Portions of the Obama administration’s health care reform law continue to be put in place in Colorado, despite efforts to overturn the act.
Colorado’s Attorney General John Suthers has joined his counterparts in 25 other states as plaintiffs in a lawsuit opposing the Patient Protection and Affordable Care Act.
A Florida judge ruled the entire law unconstitutional Jan. 31, marking the first major victory for opponents of the law. In December, a Virginia court ruled only the mandate that everyone obtain health insurance was unconstitutional.
Health reform advocates say the Florida ruling was expected because the court district was chosen to hear the suit “on purpose.”
“It wasn’t a surprise. They chose where to file the suit very carefully, with a very conservative judge,” said DeDe DePercin, executive director of the Colorado Consumer Health Initiative. “But if they want to roll it back, it’s really going to take a Supreme Court decision.”
And by the time it reaches the Supreme Court, it might be too late.
“We’ve (Colorado) already received $1 million for rate review and $1 million for health insurance exchanges,” DePercin said. “The exchanges will receive more money in March. That money’s already rolling. It’s already out the door.”
Some of the provisions that have already gone into effect will be difficult to undo later — such as covering children with pre-existing conditions, lifting cost ceilings on care and prohibiting insurance companies from canceling coverage when people become ill.
Other parts of the act, like the insurance exchanges, have to be in place by 2014. The federal government has several checks along the way to make sure states will be able to reach that goal. Colorado is ahead of the timeline.
“Most people like the idea of insurance exchanges,” DePercin said. “It makes sense.”
Not so fast, says Rob Natelson, senior fellow in constitutional jurisprudence at the Independence Institute, a nonprofit libertarian think tank in Denver.
“Just because money is being spent doesn’t mean the law is immutable,” he said. “It’s very cloudy right now, but the Supreme Court could overturn the law and end it. It’s unlikely the federal government will ask for its money back, but there will be some sort of congressional fix.”
The Florida judge could also halt forward movement on the law, at least in the 26 states that took part in the lawsuit. The Obama administration has asked for a clarification of the ruling, which could come as early as next week.
“The judge didn’t issue an injunction against the law but clearly expected the administration to respect his decision. They haven’t,” Natelson said. “If he says it must stop moving forward in those states, then they will have to file an appeal.”
The Supreme Court could end all the speculation by hearing the case immediately, but the current court doesn’t do that often.
“They like to let the cases percolate through the system, so it narrows the issues,” Natelson said. “It could be years before the case is heard. But once the court rules it unconstitutional, the law is void. There’s no way around it.”
But a ruling by the Supreme Court might not be necessary, he said. Some provisions have already been dismissed. Cash-strapped states are also rebelling against the Medicaid expansion.
“I’ve been doing this for a while, and I’ve never seen this kind of pushback from the states,” Natelson said. “It’s unheard of. People don’t want the federal government dictating to them.”
Some groups have suggested that Congress repeal the portion of the law that requires states to repay the federal government for seniors who are on Medicare and Medicaid. Others have asked that Congress end the requirements that businesses file additional health insurance forms with the IRS.
“There’s been some of that, some nibbling around the edges, some discussion of changing some of the funding,” DePercin said. “But a lot of the money is already allocated and has already been put in place.”
In particular, states are trying to find a way around a part of the law they find financially onerous: the requirement that states expand Medicare to everyone at 133 percent of the federal poverty level.
The Obama administration has been hearing from states about the financial burden of expanding Medicaid when they face historic budget deficits.
Kathleen Sebelius, secretary of Health and Human Services, sent a letter to U.S. governors recommending ways to handle the increased Medicaid population — increasing co-pays or cutting benefits.
She also allowed individual states to take other steps. Minnesota was allowed to expand its program to the 2014 level early in order to take advantage of federal matching funds. Connecticut and Washington, D.C., have already done that.
But Florida is taking a different approach. It could become the first state to leave the Medicaid program if the federal government doesn’t approve its proposal to privatize the program and cut its benefits.
Arizona has also taken a defiant approach to health care reform mandates. Its state senate passed a law that intrastate commerce — business or services that take place only within the state’s borders — is exempt from the Constitution’s commerce clause.
“That includes health care,” Natelson said. “They don’t want any more interference from the federal government.”
More than 20 lawsuits have been filed challenging the Patient Protection and Affordable Care Act. About a dozen have been thrown out due to procedural issues. Three judges ruled in favor of the act, while the following two judgments were against the Obama administration.
Florida v. the U.S. Department of Health and Human Services
Twenty-six states, including Colorado, the National Federation of Independent Business and two insured individuals sued the DHH to overturn the act. Judge Robert Vinson in Florida ruled against the government, saying that the requirement for individuals to purchase insurance was unconstitutional. He said the mandate could not be separated from the rest of the law, so the entire law must be struck down. The government asked for a clarification of his ruling, and that is expected to come next week. The Obama administration can then appeal to the 11th Circuit Court of Appeals.
Virginia v. Sebelius
DHH Secretary Kathleen Sebelius is the defendant in Virginia Attorney General Kenneth Cuccinelli’s case that maintains Congress exceeded its authority by requiring individuals to purchase health insurance. He also argued that the law violated the Virginia’s sovereignty because it overthrew a state law that prohibits individuals from being forced to purchase insurance. The judge in the case upheld most of the law, but ruled the individual mandate was unconstitutional.