By Katie Kerwin McCrimmon
The showdown over health reform escalates this week both in Colorado and in federal court.
In Colorado’s GOP-controlled House of Representatives, Republican lawmakers are trying to halt the federal law through a legislative maneuver while Democrats are working to set up a new statewide health exchange.
Majority Whip, B.J. Nikkel, R-Loveland, and Majority Leader Amy Stephens, R-Monument, have introduced a bill that would allow Colorado to opt out of the Affordable Care Act.
“It’s time to put the brakes on and this is a good way,” said Nikkel, who has introduced the HOPE Act, which stands for Health Care Opportunity and Patient Empowerment Act.
HB 11-1273 would allow Colorado to opt out of the Affordable Care Act by creating an agreement among states, called an interstate compact, which would then supersede the federal law.
Senate Minority Leader Mike Kopp, R-Littleton, is sponsoring the HOPE Act in the Senate and compares the proposal to the Colorado River Compact which regulates water in western states. Compacts must be approved by Congress, but do not need support from the president.
“The U.S. Constitution allows Colorado and other states to form interstate compacts which, once approved by Congress, gives them complete regulatory authority outside federal law,” Kopp said.
Meanwhile, in federal court, the battle to defeat the Affordable Care Act is steaming ahead.
Justice Department lawyers met a seven-day deadline and appealed a Florida judge’s ruling against the new health law. Without that appeal, measures to implement the Affordable Care Act would have come to a screeching halt in Colorado and 25 other states that are fighting in court to have the health law declared unconstitutional.
U.S. District Judge Roger Vinson ruled in January in Florida that the entire health care law is unconstitutional because it requires individuals to buy health insurance. But, he acknowledged that other judges disagreed with him and that the case will end up in the U.S. Supreme Court.
Vinson last week scolded Obama Administration lawyers for stalling, and said he wanted the case fast-tracked. He warned that if Justice Department lawyers didn’t file an appeal by March 10, his ruling declaring the entire health law unconstitutional would go into effect immediately. On Tuesday, Justice Department lawyers filed a notice of appeal. The case now moves to the 11th Circuit Court of Appeals where oral arguments could be heard by late summer or early fall.
“The sooner this issue is finally decided by the Supreme Court, the better off the entire nation will be,” Vinson wrote in his March 3 clarification of his original ruling.
At both the state and national level, split leadership is clouding the future of health reform. Both in Colorado’s legislature and in Congress, the Democrats control the Senate while Republicans control the House.
In Colorado, there is also a sharp divide over the health law between the state’s chief executive and the top lawyer. Gov. John Hickenlooper supports the Affordable Care Act and is moving forward on multiple fronts to implement it. Attorney General John Suthers, meanwhile, opposes it.
Hickenlooper told the Washington Post that he’s concerned about the 700 people with serious medical problems who have already found insurance because of the law.
“Who goes to these people,” Hickenlooper told the Post, “and tells them, ‘Sorry, a judge in Florida has decided we now need to put you out in the cold?’ ”
Suthers believes the Affordable Care Act violates the Commerce Clause of the U.S. Constitution. If policymakers want to change the health care system, he thinks they should find a legal way to do it.
Lorez Meinhold, senior health care policy advisor to Hickenlooper, said bipartisanship is critical to moving forward. Hickenlooper is pushing for a bill that will establish a framework for a health exchange, which is the first step in implementing the Affordable Care Act. The exchange would be an online marketplace where people can shop for health insurance.
Sen. Betty Boyd, D-Lakewood, has been working with Meinhold and advocates on all sides to draft Colorado’s health exchange bill, but has not introduced it yet. She wants to be sure that she has a Republican co-sponsor in the House to ensure that the bill will win support from GOP lawmakers.
“We’re still working to get a bipartisan bill. That’s important for us to be able to move ahead,” Meinhold said. “We’ve been in conversations for the past two months. There are areas of agreement and disagreement, but I think we’re close.”
Meinhold said policymakers on both sides of the aisle agree that health exchanges, like the one already established in Utah, “can be helpful in creating more choice, better competition and better prices.”
Rep. Nikkel, who has co-authored the bill seeking to halt health reform, said that only two states are needed to create a compact. So far, she said similar opt-out legislation has been introduced in Arizona, Missouri, Montana, North Dakota and Tennessee. Texas and Florida are considering similar legislation.
“Health care decisions should really be made on the local level. We don’t like Washington bureaucrats making our decisions for us,” said Nikkel. “This simply allows us to opt out…then we can move forward with creating our own plans.”
Nikkel declined to make predictions about how the stalemate between moving forward with health reform and stopping it will be resolved. She thinks it’s possible that some Democrats will support her bill because they might share a belief that Colorado policymakers can do a better job reforming the complex health system.
“What we think is that doing this at the local level and not having the feds tell us what to do promotes the idea of free markets and giving consumers choice,” Nikkel said. “It’s always hard to predict what’s going to happen in the legislature. Sometimes you find support where you didn’t think you’d have it.
“I think we’ll get a fair hearing.”