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Stable for Now, TennCare Demands Future Attention

Gov. Phil Bredesen has no illusions about the longterm manageability of TennCare, saying this week, “I think the stuff we did with TennCare bought the state a decade but not more than that.”

The governor’s take on the state’s version of the Medicaid program may come as a surprise to those who assumed TennCare’s major problems were over as a result of major reductions Bredesen made in the program that slowed what had become a runaway train.

But Bredesen, now nearing the end of his term, said the fundamental issues involving health coverage remain.

Apart from the cost pressures already involved in health care, another enormous storm is headed the state’s way with the expansion of Medicaid in the new federal Patient Protection and Affordable Care Act, the law that has become known, for better or worse, as ObamaCare.

Bredesen famously referred to the expansion of Medicaid as “the mother of all unfunded mandates” on states when the bill was being debated in Congress. Now that the bill has become law, Bredesen has taken a different tack, basically saying it’s the law and must be followed, somehow.

Yet through all the concern about what the future holds on the state health care program, for the moment a consensus appears to have formed that the current leadership at TennCare has adroitly managed the operation. Bredesen says so, and so do some people currently running for Bredesen’s job.

“I think one of the issues the new governor is going to have to deal with is basically how do you deal with Medicaid,” Bredesen said. “You know my feelings about using Medicaid as part of President Obama’s expansion. I don’t think it’s the right thing to do. I think it will put a huge amount of pressure on states in the future.

“But that’s something the governor’s got to do. It’s done. It’s the law. It’s over. It’s something the future governor is going to have to deal with.”

The new law calls for establishing health insurance “exchanges,” which will serve as a government-regulated marketplace for buying health insurance. While some aspects of the law have a more immediate impact — such as helping fill the “doughnut hole” in coverage of the Medicare prescription drug plan or extending coverage of children under their parents’ plans until age 26 (due to go into effect in September) — the bulk of the law is scheduled to kick in in 2014.

The time delay has given some who dislike the law an expectation that the law can be changed, so its full impact won’t be known for awhile. But as it stands, the burden will be falling on states to figure out how to follow through on the new law.

“This is not something the federal government can execute. They’re going to need the states to set up the exchanges,” Bredesen said. “Obviously a lot of new people will be coming into Medicaid, and that produces a whole bunch of issues, from rates we’re paying to physicians to other things. So I think there is a whole set of things to be dealt with in terms of implementing the act.”

Bredesen feels good about TennCare’s current leadership, which includes director Darin Gordon.

“We have some good expertise in the state right now, particularly in the form of Darin and his staff over there,” Bredesen said. “I think we’ll get through it but that’s going to take a lot of work.”

One of the candidates for governor, U.S. Rep. Zach Wamp, a Republican from Chattanooga, said this week he, too, is impressed with TennCare’s current leadership, and Wamp gives Bredesen credit for managing the state budget in broad terms, as well as specifically on TennCare.

“Darin Gordon has done an excellent job,” Wamp said. “In fact, the last 24 months at TennCare the program is trending better than it has at any time in its existence. When I had my full briefing with him and asked a slew of questions, I was highly impressed. I think they’re focusing now on more preventive care and wellness, which is something I’m really strong on.

“Frankly, short of the Obama mandate kicking in, I believe TennCare is going in a good direction, but if the Obama mandate kicks in without some relief, if we can’t change that, TennCare is going to get buried with federal mandates. We don’t have the money to pay for those mandates.”

The days of total upheaval at TennCare seem to have subsided, for now.

“We’ve got a good team at TennCare now. It’s been stable,” Bredesen said. “They know what they’re doing. They’re doing a good job. They’re making their budgets. In fact they’re helping us solve some of our other budgets. But that’s going to be a real issue.”

Bredesen was elected in 2002 in great part on his perceived management skills, just as TennCare was spiraling out of control. A key report by consultant McKinsey & Company showed TennCare putting the state on a path to financial ruin. Bredesen responded by cutting more than 170,000 people from the TennCare rolls in 2005. He also put limits on the amount of prescription medications that would be covered, a politically controversial move.

Now, the concern has become that with strides made over a number of years, Medicaid expansion in the new federal law threatens to wipe out previous gains.

Bredesen’s point, as he moves through his final year in office, is that while the state bought time with its changes, the problem of health care costs has not been solved. The new governor will find that waiting for him.

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State Sovereignty Supporter Pushes Federal Mandate in TN Legislature

Earlier this year, Republican state Rep. Debra Young Maggart co-sponsored a resolution demanding that the federal government refrain from further burdening Tennessee with unwarranted and potentially unconstitutional policy mandates.

But earlier this month, Rep. Maggart and Sen. Diane Black, R-Gallatin, expressed their interest in legislatively obligating the State of Tennessee to embrace an as-yet unfulfilled federal mandate, signed by George W. Bush, that critics say violates just the sort of constitutional principles lawmakers like Maggart saw fit to reiterate in their state sovereignty resolution last session.

The federal mandate at issue here is part of the Adam Walsh Child Protection Safety Act of 2006 (pdf). Among other things, it demands harsher treatment of juveniles found guilty of committing sex crimes — in particular, by posting youthful offenders’ pictures, names, birthdays and addresses online.

