Resisting a state-based health care exchange prescribed by the Patient Protection and Affordable Care Act (PPACA) is one thing, but creating a civil action for those that dare try is another.
Such is the case in Missouri. The law is so unusual that it was the subject of a law school health policy class in Connecticut this past week.
Due to a new state law passed by voters November 6, known as Proposition E on the ballot, assisting a state-based exchange opens up officials to civil litigation and bars a state-based exchange absent enabling legislation. Newly-re-elected Democratic Missouri Gov. Jay Nixon said that it cannot set up a state exchange under the health care reform law, even though he wishes to maintain state control of his health insurance market.
“We believe that regulation of the insurance market is a power best left in the hands of the states,” Nixon stated in a Nov. 16 letter to U.S. Health and Human Services Secretary Kathleen Sebelius.
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Nixon noted there was a big push in the Missouri General Assembly in 2011 to create a state-based exchange, which passed the Missouri House but ultimately failed in the full state Senate.
He called it unfortunate, and told Sebelius that “we continue to favor state, rather than federal, control of our insurance market.”
But Nixon is out of luck here, as some have pointed out. The new law bars all of the governor’s authority for establishing, administering, or operating a state-based health benefit exchange in Missouri. It bars any “department, agency, instrumentality or political subdivision of the state of Missouri from promulgating any rule, policy, guideline or plan to change any program, rule, policy or guideline to implement, establish, create, administer or otherwise operate a state-based health benefit exchange described in the federal health care act unless it has authority from the state legislature or a state petition, referendum.”
Second, the new law allows any taxpayer in Missouri or any member of the general assembly to bring suit against the state of Missouri or any official, department–including Insurance Commissioner John Huff –a nonvoting member of the federal Financial Stability oversight Council (FSOC) or any other member of the department, division, agency, or political subdivision which is in violation of the law and helps set up a state-based exchange.
Moreover, courts are given the power to award all attorney’s fees, court costs, and all reasonable expenses incurred by the taxpayer or member of the general assembly and have the violator pay.
Thus, if the insurance commissioner or any of his staff do any exchange work, perhaps including working with the NAIC, or SERFF if the end-product benefits Missouri future state exchanges, they can be sued by a taxpayer of the state (taxpayer as opposed to a citizen so presumably does not include retirees or those on maternity leave or students or the work-disabled or stay-at-home parents). They will also have to pay all fees if they are found to be in violation of the statute. The money cannot be paid from a legal defense fund and no extra money can be made to the department to help pay the fees.
Thus, the governor wrote to Sebelius, based on current state law and existing federal guidelines, “Missouri will be unable to proceed with a state-based exchange.”
Andrea Routh, executive director of the Missouri Health Advocacy Alliance and an NAIC consumer representative said that the final ballot language was written by a circuit court judge and only mentioned state-based exchanges so the people did not really know they were voting on a measure that “virtually ties the hands of state employees to assist the federal government in setting up the exchange for our state.”