Can a Mississippi governor expand Medicaid on his own? Depends on who you ask.

Editor’s note: Mississippi Today interviewed two Deep South governors about why they chose to champion and pass Medicaid expansion in their states and what the outcomes have been. Those articles will publish on August 24.

Brandon Presley, the Democratic nominee for governor, has at times spoken of expanding Medicaid through executive action without approval of the Republican-controlled Mississippi Legislature should he win the November general election.

“Day 1, I’m going to expand Medicaid so that 220,000 working Mississippians can get access to affordable healthcare,” Presley wrote on social media in July.

At other times, perhaps recognizing the obstacles such a solo effort to expand Medicaid might face, Presley has indicated he would work with the Legislature, which he has said he believes would be amenable to Medicaid expansion.

As nearly half of the state’s rural hospitals are at risk of closing and hospitals across the state are laying off staff or cutting services because of budget problems, Medicaid expansion has become a key campaign issue in 2023.

Forty states and the District of Columbia have expanded Medicaid, a federal opt-in program that provides health care coverage to poor Americans who can’t otherwise afford it themselves. Two of Mississippi’s neighbors, Arkansas and Louisiana, have expanded Medicaid with great success and improved outcomes.

But leaders in Mississippi, the poorest state in America with one of the nation’s highest percentages of uninsured residents, have resisted expansion for more than 10 years — despite the fact that it would bring more than $1 billion per year in new funds to the state and directly help hospitals.

READ MORE: FAQ: What is Medicaid expansion, really?

In some states, such as Louisiana, expansion was done through executive orders instead of by approval of the Legislature. But there are questions about whether a governor in Mississippi could expand Medicaid without legislative approval.

Republican Gov. Tate Reeves, who is seeking reelection and faces Presley in the November general election, has long opposed expanding Medicaid.

The Division of Medicaid, which is under the statutory direction and purview of the governor, takes the position that Medicaid expansion requires legislative approval.

“State law defines who can be eligible for Medicaid in Mississippi. Our understanding is that a governor is not authorized to unilaterally establish a new Medicaid coverage group through an executive order or a federal demonstration waiver,” said Matt Westerfield, a spokesperson for the state’s Division of Medicaid.

State Sen. Kevin Blackwell, R-Southaven, who chairs the Senate’s Medicaid Committee, referred questions about whether a governor could expand Medicaid on his or her own to the Division of Medicaid. His House counterpart, Joey Hood, R-Ackerman, could not be reached for comment.

Former state Rep. Steve Holland, who for years was considered one of the leading authorities in the Legislature on Medicaid issues as the longtime chair of Public Health Committee, said the governor has considerable authority over the Medicaid program. After all, Medicaid is a division within the governor’s office.

Still, Holland said, “We have the most codified Medicaid program in the country. We have put all the eligibility requirements in law … I know Brandon (Presley) as well as anyone. If he is fortunate enough to be elected governor, he is smooth enough and prepared enough to begin immediately to expand Medicaid. And I think he can work with the Legislature to do that.”

READ MORE: Nearly half of rural hospitals at risk of closure in Mississippi, new data shows

The Presley campaign has cited the ability of the Division of Medicaid — hence the governor — to seek a federal waiver to alter the state Medicaid program. A campaign spokesperson said the governor would have authority to seek the waiver under state law, though waivers are granted for only five years and they normally are granted in coordination with the Legislature, which often must provide funding to pay for the waiver.

Holland said state law provides the Division of Medicaid under the governor significant flexibility to seek waivers from the federal government to enact programs that are not codified in state law.

The bottom line is that if there was an effort to expand Medicaid through the waiver program, an appropriation by the Legislature to fund the program most likely still would be needed. But if a governor did expand Medicaid and figure out a way to pay for the program without the Legislature, it likely would result in litigation and be left to the state courts to determine whether it was legal.

Specific sections of state law define who is eligible for Medicaid based on income levels and health issues. In general terms, in Mississippi only poor pregnant women, poor children, the disabled, certain groups of the elderly and some groups who fall into extreme poverty categories and are providing care for family members on Medicaid are eligible for Medicaid coverage.

Most able-bodied people are not eligible for Medicaid in Mississippi.

With Medicaid expansion, those earning up to 138% of the federal poverty level — or about $18,750 annually — would be eligible for coverage. The intent with Medicaid expansion is to provide health care to primarily the working poor who cannot afford private insurance and who are not provided coverage by their employers.

The most clear cut way to expand Medicaid would be for the Legislature to approve a bill to incorporate the new eligibility requirements in state law.

Whether it would be feasible for the Legislature to agree to such a change in state law is the unknown question. If Presley is elected, Mississippians will find out.

At least in the current Legislature, there is a significant appetite to at least consider the merits of expansion. Last legislative session, Mississippi Today surveyed most of the 174 lawmakers and asked them directly if they supported Medicaid expansion.

In response, voting majority in the House said they either supported Medicaid expansion or remained undecided. One vote shy of a voting majority in the Senate said the same.

Just 21 of the House members surveyed, or 18% of the House, said they outright opposed Medicaid expansion. And just 18 of the Senate members surveyed, or 38% of the Senate, said they outright opposed it.

READ MORE: Few Mississippi lawmakers outright oppose Medicaid expansion

Holland, who served in the Legislature until 2020, says he believes Presley could get Medicaid expansion through the Legislature even with a Republican supermajority.

“Tate Reeves and (House Speaker) Philip Gunn were the two blocking it. Period.” said Holland. Gunn is not seeking re-election this year.

“In my final years in the House I had so many Republicans come to me and say expanding Medicaid is the right thing to do,” Holland said.

Another option would be for the Legislature to reauthorize the ballot initiative program that was ruled unconstitutional in 2021 by the state Supreme Court. Through the initiative process, people can gather signatures to bypass the Legislature and place issues directly on the ballot.

When the initiative process was ruled invalid, there was an effort underway to gather the required number of signatures to place Medicaid expansion on the ballot. The Mississippi Hospital Association was one of the sponsors of the Medicaid expansion initiative proposal and had hoped to have enough signatures to place the proposal on the 2022 ballot.

Multiple polls have indicated strong support among Mississippi voters for Medicaid expansion.

So far, legislative efforts to revive the initiative have been unsuccessful.

READ MORE: Mississippi leaving more than $1 billion per year on table by rejecting Medicaid expansion