“The adoption of this legislation would put Tennessee into compliance with the requirements for juveniles to be placed on state’s Sex Offender Registries under the Adam Walsh Act which was scheduled to go into effect in 2009,” according to a press release issued Dec. 7 by Maggart and Black. “Tennessee was awarded over $50 million in Byrne Grant funding last year, 10 percent of which could be in jeopardy unless the state adheres to these requirements.”

Failing to abide by the Act could result in a loss of state law enforcement subsidies of $750,000 to $940,000 next year, the Tennessee Office of Criminal Justice Programs reports.

“Is it a mandate? Yes,” said Maggart.

But she sees little in her past advocacy for the sovereignty resolution — combined with her support now for the Bush-era federal mandate — to indicate she’s guilty of a political double standard.

“I know we need this money,” Maggart told TNReport.com. “It is a mandate, but again, it is what we’re operating under, and I think that we should have uniform laws on sex offenders across the country because sex offenders are really clever.”

The Tennessee sovereignty resolution, House Joint Resolution 108 (pdf), was really meant to ward off unfunded mandates such as government-run health care or expansions of education programs, Maggart said. It wasn’t necessarily intended to label all the federal government’s directives to the states as bad.

“I just think they’re two different animals,” she said. Of the federal health legislation under consideration in Congress right now, Maggart said, “The costs are going to be out of this world.”

“But keeping sex offenders out of our community where they can prey on our children,” she added, “is a completely different thing.”

Michael Hough, a public safety specialist for the Washington D.C.-based American Legislative Exchange Council, said that elements of the Walsh Act, particularly the juvenile offender provisions, were upsetting to state lawmakers, many of them conservatives, from around the country who gathered in Atlanta last summer to discuss the law.

“Everyone basically agreed that parts of the law were very good, but — as happens a lot when the federal government passes things — they don’t really understand what’s going to happen when it is put out in the states.” said Hough, whose organization tends to promote state-level, small-government, market-oriented policy solutions.

Hough said many lawmakers complained of the costs associated with implementing much of the Walsh Act — that they’re in fact even higher than the potential Byrne grant cuts that would result from noncompliance.

Likewise, the National Conference of State Legislatures has stated that the Walsh Act works to “preempt many state laws and create an unfunded mandate for states.”

The Act was also found unconstitutional in April 2008 by a U.S. District Court judge in Florida, who declared that under the general reasoning inherent in the Walsh Act, “virtually all criminal activity would be subject to the power of the federal government.”

“Surely our founding fathers did not contemplate such a broad view of federalism,” wrote the judge.

His opinion was later overturned on appeal by the Eleventh Circuit Court of Appeals, which said the provisions of the United States Constitution allowing for regulation of interstate commerce permitted Congress to pass laws that “track those offenders who move from jurisdiction to jurisdiction.”

To date, only Ohio has adopted the Walsh Act, and currently it is under review in the state supreme court.

“This is not about kids playing doctor when they’re 10 years old,” said Maggart. “The needs of the community to be protected by a 16-year-old that’s a rapist, it outweighs everything.”

But Nashville defense attorney Brent Horst, himself a former sex-crimes prosecutor in Florida, said situations where children “playing doctor” crosses a line could result in an individual being publicly labeled as a heinous sort of criminal for decades.

“No one wants to be soft on sex offenders,” said Horst, but requiring that juvenile offenders be added to the adult registry is an “incredibly stupid, unfair and unjust” idea. It could end up subjecting a “a poor kid who’s just a normal teenager experimenting with his sexuality” to years of societal contempt, he said.

“It’s all about the (federal) money,” Horst added.

If approved by both chambers and OK’d by the governor, the new law would require juvenile offenders to register if they have been found guilty of crimes such as rape, aggravated sexual battery, aggravated rape, rape of a child, aggravated rape of a child or an attempt to commit of those crimes.

Juveniles convicted as adults under Tennessee law must already register with the sex offender website.

Maggart, who, like Sen. Black, is from Sumner County, was the No. 2 co-sponsor of the HJR108 sovereignty resolution. A very popular measure, it passed 85-2 in the House and 31-0 in the Senate. Black didn’t appear to vote on the legilsation.

HJR108 reaffirmed Tennessee’s claim as a self-governing jurisdictional entity in keeping with the Tenth Amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

HJR108 also lamented that while “the federal government was created by the states specifically to be an agent of the states…today, in 2009, the states are demonstrably treated as agents of the federal government.”

Similar measures were enacted in several other states, but on June 23 Phil Bredesen put pen to paper and made Tennessee’s the first such resolution in the country signed by a governor.

The resolution’s chief sponsor last spring, Rep. Susan Lynn, R-Mt. Juliet, says she tends to agree with Maggart — that the Hendersonville Republican’s effort to list juveniles on public sex offender electronic bulletin boards is more an effort to improve public safety in Tennessee than an attempt to suck up to Washington, D.C.

“This would be a Tennessee law to put juveniles on a sex offender registry,” said Lynn, who supports the bill. “It would happen to be coincidence, as far as I’m concerned, that the federal government is mandating this.”