No One Willing to Own Insurance Responsibility of Exchange

The responsibility of assuming control of a health insurance exchange in Wyoming is turning into a game of political hot-potato.

The Wyoming Health Benefits Exchange Commission – a special committee created to study insurance exchange models — has recommended the Governor’s office take control of establishing a state insurance exchange.

Legislators, themselves unlikely to reach any consensus on exchange regulations, are at odds over how much authority to cede Gov. Matt Mead to oversee an exchange.

And the Governor’s Office is offering conflicting answers as to how much executive power it will wield should legislators fail to offer a directive during the upcoming 2012 Budget Session.

“We will have to wait and see what the governor wants to do,” said Elizabeth Hoy, the Governor’s Office health policy advisor. “And we will have to wait and see how the legislature wants to deal with us.”

There are concerns now that unless legislators act directly to bar an exchange, the Governor’s Office may implement the program through back-door executive-agency directives.

“Typically, when implementing a new program ahead of legislation, the executive branch secures services through contracts,  follows with agency rule making, and finally proposes legislation to ratify creation of the already established program,” said Regina Meena, a legislative policy analyst for Wyoming Liberty Group during testimony before the Joint Labor, Health and Social Services Committee on Tuesday.   “This method forces the legislature to undo what is done.”

“I think legislation would fail,” said Rep. Elaine Harvey, R-Lovell,  who serves as a co-chair of the Exchange Committee. “I do believe an exchange is a good idea… But we’re not anywhere close to that.”

Because Wyoming’s legislature meets in 2012 during biennial Budget Session guidelines, bills require a two-thirds super-majority to receive introduction in either house.

If Wyoming’s legislators agree to cede responsibilities for setting up an exchange to Gov. Mead, the issue will enter largely untested political waters. The Governor’s office could find itself in the potentially awkward position of establishing a program for which it is also petitioning against.

The federal Patient Protection and Affordable Care Act (PPACA) mandates states develop their own insurance-marketplace structures by 2013 or risk forfeiting control to federal agencies. But Gov. Mead has joined a 26-state lawsuit against the federal government challenging the U.S. Congresses’ right to require states to abide by the PPACA.

According to the lawsuit, the PPACA, “coerces States into accepting onerous conditions,” by threatening to withhold federal Medicaid funding and exceeds congresses’ enumerated powers by forcing individuals to purchase health insurance plans.

The multi-state challenge is expected to be ruled on by the U.S. Supreme Court during the summer of 2012.

“Many members of this Committee and the Legislature strongly oppose the (PPACA),” wrote Gov. Mead in a letter presented Monday to the Joint Labor Committee. “I share this opposition and will celebrate along with you when it is over turned. However, statutory deadlines and timelines for implementation of health benefit exchanges in the current law are such that we cannot afford to sit back and wait for a Supreme Court decision next summer.

“For these reasons, I strongly support the (Steering) Committee’s recommendations that Wyoming move forward with establishing some components of a state-run benefits exchange….”

Not all of the Steering Committee members, however, agree that an exchange should be established before a Supreme Court decision.

“The feeling I am getting from the public is until the lawsuits challenging the constitutionality of the PPACA are through, we can’t move forward,” said Alan Harris, a private-business representative on the Steering Committee.

“I haven’t seen much support in Wyoming for setting up an exchange,” noted Sen. Dan Dockstader, R-Afton.

In addition to promoting Gov. Mead’s use of executive powers to establish a new state exchange agency, the Steering Committee also recommended that its members be granted another year of state and federal funding to allow for further planning and studies.

The Steering Committee, composed of four legislators and 13 appointees of the governor, was created by legislators this year for the purpose of studying exchanges and providing a recommendation to the Joint Labor Committee members. The Steering Committee has received $40,000 in state appropriations and $800,000 in federal aid by way of Wyoming Department of Insurance federal grants applications.