VII. Key Issues: Regulation & Reform >> C. Health Reform >> Affordable Care Act (ACA) >> ACA and Government >> ACA and the States (last updated 4.23.17)
As of 11.2.15, only 22 states had fully cooperated with the ACA by both expanding Medicaid and setting up their own health exchanges (AK, AR, CA, CO, CT, DC, DE, HI, IL, IA, KY, MD, MA, MI, MN, NH, NY, OR, RI, VT, WA, WV), another 19 states (AL, FL, GA, KS, LA, ME, MI, MO, NE, NC, OK, SC, SD, TN, TX, VA, UT, WI, WY) had fully resisted by electing not to do either (see map).
As of 3.14.16, 19 states had not adopted the Medicaid expansion and 27 states were relying exclusively on the Federally-facilitated Exchange due to failure to set up a state-run Exchange. Some non-cooperating states have taken further steps to resist the law’s implementation; some also have taken legal action to fight various provisions.
ACA and State Legislatures
Nullify Obamacare Movement
The Tenth Amendment Center has spearheaded a systematic effort to nullify the ACA using 5 pieces of model legislation (listed in approximate order of the extent each would blunt the impact of the ACA):
- ACA Anti-Commandeering Act, This is a broad bill that covers the other four, and more.
- Prohibit Enforcement by State Insurance Commissioner. According to the Center, “the provision prohibiting state insurance commissioners from investigating or enforcing violations of federally mandated health insurance requirements will prove particularly problematic for the feds. Insurance commissioners serve as the enforcement arm for insurance regulation in the states. The federal government has no enforcement arm. It assumed the state insurance commissioners would enforce all of the provisions of the ACA. So, when people have issues with their mandated coverage, they will have to call the feds. At this point, it remains unclear who they will even call should states ban their own Insurance Commissioners from carrying out this essential task. Issues the state insurance commissioner would not address include prohibiting a denial of insurance for preexisting conditions, requiring dependent coverage for children up to age 26, and proscribing lifetime or yearly dollar limits on coverage of essential health benefits.”
- Ban the Creation or Operation of an Exchange. 27 states have adopted this approach.
- Ban Medicaid Expansion. 19 states have adopted this approach.
- Block IRS’s Illegal Taxes. According to the Center, “the 27 states that have refused to establish Exchanges can actually block the IRS’s illegal ObamaCare taxes legislatively by suspending the licenses of insurers that accept the illegal subsidies. Since no insurer would then accept one, not a single employer in the state could be hit with the employer-mandate penalties those subsidies trigger. Legislators in Ohio and Missouri have previously considered legislation based on the American Legislative Exchange Council’s “Health Care Freedom Act 2.0” model legislation. Note that both the State of Oklahoma and State of Indiana challenged the use of federal subsidies on federally-run ACA Exchanges, but lost this challenge when the Supreme Court decided the issue in June 2015.
The Center asserts that “these provisions stand on solid legal ground under the ‘anti-commandeering doctrine.’ This rests primarily on four SCOTUS cases: Prigg v. Pennsylvania (1842), New York v. US (1992), Printz v. US (1997) and National Federation of Businesses v. Sebelius. (2012).”
Health Care Compact (HCC)
In January 2011, an organization called the Health Care Compact Alliance (HCCA) held an event in Houston, Texas where the text of the Health Care Compact (HCC or Compact) was unveiled. Advocates of the Compact have stated the Compact will let states opt out of federal health care regulations, including those contained in ObamaCare, and convert federal spending for most federal health care programs into a grant to the states to let them establish a state-based alternative to current federal programs, including Medicare, Medicaid and CHIP.
- American Health Education Coalition. The Health Care Compact: A Trojan Horse that Will Decimate State Budgets. October 23, 2011. Provides a detailed critique of the HCC, concluding that from 2012 to 2021, the Compact will create a cumulative health care deficit for the states of nearly $3 trillion. This will require states to make difficult policy choices.
- Health Care Compact. “In a bold effort ‘to protect individual liberty and personal control over Health Care decisions,’ nine states have approved a Health Care Compact to claim some autonomy from the Affordable Care Act, Medicare and Medicaid; two other states are considering joining them. The problem, however, is that in health care, most of the compact’s signatory states have poor records with respect to individual liberty and personal control over care. The controls and strictures that these states place on patients and health care providers differ from the Affordable Care Act in style, but not in spirit. In both, the central guiding principles are paternalism and protectionism. The states, or their appointed medical boards, forbid patients and providers from using safe, effective modes of care and protect the finances and turfs of doctors, hospitals and others by shielding them from competition.” Graboyes, Robert and Mitchell, Matthew. (USNews, 10.13.15)
Other State Actions
- States Continue War over Obamacare: State Lawmakers at Odds over Hundreds of Bills to Either Cripple or Prop Up Affordable Care Act. “In state capitals around the country, from Albany and Columbia to Austin and Sacramento, lawmakers have been mulling over hundreds of proposals that reflect a myriad of starkly different views on Obamacare as settled law. A Center for Public Integrity review found that more than 700 Obamacare-related bills were filed in the states during 2014 or carried over from 2013 in states where legislatures allow that. Five states, California, Hawaii, Illinois, New York and Washington, saw 50 or more health bills each, according to data from the National Conference of State Legislatures, or NCSL.” (Center for Public Integrity, 1.21.15)
- National Academy of State Health Policy, State, State Refor(u)m is designed to support a listserv community of state officials working to implement federal health reform legislation.
- National Governors Association, Health Reform Implementation is a central resource for state leaders about health reform implementation.
- National Conference of State Legislatures, Health Reform Implementation
- Kaiser Family Foundation, The States provides a state-by-state view of health care reform implementation and news.
- Kaiser Family Foundation. State Health Insurance Marketplace Profiles. Detailed profiles of the status of reform in each state, including links to state exchange site and other materials.
- California HealthCare Foundation, Health Reform & Public Programs Initiative contains material on the impact of PPACA on California, but much of its content is applicable to many states.
- Health Care and You allows users to select a state to see how health reform is being implemented.
- The Affordable Care Act: Rating Factor Limitations. Explains how premiums will be set on exchanges, including the proposed standard age rating curve showing how they will vary based on single year of age.
Research and Analysis
Many of the on-line resources listed also provide links to in-depth research and analysis. The following sites contain research and analysis by the site’s hosting organization:
- Heritage Foundation, State Health Care Reform
- What is the Impact of PPACA on the States? (Urban Institute)
- What is the Evidence on Health Reform in Massachusetts and How Might the Lessons from Massachusetts Apply to National Health Reform? (Urban Institute)
- Constitutional Challenges (George Washington University)
- Cannon, M. The Cato Institute. 50 Vetoes: How States Can Stop the Obama Healthcare Law. (includes information about the role of states in the ACA).
- Daniel Béland, Philip Rocco and Alex Waddan. Obamacare Wars: Federalism, State Politics, and the Affordable Care Act. University Press of Kansas, 2016.