue came up in the March 21 House floor debate on expansion, with both Reps. Fred Wood and Mat Erpelding expressing concern over House Bill 277 exempting tribal members from proposed work requirements. (Though the Senate Health and Welfare Committee held 277 in committee, the Senate as a whole reconstructed it in amendments to Senate Bill 1204, which the House is amending Thursday.)

So why is the exemption in the bill? It comes down to tribal sovereignty. A 1974 Supreme Court decision, Morton v Mancari, recognizes tribes as separate political entities.

In other words, the exemption isn’t based on one’s ancestry or race. Rather, an enrollee would be exempt from work requirements only if they are a member of a federally recognized tribe. So if someone has American Indian ancestry, but they aren’t a tribal member, they would still be subject to those work requirements.

Arizona set the precedent by adding exemptions into its Medicaid work requirements for tribal members last year. In January, the Centers for Medicare and Medicaid Services approved the request, after initially saying it believed the exemption would violate equal protection laws.

According to the Associated Press, Maine and Wisconsin allow tribal members to satisfy requirements by working in tribal work programs, and Maine also exempts tribal members from paying premiums. 

In an April 3 joint letter to members of the House, representatives from Idaho’s five federally recognized tribes supported the inclusion of the exemption in Senate Bill 1204, and hinted at a lawsuit if the exemption is removed by lawmakers. “American Indian and Alaska Native populations are treated distinctly under the Affordable Care Act (ACA), which makes it appropriate for states who implement ACA programs to mirror that treatment,” the letter says. “As counsel for the tribes, we view the tribal exemption as a significant legal issue and one we would very much like to avoid if possible.”


If they opposed it, why didn’t they kill it?

By Melissa Davlin, Idaho Reports

Have some questions after House Health and Welfare sent the Medicaid requirements bill to general orders? I did too! Here are a few answers.

-Why did the five Republicans who opposed the original work requirement bill vote to send the Senate bill to general orders instead of kill it? Because there are some needed tweaks, like a waiver to use Medicaid funds to pay for mental health care, said Rep. Jarom Wagoner, vice chair of the committee. Wagoner acknowledged it’s a long shot that the House will vote for just those uncontroversial tweaks to Medicaid expansion, but it’s worth a shot, he said. Expect multiple amendments, some of which will compete with each other. 

-Is the court decision striking down work requirements on the House’s radar? Yes, said Rep. Megan Blanksma, House Majority Caucus Chairwoman and member of the committee. But, she said, she doesn’t know what will come out of those discussions. As of Wednesday’s committee meeting, the House hadn’t had a chance to caucus and examine the Senate’s amended bill.

-Will we see amendments before they hit the House floor? Only if the amendment authors choose to release them to the public and reporters. Typically, those amendments and fiscal notes are submitted directly to the House clerk, and no one sees them until the House takes them up. That said, authors can choose to share them ahead of time.



Deja vu on Medicaid hearing? Not quite.

By Melissa Davlin, Idaho Reports

It might seem like deja vu in House Health and Welfare this morning as the committee considers a Medicaid expansion sideboard bill — one that, with amendments from the Senate, is nearly identical to the House version that the Senate Health and Welfare committee voted to hold last week.

But there are key differences in this hearing. Keep a few things in mind:

  1. Five Republican members of the House Health and Welfare committee opposed the original work requirement bill when it hit the House floor: Reps. Fred Wood, Jarom Wagoner, Marc Gibbs, Laura Lickley, and Mike Kingsley. Those five had initially joined their Republican colleagues to send 277 out of committee with no recommendation, then ultimately voted against it with Republicans. Now that this is the final stop before the amended Senate bill goes to the House floor, their votes might change.
  2. Chairman Wood tells me Rep. Chad Christensen, one of the Republican committee members who voted for the bill on the House floor, is absent today, and doesn’t have a substitute. That will affect what could be a close vote. Other Republican committee members who supported the original work requirement bill: Reps. Megan Blanksma, Bryan Zollinger, John Green, and bill sponsor John Vander Woude.
  3. Just because the Senate amended the bill doesn’t mean the House can’t also amend it. Expect some competing tweaks.

Analysis: 10 percent requirement makes district-by-district efforts even more disproportionate

By Melissa Davlin, Idaho Reports

While each of Idaho’s 35 legislative districts has about 45,000 residents (at least at the time of the last US Census), the number of people who vote varies widely in those districts.

That has a big impact on voter initiative efforts — and if the governor signs Senate Bill 1159 and House Bill 296, those efforts will become even more disproportionate in some areas of the state.

The proposed changes to the voter initiative system — one of which has passed both the House and Senate — would raise the number of signatures required for a ballot initiative to 10 percent of “qualified electors” — in other words, registered voters — in 32 legislative districts. (House Bill 296 would lower that to 24 districts.)

Idaho currently requires 6 percent of qualified electors in 18 legislative districts sign a petition to get an initiative on the ballot.

During Tuesday’s Senate State Affairs hearing for House Bill 296, Senate President Pro Tem Brent Hill asked bill sponsor Sen. C. Scott Grow if Utah and other states use ten percent of registered voters, or ten percent of those who participated in the last election.

The answer: Almost all other states use turnout instead of registered voters. (Hill ultimately voted to send the bill out of committee with a do-pass recommendation.)

According to an analysis on voter initiatives by Senate intern Colin Nash, no other state requires 10 percent of registered voters.  The highest threshold, Wyoming, requires 15 percent of the number of votes cast in the last general election. 

There’s a key difference between registered voters and votes cast. Take Idaho’s 2018 election, for example, which saw record-breaking turnout throughout the state. Even with voter turnout hitting between 60 and 75 percent in most counties, there was a huge difference in those who could have voted and those who did.

Most of Idaho’s 35 legislative districts had between 8,000 and 9,000 registered voters who didn’t show up for the 2018 general election. That means Senate Bill 1159’s proposal of using 10 percent of registered voters instead of 10 percent of voters who participated in the last election would require 800 to 900 more signatures in those districts.

District 34, Sen. Hill’s eastern Idaho rural district, had the biggest difference between registered voters and turnout. If the proposal used 10 percent of voters who simply participated in the last election, signature-gatherers would need to get just 1,178 voters to sign on from Dist. 34. Under this proposal, that number of needed signatures more than doubles.


District 34 needed signatures based on 2018 voter registration and turnout.

District 27, House Speaker Scott Bedke’s rural district, had a fairly high turnout percentage, but the lowest raw numbers of both registered voters and actual votes cast in the entire state. Signature gatherers would need 1,838 voters under the current proposal, as opposed to 1,103 under the current system. 


District 27 needed signatures based on 2018 voter registration and turnout.

On the other hand, bill sponsor Sen. Grow’s District 14 — located in west Ada County — had the highest raw number of registered voters in the state, with more than twice the number of registered voters and votes cast than Bedke’s District 27.


District 14 needed signatures based on 2018 voter turnout and registration.

Under Senate Bill 1159, signature gatherers would need 2,000 more signatures in District 14 than in District 27.


Signatures needed in legislative districts 14, 27 and 34 under Senate Bill 1159 based on 2018 voter registration.

Under the current system, signature gatherers would still have to pony up more signatures in District 14 than District 27, but only about 1,200 more.