This week, Caldwell’s office issued an opinion stating that changes being made to the benefit packages had to have gone through the Administrative Procedure Act, upon the request by Edwards. The changes in most cases likely would have the overall effect of increasing payments made by clients, due to changes in deductibles, co-payments, and services covered. Using this process for this matter has not been done in the past, and no one ever had complained about it.
The Gov. Bobby Jindal Administration, with good reason, disputes the idea that the APA should apply to these kinds of decisions, but a creative reading of the law possibly could shoehorn in decisions made about services disbursed to a class of active and former government agents distinct from the public, especially in the case of the retirees. It’s a reach and if Caldwell had not wanted it to succeed, there was ample basis on which to reject that line of reasoning. But by issuing it under his imprimatur, the controversy could continue that could benefit certain parties politically.
Out of caution, the Jindal Administration has submitted the batch of changes in the form of a rule, but the legalities are such that through the regular process the earliest a rule could take effect would be Jan. 18, 2105, beyond the Jan. 1 plan year start date. Between now and then, the Division of Administration would have to collect comments before the end of November, the relevant legislative committees could review the rule in December and determine whether to accept it, and in January Jindal could decide whether to accept a negative decision or to overrule it and allow promulgation.
Which, if it came to legislative disapproval, he certainly would overrule, so it’s a foregone conclusion that the changes will go into effect. Additionally, it even can go into effect on Jan. 1 if near the end of December DOA declares the changes in effect as part of an emergency rule. These may be promulgated with instant effect for at least up to a month while a review process commences, and historically the parameters of these have been pretty broad (where DOA could fairly convincingly argue that this qualifies because it avoids putting into deficit a “medical assistance program,” or the provision of insurance to the OGB clients or that to continue at the old levels would threaten to take money from other such programs to create deficits). There is a process by which legislative committees could act quickly enough to disapprove, even though Jindal would override, or outside interests could sue to have a state court declare this not defined as an “emergency,” but by then the regular rule would have come into effect.
So the practical import of the opinion, if somebody were to challenge the existing changes on the basis of APA violation and a court agrees to null these changes, is zero. Other than creating a precedent for all future changes, if left unchallenged (for an unsuccessful court challenge would negate the opinion’s effect on future DOA actions in this regard) the benefit changes will go through and can go through on schedule, although with the wasting resources in sorting out the conflict.
But that doesn’t mean the citizenry’s loss isn’t anybody’s gain. Edwards wins because it brings him attention and makes it appear that he’s on the side of the ratepayers involved. Even if it’s inevitable, he gets credit for trying, and that could turn into votes next year. The same goes for Caldwell, who of the statewide elected executives running for reelection is by far facing the most serious challenge, from former Rep. Jeff Landry.
However, it’s possible Edwards and Caldwell may have miscalculated politically here. Ultimately, taxpayers and ratepayers are responsible for ensuring for the funding the disbursement of benefits. This could be turned around onto them in more or less direct ways. What if next year, just a couple of months prior to the election, the state announces rate increases and specifically notes benefit changes are off the table precisely because of the fuss kicked up this year, where Edwards very visibly led with his chin? Enterprising opponents of theirs can take it from there, explicitly connecting Edwards and Caldwell to poor and politicized policy-making decisions that triggered the increase.
And they will get no sympathy from the majority of the state, the members of the taxpaying public whose earnings allow the program clients to pay extremely below-market rates (typically the state covers 75 percent of the bill, and often that much for retirees) for coverage better than the “platinum” plans under the Patient Protection and Affordable Care Act. It would not be difficult to paint Edwards and Caldwell as protectors of a special interest whose average total compensation, in part because of the luxuriousness of the health insurance program, is significantly higher than the typical private sector employee’s, or who gets part, if not most, of its health care insurance paid when retired when the typical private sector retirement package does not offer to do that – on the taxpayer dime.
In any event, recognize that this entire sequence of events (Edwards, who successfully agitated for a gripe session of the Legislature to be called about the changes meeting today, may have been politically adroit enough to plan ahead on this as part of a larger campaign scheme by asking for the opinion right after the Sep. 10 deadline for publication of a rule in the State Register had elapsed, in order to try to mess up the implementation date) was designed not really to change anything, but to score campaign points at the cost of needless use of state resources. Whether the officials involved succeed on that account is another matter.