Patrick B. McGuigan
Some voices contend the federal health care exchange is a “done deal,” even as more than 70 members of Congress, a few American governors and countless grass roots activists organize to oppose implementation of the health care law, including the exchange.
Oklahoma’s largest newspaper, The Oklahoman, took a critical view of the federal health care law upheld by the Supreme Court, encouraging officials to find ways to limit its fiscal impact on provision of Medicaid in the Sooner State.
Also pushing for creation of a federal health exchange is the State Chamber and its president, Fred Morgan. In the Chamber statement shortly after the 5-4 decision was released, Morgan said, “We are extremely disappointed in this decision. This is exactly what we feared when we formed the Oklahomans for Free Market Health Solutions coalition last year to help support an Oklahoma-based solution to the federal exchange mandate in the ACA.
“We now face a situation where a health insurance exchange crafted by bureaucrats in Washington, D.C. will now be forced upon Oklahomans. We cannot let this happen and must take swift action to create a private sector driven health insurance marketplace in order to avoid a federally mandated system,” said Morgan.
“The ramifications of this decision are not yet completely known, but we believe this change will erode the quality of care Oklahomans have come to expect and ultimately increase costs for all Americans.”
One of Oklahoma’s most powerful law firms, Crowe & Dunlevy, also argues that implementation of the law is now more or less a foregone conclusion, saying in a press release: “The decision means that the bulk of the act will go into effect in 2014 unless Congress acts to repeal all or portions of the act before then.”
Karen Rieger, chair of the healthcare practice group for the firm, said in a statement sent to CapitolBeatOK, “This is one of the most important rulings involving healthcare in the past 10 years. Now that we have the decision, it will be important for healthcare providers, employers and regulators to move forward quickly to assure timely implementation of the law.”
In the law firm’s summary of the often-perplexing ruling crafted by Chief Justice John Roberts, Rieger wrote that the individual mandate to carry health insurance, crafted as a fine or penalty in the original legislation passed in 2010, “is constitutional under Congress' power to tax, although the court also held that it was not within Congress' power under the commerce clause.”
The firm continued, “The court limited the act's provision expanding Medicaid eligibility, essentially making such expansion optional for states. Chief Justice Roberts noted that Congress may create state-federal spending programs, but the programs must be voluntarily and knowingly accepted by the states. Threatening states with the loss of their existing Medicaid funding if they decline to comply.”
The firm detailed the position now being advanced by the Obama administration and scattered voices in Oklahoma: “Now that the act has been upheld, Oklahoma will need to take steps to implement an Oklahoma Health Insurance Exchange before the commencement of the February regular legislative session in order to comply with the federal law.
“If the state is not able to comply with the federal law by Jan. 1, 2013, the federal government will impose its health insurance exchange on Oklahoma. Health insurance exchanges will provide internet-based ‘markets,’ where initially individuals and small employers can research health insurance options and purchase insurance coverage.”
Rieger said, “Many in the industry have been in a holding pattern, waiting for the Supreme Court decision. It is now time for all affected businesses and individuals to determine what steps they need to take to assure smooth implementation of the act."
About 24 hours after the Supreme Court ruling, U.S. Secretary of Health and Human Services Kathleen Sebelius announced what her staff deemed “a new funding opportunity to help states continue their work to implement the health care law -- the Affordable Care Act.”
In a press release sent to CapitolBeatOK, the federal agency said “affordable insurance exchanges” intended to take effect in 2014 “will provide people and small businesses with one-stop shops to find, compare and purchase affordable, high-quality health insurance.” Her agency’s announcement “more funding available to build all models of affordable insurance exchanges available to states.”
Sebelius said, “The federal government and out state partners are moving forward to implement the federal health care law. This new funding opportunity will give states the resources they need to establish affordable exchanges and ensure Americans are no longer on their own when shopping for insurance.”
The funding mechanisms announced June 29 provide new ways, HHS said, “to apply for funding to establish a state-based exchange, state partnership exchange, or to prepare state systems for a federally facilitated exchange.”
In all, 34 of the 50 states and the government in the District of Columbia have received some $850 million in exchange dollars financed by U.S. taxpayers. HHS said, “states can apply for exchange establishment cooperative agreements through the end of 2014. These funds are available for states to use beyond 2014 as they continue to work on their exchanges. This ensures that states have the support and time necessary to build the best exchange for their residents.”
Although the tone of the HHS announcement framed the items described as new or aimed at promoting cooperation, in a set of responses to frequently asked questions about the Funding Opportunity Announcement (FOA), the agency noted, “The new FOA does not change the deadlines for State Exchange approval, which are set forth in the Affordable Care Act and regulations.” The final deadline for approval of a state exchange is November 1, as a practical matter, although the firm deadline is January 1. 2013.