Opinion No. 2013-054

June 11, 2013

Mr. Glenn Gallas
3267 Albert Pike
Hot Springs, Arkansas 71913

Dear Mr. Gallas:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2007), of a proposed referendum measure. You previously submitted two similar measures, which this office rejected due to your failure to summarize the substance of the legislation you wish to refer to the voters. See Ops. Att’y Gen. Nos. 2013-043 and 2013-042. You have made changes in the text of your proposal since your last submission and have now submitted the following proposed popular name and ballot title for my certification:

Popular Name

A Referendum on the Health Care Independence Act of 2013

Ballot Title

The Federal Patient Protection and Affordable Care Act (PPACA) will significantly impact Arkansas’s Healthcare system. The 89th General Assembly enacted the Health Care Independence Act of 2013 in an attempt to mitigate the impact and alter Arkansas’ Healthcare system. The major elements addressed by the Health Care Independence Act of 2013 are the expansion of Medicaid healthcare coverage, through the creation of an alternative model that moves eligible and newly eligible individuals to a “private insurance option” for “low risk” adults and the creation of the Health Insurance Marketplace and the creation of Independence Accounts.

The expansion of Medicaid healthcare coverage includes, adults between nineteen (19) years of age and sixty-five (65) years of age with an income that is equal to or less than one hundred thirty-eight percent (138%) of the federal poverty level, including without limitation individuals who would not be eligible for Medicaid under laws and rules in effect on January 1, 2013; have been authenticated to be a United States citizen or documented qualified alien according to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, as existing on January 1, 2013; and are not determined to be more effectively covered through the standard Medicaid program, such as an individual who is medically frail or other individuals with exceptional medical needs for whom coverage through the Health Insurance Marketplace is determined to be impractical, overly complex, or would undermine continuity or effectiveness of care. On June 28th 2012 the United States Supreme Court decided in National Federation of Independent Business v. Sebelius, that each individual state was allowed to opt out of the Medicaid expansion.

The Health Care Independence Act of 2013 creates a Health Insurance Marketplace to offer healthcare insurance to include a “Qualified Health Plan” as mandated by the Federal Patient Protection and Affordable Care Act (PPACA). The mandated Healthcare coverage shall be achieved through a Qualified Health Plan at the “Silver Level” as defined in in [sic] 42 U.S.C. §§ 18022 and 18071, as existing on January 1, 2013, that restricts cost sharing to amounts that do not exceed Medicaid cost-sharing limitations. The Health Insurance Marketplace is a vehicle created to help individuals, families, and small businesses in Arkansas shop for and select health insurance coverage in a way that permits comparison of available Qualified Health Plans based upon price, benefits, services, and quality. Upon the receipt of necessary federal approval, during calendar year 2015 the Department of Human Services shall include and transition to the Health Insurance Marketplace for Children eligible for the ARKids First Program Act and populations under Medicaid from zero percent (0%) of the federal poverty level to seventeen percent (17%) of the federal poverty level. The Health Care Independence Act of 2013 creates Independence Accounts that operate similar to a Health Savings Account or Medical Savings Account that operate similar to a health savings account or a medical savings account during the calendar year 2015.

The implementation of the Health Care Independence Act of 2013 is contingent upon the approval by the Secretary of Health & Human Services of specific waivers including without limitation approval for a comprehensive waiver under Section 1115 of the Social Security Act. If the Department of Human Services does not receive the necessary federal approvals, the program shall not be implemented. An eligible individual enrolled in the program shall affirmatively acknowledge that: The program is not a perpetual federal or state right or a guaranteed entitlement; the program is subject to cancellation upon appropriate notice; and the program is not an entitlement program.

100% of the funding for the program will be provided by the federal government from 2014 through 2016 for “newly eligible” individuals. The funding will be decreased down to 95% in 2017, 94% in 2018, 93% in 2019, and 90% afterward. This decrease in funding will increase the cost to the State of Arkansas for implementation of the Health Care Independence Act of 2013.

The Attorney General is required, pursuant to A.C.A. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may substitute and certify a more suitable and correct popular name and ballot title, if he can do so, or if the proposed popular name and ballot title are sufficiently misleading, may reject the entire petition. Neither certification nor rejection of a popular name and ballot title reflects my view of the merits of the proposal. This Office has been given no authority to consider the merits of any measure.

In this regard, A.C.A. § 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is “clearly contrary to law,”[1] this office will not require that a measure’s proponents acknowledge in the ballot title any possible constitutional infirmities. As part of my review, however, I may address constitutional concerns for consideration by the measure’s proponents.

Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposed amendment.

