As I noted back in late September, the busy work of implementing provisions of the health care reform act signed into law in March 2010 was going full steam ahead out at the state level, albeit simultaneously with efforts on the legislative, judicial, and even grassroots fronts to oppose some or all of PPACA.
Since that time, several U.S. District Courts have considered and ruled on the Act, leaving no clear winner in the tug of war over the constitutionality of the individual mandate, arguably the law’s centerpiece and the focus of greatest attention. Recently, action has moved to the Circuit Court of Appeals level since the Supreme Court rejected a motion to jet propel it up to the highest level. (Oral arguments in yet another Appeals Court session, in the 11th Circuit in Atlanta, were heard yesterday.)
And despite moves to wrestle the power to control health care regulation out of the hands of the federal government and place it firmly in the hands of the states via compacts, and even some more defiant proposed measures such as jail time and fines for state employees implementing certain of its provisions (Montana’s SB 161, which died in committee, or the original version of Wyoming’s HB 35, for example), efforts to respond to federal requirements continue, addressing myriad issues like claims appeals and external review, child-only coverage, preexisting conditions, and exchanges — even in states where opposition to PPACA is most “energetic.”
Georgia, for example, passed HB 461 (the Interstate Health Care Freedom Compact), despite a recent poll revealing voter opposition to PPACA far weaker than the votes in the legislature in support of the Compact might suggest. At the same time, Governor Nathan Deal has issued an executive order creating a panel to investigate establishing an exchange. Oklahoma recently signed on to the Health Care Compact, but legislation has also been introduced to establish an exchange.
Some states, such as Idaho, Florida, and Oklahoma, taking their signal from district court decisions in Florida and Virginia, have backed away from using federal grants that had been awarded for implementing exchanges under PPACA, while others, like Kansas, Montana and West Virginia, seem to be moving ahead on the assumption that PPACA is the law of the land –- at least until it’s not.
Nevada’s SB 440 and Iowa’s SF 348, which would start the ball rolling on exchanges, are alive in the legislatures. Similar bills have been adopted in Colorado and North Dakota, where compact bills have also been introduced in the current session (for example, the compact found in North Dakota bill, HB 1291, was defeated in committee early in this session, though some legislators hope to resurrect the idea eventually).
Even Virginia, where Attorney General Ken Cucinelli is among those leading the charge in federal court to strike down PPACA’s individual mandate, has enacted legislation seeking to establish an exchange. And back as early as January, Indiana Governor Mitch Daniels issued Executive Order 11-01 to establish a state exchange.
One interesting development is the adoption of laws restricting the availability of abortion coverage in insurance exchanges. The National Conference of State Legislatures reports that at least 11 states have enacted such measures since PPACA was enacted.
Clearly, many of the reforms etched (more or less) in stone via PPACA are being enacted throughout the country, despite uncertainty as to how the Act will ultimately fare when it goes before the Roberts court. And clearly, implementation of the provisions is not exclusive to states where support for President Obama’s reform initiative has always tended to run higher.
The progress of these and other bills is a moving target, set against the backdrop of a judiciary whose eventual decision cannot be predicted. (I’m digging out my Magic 8-Ball right now.) But further complicating matters, the current crop of presidential contenders seems intent on confusing the issues by reversing positions taken in earlier times and even doing some 180’s as to recent statements to boot. That may only get worse in the months ahead, particularly as consumers take note of headlines like “Pre-Existing Conditions Insurance Rates Drop by 37.5% in Nevada,” “Vermont Passes Single-Payer Health Care, World Doesn’t End,” and reports of health insurance rates dropping 10% in Connecticut. Regardless of whether such headlines indicate a trend or just some atypical phenomenon attributable to sunspots, it does lead one to ask just how much of PPACA the high court may want to pull the rug out from under.
And of course, if the Supreme Court does find in favor of state appellants, one of the great mysteries is how much of what’s being put in place now would – or could – eventually survive.
Over and over and over, no matter how much I shake it, Magic 8-Ball just keeps saying, “Reply hazy, try again.”
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