Trying to Make Sense of a Mediocre Deal

Charlie Arlinghaus

June 4, 2014

As originally published in the New Hampshire Union Leader

The brokered deal on the Medicaid Enhancement Tax and lawsuit is a partial solution to an imperfect situation that will require difficult choices but it may still be the right choice to make. The complexity of the tax and the schemes surrounding it make evaluating and understanding the tax, the choices, and the possibilities difficult but let’s give it a try.

The Medicaid Enhancement Tax (or MET) was a convoluted scheme developed in 1991 to borrow from the hospitals and leverage money from the federal government at no cost to the hospitals. In the first decades it wasn’t a real tax, it had no cost to hospitals, and was something they could hardly refuse to go along with. It took almost 20 years but the folly of trusting a money hungry government finally hit them like a 2×4 to the face.

The no-cost favor hospitals did the government had created a structure to collect hundreds of millions of dollars. In 2009, the government took some money off the top. In 2011, hospitals were hit with a de facto tax increase of $250 million. When your taxes go up that much, you take action.

The hospitals stopped being cooperative doormats, hired good lawyers, and – despite the famous lyrical prediction to the contrary – fought the law and the law lost.

That put the government in an odd spot. If they took no action, about $370 million for the current budget would either not be collected or refunded while only $50 million of spending would go away.

Your perspective on what should happen next might depend on your thoughts about the lawsuit. If you believed the state’s appeal of the decision would be successful, you might not think any action necessary but few believed such a thing. Most people – and this includes me – believe that the tax would remain unconstitutional and there would be a $320 million budget hole.

This put hospitals in the driver’s seat. They were willing to negotiate a settlement that included more money for the state but insisted in exchange on some reversal of the earlier $250 million tax hike. There is no possible settlement that will not create a spending problem of some sort.

Theoretically, the tax was always collected to fund uncompensated care (largely free charity care that hospitals provide low income patients) and for Medicaid underpayment. Remember that Medicaid is not the government paying for health care. It is the government paying about a third to a half of what private insurance pays the same provider for the same service and expecting the provider to eat the rest of the cost. In theory, the MET is to help cover some of those underpayments.

The current proposed plan mandates that a minimum portion of the tax collected to fund uncompensated care actually does so and that those payments are made proportional to charity and Medicaid care actually provided. Even after we made a fake tax a real tax, some money went to such payments but that amount will probably rise by $125 million – half of which would be paid by the federal government.

There is a substantial difference between how much we will collect and how much we will return to hospitals. The remainder must be used – as it is used now voluntarily – to support regular Medicaid provider payments which we have to make either way. That additional amount can be thought of as the portion of the scheme that is a real tax. That amount is likely to be around $80-100 million less in the next budget than it is today. That’s a big hole but it’s after the election so politicians are happy.

The precise language of the law is being tweaked to eliminate drafting errors and some inconsistencies so it is a bit of a moving target. To make matters worse, there is not yet a fiscal note attached to the bill that is publicly available. I remain convinced that no legislation should be passed that does not include a fiscal note – the official financial analysis – that is available to the public for a week before the vote.

All that having been said, something has to be done or the state will have a huge financial hole. If lawmakers are confident the State would win an appeal to the Supreme Court, they might vote against this incomplete agreement. However, I think the state would lose an appeal and so do most lawyers I know. In the battle between a crap shoot and a beat up used car, the jalopy wins.