The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act.[2]

The popular name is primarily a useful legislative device.[3] It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal.[4] The popular name is to be considered together with the ballot title in determining the ballot title’s sufficiency.[5]

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented.[6] According to the court, if information omitted from the ballot title is an “essential fact which would give the voter serious ground for reflection, it must be disclosed.”[7] At the same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9-107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522’s five minute limit in voting booths when other voters are waiting in line.[8] The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke.[9] The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring.[10] A ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law.[11] The ballot title must be intelligible, honest, and impartial.[12]

Applying the above precepts, it is my conclusion that the popular name you have submitted is acceptable and it is hereby certified without modification.

It is my conclusion, however, that a more suitable, complete, and correct ballot title should be substituted for the one proposed. The following is hereby certified in order to ensure that the ballot title accurately sets forth the purpose of the proposed amendment:

Ballot Title
This referendum enables the people to vote for or against The Health Care Independence Act of 2013 (the “Act”), which was enacted by the 89th General Assembly as identical Acts 1497 and 1498 of 2013. A vote “FOR” the measure will approve the Act; a vote “AGAINST” the measure will repeal the Act.
The federal Patient Protection and Affordable Care Act (PPACA) allows each of the states at its option to participate in a program, largely financed by the federal government, to expand the range of low-income individuals who would be covered under traditional Medicaid. Instead of adopting the model proposed under the PPACA, the Act provides for these additional individuals to be provided with premium assistance to purchase coverage through qualified private plans in a regulated, competitive insurance marketplace. Under the Act, financing of the state’s expanded coverage through premium assistance will be provided at first exclusively, and thereafter primarily, by the federal government. The Act is further designed to reduce traditional Medicaid enrollment by eventually extending premium assistance to individuals who currently qualify for coverage under Medicaid.
Specifically, the Act provides as follows:
(1) Subject to all pertinent federal approvals, the Arkansas Department of Human Services (“DHS”) will establish and administer a Health Care Independence Program (the “Program”) to provide premium assistance for all adults with an income equal to or less or than 138% of the federal poverty level who (a) would not have been eligible for Medicaid under rules in effect on January 1, 2013; (b) are U.S. citizens or documented qualified aliens according to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, as existing on January 1, 2013; and (c) would not be more effectively covered through standard Medicaid, such as the frail or those with exceptional medical needs;
(2) In establishing the Program, DHS will apply for necessary federal waivers and submit only those Medicaid state plan amendments that are optional and therefore may be revoked by the State at its discretion;
(3) Eligible individuals may enroll in qualified health plans offered through a health insurance marketplace consisting of participating carriers that offer private insurance coverage;
(4) The Program will include cost sharing for eligible individuals comparable to that for individuals in the same income range in the private insurance market;
(5) All carriers participating in the health insurance marketplace will provide coverage conforming to standards defined by law;
(6) The State Insurance Department will ensure that at least two qualified health plans are offered in each county of the state;
(7) Upon receipt of required federal approval, during calendar year 2015, DHS will include within the Program (a) children eligible for benefits under the “ARKids B” Program and (b) Medicaid recipients with an income from 0% to 17% of the federal poverty level;
(8) DHS will develop a model for an Independence Accounts Program, to be implemented in 2015, that will allow non-aged, non-disabled eligible individuals earning more than 50% of the federal poverty level to purchase high-deductible insurance through accounts that operate in the manner of health savings accounts or medical savings accounts;
(9) A Health Care Independence Program Trust Fund will be created to be used by DHS to pay future obligations.
(10) The Program will terminate within 120 days following a reduction in any of the following federal medical assistance percentages: (a) 100% in 2014, 2015 or 2016; (b) 95% in 2017; (c) 94% in 2018; (d) 93% in 2019; and (e) 90% in 2020 or any year thereafter;
(11) The Program will terminate on June 30, 2017 unless it is amended or extended by the General Assembly;
(12) Subject to review by the Legislative Council, DHS and the Department of Insurance will promulgate rules for the Program, which they will administer; and
(13) DHS and the State Insurance Department will report quarterly to the Legislative Council regarding Program performance.

Pursuant to A.C.A. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Constitution and of the penalties imposed for violations of this act. Enclosed herewith, over the signature of the Attorney General, are instructions that should be incorporated in your petition prior to circulation.


Dustin McDaniel
Attorney General



[1]See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).
[2]See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).
[3]Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
[4]E.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976). ; Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958).
[5]May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
[6]Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
[7]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
[8]Id. at 288, 884 S.W.2d at 944.
[9]Id. 293, 884 S.W.2d at 946–47.
[10]Id. at 284, 884 S.W.2d at 942.
[11]Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (internal quotations omitted).
[12]Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).