Low-income Coloradans often pay the price for the state’s budgetary quandaries. Fortunately, there are tools available to relieve some of the budgetary pressure caused by rigid constitutional requirements. The issue is whether lawmakers are willing to use those tools.

Case in point, in 2009, Colorado lawmakers created a fee on hospitals that allowed Colorado’s Medicaid program to draw matching federal dollars to fund health services for indigent patients and to expand Medicaid programs to better meet the needs of vulnerable Coloradans. The hospitals supported this fee because the funds would help cover their uncompensated costs. However, the revenue generated by the provider fee has become something of an albatross to the state’s budget under the Taxpayer’s Bill of Rights (or TABOR).

Last year, lawmakers introduced legislation that would create a state enterprise to exempt the revenue from the fee from TABOR’s spending limits. The legislation failed late in the session amid concerns about whether it complied with the state constitution, but the notion of creating an enterprise was widely discussed in the months before the 2016 session convened. Meanwhile, legislators continued to disagree as to whether such an enterprise would be legal or appropriate.

On Monday, Colorado Attorney General Cynthia Coffman released an opinion concluding that it would be legal under the state constitution for the Colorado General Assembly to establish a TABOR-exempt enterprise to collect and administer the hospital provider fee.

With this opinion, Colorado’s lead attorney gave the green-light to an idea that many — including Gov. John Hickenlooper — feel will alleviate significant budget constraints facing the state.

TABOR refers to a section of Colorado’s constitution that, among other things, provides for voter participation in making state fiscal policy by requiring voter approval of state tax increases and government spending above certain limits. TABOR triggers automatic tax rebates to taxpayers when taxes and non-exempt fees exceed the state’s spending cap.

Due in part to the economic recovery, Colorado last year collected revenues that exceeded TABOR’s spending limits triggering tax rebates estimated to total $189 million, with average individual rebates ranging between $34 and $108 per person. The rub is that while the state is issuing tax rebates, budget shortfalls are forcing the state legislature to cut government programs and under-fund priorities like K-12 education and transportation in order to balance the budget.

The provider fee became a major player in the budget discussions last year after revenue forecasts predicted our current situation. That is because the provider fee fund, which last year collected $689 million, can only be used for statutorily designated purposes and, therefore, cannot fund TABOR’s tax rebates. Thus, while the provider fee alone pushes state revenues over the TABOR spending limits the tax rebates must be paid entirely from non-hospital provider fee revenues that would otherwise go toward education, transportation, etc.

To rectify this situation, Gov. Hickenlooper has proposed moving the provider fee to a TABOR-exempt enterprise. Under TABOR, enterprises are government-owned businesses and their funds are explicitly exempted from TABOR’s spending limits. The Attorney General’s opinion concluded that that an entity established to collect and administer the provider fee could qualify as such an enterprise.

However, even with the Attorney General’s legal blessing, the proposal remains the subject of an intense political battle at the Capitol. Senate President Bill Cadman, R-Colorado Springs, who has control over whether the proposal will go to a vote in the Senate, has said that the Attorney General’s legal opinion is just “another opinion” and that it does not mean the hospital provider fee should be converted to an enterprise.

Despite opposition from Sen. Cadman and others in the Senate’s majority party, Colorado House Speaker Dickey Lee Hullinghorst, D-Boulder, announced her intention on Tuesday to introduce a bill that would establish the enterprise.

The decision regarding whether or not to establish a hospital provider fee enterprise has important implications for health care reform in Colorado. While the state budget has been the focus of the debate, proposals to reduce the amount collected by the hospital provider fee fund to deal with the problem jeopardize the sustainability of important safety net programs implemented under health reform.

The fee is paid by hospitals and goes into a state fund that is used to draw down a federal match that doubles the size of the fund. Then, the dollars are prioritized and used to fund several crucial aspects of Colorado’s health care safety net. The fee funds indigent and charity care programs at Colorado hospitals. It is used to make incentive payments to hospitals that make quality-of-care improvements. It is used to fund the expansion of Medicaid coverage to a greater number of vulnerable Coloradans and the Medicaid Buy-In programs, which allow disabled adults and the parents of disabled children to find employment without fear of losing access to Medicaid. Finally, the fee funds continuous Medicaid and CHP+ eligibility for children, which allows children to stay on Medicaid or CHP+ for a full year — ensuring crucial continuity of coverage for those kids.

Those are crucial aspects of health reform that have strengthened the health care safety net for vulnerable Coloradans and played a vital role in making Colorado a national leader in reducing state uninsured rates. In light of budget constraints, the Colorado Department of Health Care Policy and Financing (or HCPF) has already proposed across-the-board rate cuts for Medicaid providers with larger cuts for primary care providers.

Such proposed cuts threaten to cause provider shortages and significantly decrease access to care — especially in areas of the state where access is already limited. Reducing the amount collected by the hospital provider fee will only add to the problem by reducing the funding available for indigent and charity care and for the Medicaid expansion and Medicaid Buy-In populations. Transferring the fee to an enterprise will provide some relief to our budget situation while protecting the fee and the programs it funds.

CCLP supports the formation of an enterprise for the hospital provider fee because it would help ensure ongoing access to health care for some of Colorado’s most vulnerable low-income residents. Despite likely opposition from Senate leadership, we are hopeful that Attorney General Coffman’s comprehensive opinion will bring legislators and the governor to the table to negotiate a solution that would benefit low-income Coloradans.

Regardless of what happens, CCLP will work to ensure that Medicaid is protected as legislators make decisions about how to address this year’s budgetary shortfall.

–Allison Neswood