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April 5, 2010 Monday 10:24 AM EST
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Sovereignty, Politics a Key for Regulators, AGs on Health Reform
Sean P Carr
WASHINGTON
When it comes to the new health care reform law, state attorneys general and state insurance commissioners both see themselves as championing state sovereignty — but from very different perspectives.Fourteen attorneys general, at present, are suing to block the Patient Protection and Affordable Care Act in federal court, saying the bill violates state sovereignty and specifically citing a mandate that Americans carry health insurance as unconstitutional. Virginia’s new attorney general, Kenneth T. Cuccinelli II, filed a separate lawsuit, as authorized by a 2009 state law barring the government from requiring its citizens from purchasing health insurance.State insurance commissioners and the National Association of Insurance Commissioners lobbied hard to make sure their role as primary insurance regulators was affirmed in the legislation. The law specifically references the NAIC and state commissioners in approximately a dozen places, spelling out areas where state officials will implement new rules and regulations and where they will consult with the U.S. Department of Health and Human Services on issues including insurance exchanges and interstate compacts. “We will insist on maintaining our sovereign authority,” Oklahoma Insurance Commissioner and NAIC Secretary-Treasurer Kim Holland said.NAIC Vice President and Florida Insurance Commissioner Kevin McCarty praised his fellow regulators for keeping their “collective cool” during the contentious health care debates. The association did not take a formal position on any of the health care bills. As regulators, their focus has remained on how to turn “the law of the land” into comprehensible and effective procedures, NAIC President and West Virginia Insurance Commissioner Jane L. Cline said.Louisiana Insurance Commissioner Jim Donelon is no fan of the health care law, but said he still has a job to do. “I have to do my job and whatever the law says is my responsibility, we no doubt will do,” the first-term elected Republican said. “I would hope the lawsuit is successful. I’m not overly optimistic about that.”Keeping the nuts-and-bolts of regulations on high-risk pools, medical loss ratios and insurance exchanges separate from health care politics will continue to be a challenge for regulators and the NAIC, particularly in an election year.“The state sovereignty claims are undoubtedly as much political as they are legal,” said Wendy E. Parmet, a professor of health law and constitutional law at Northeastern University.The suing attorneys general are all Republicans, with the exception of Louisiana’s James D. “Buddy” Caldwell. The group includes at least three gubernatorial candidates, Florida’s Bill McCollum, Michigan’s Mike Cox and Pennsylvania’s Tom Corbett. Four Democratic governors whose Republican attorneys general joined the lawsuit — those of Colorado, Michigan, Pennsylvania and Washington — have offered their support to U.S. Attorney General Eric Holder.Pennsylvania Insurance Commissioner Joel Ario, who advised U.S. Senate staff and the Obama administration on technical aspects of the legislation, thinks the issue is “clear-cut” and he stands with his governor, Ed Rendell.“I just don’t think there’s a good legal argument against the individual mandate, and I also think the individual mandate is fundamental to the insurance reforms,” he said. “Were the mandate to go down as a matter of insurance reform, it would be very difficult to keep the access reforms, the elimination of pre-existing conditions and all the insurance reforms that everyone seems to like.”Two insurance commissioners are running for re-election this year: Holland, a Democrat, and Kansas Insurance Commissioner Sandy Praeger, a Republican. Praeger, chairwoman of the NAIC’s Health Insurance and Managed Care Committee, personally endorsed the bill that came out of the Senate Finance Committee, on which the final legislation was based. Praeger said her current position is neutral. “I look forward to working with HHS on implementation issues, to ensure that our consumers and local markets are protected,” she said.Issues raised by the attorneys general deal primarily with issues that do not take effect for a couple of years, Parmet said. As unlikely as it is the attorneys general will prevail, it is even more unlikely that a court would order a halt to regulatory work in-progress, she said.“It would be very unusual for a court to rule quickly, or to issue a preliminary injunction and prohibit part of the bill from going forward,” she said.New Jersey Insurance Commissioner Tom Considine said while he opposed the health care bill, the new administration of Republican Gov. Chris Christie has enough on its plate. “It passed. It’s the law. It’s time to implement it,” he said.To hear interviews with Considine and Ario in their entirety, go to http://www.ambest.com/media/media.asp?RC=170794 and http://www.ambest.com/media/media.asp?RC=170793 (By Sean P. Carr, Washington Correspondent: sean.carr@ambest.com)
April 6, 2010
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