Oklahoma State Rep. Mike Ritze is a foot soldier—one of hundreds— in a passionate war over the Affordable Care Act that is reigniting as state legislatures convene across the country.
The Republican lawmaker, a family doctor, has stood behind three anti-Obamacare bills supported by conservative groups in Oklahoma and other states. None has made it into law, but Ritze plans to pick up the fight in the 2015 legislative session that convenes in the Sooner state next month.
“We need to do everything we can to try and reverse this,” said Ritze, who practices in Broken Arrow. “We can make it harder to enforce if the states get together…to attack it on all fronts.”
In Washington, there’s been little consensus on modifying the health reform law—short of repeated votes in the House to kill or cripple it. That might change as Republicans take control of the House and Senate, though what fixes, if any, Congress might prescribe—and whether any can get a signature from the President— aren’t clear.
But 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.
“The number of bills is remarkable,” said Richard Cauchi, a NCSL health legislation expert.
It’s not yet clear how many will be reconsidered in 2015 — many states are just kicking off their legislative sessions— but few expect any substantial retreat from the battlefront.
“There are definitely strong opposing opinions on the topic of the Affordable Care Act,” said Cauchi.
A bit of everything
Some bills seek to “nullify” the law or find creative ways to hinder its enforcement, while others are perennial filings inspired by tea party activists and other early foes of Obamacare, such as the John Birch Society, a review by the Center for Public Integrity found.
Dozens of anti-Obamacare bills appear to take their cues from a handful of activist groups – some well financed at least partly by big corporate donors and others run on shoestring budgets.
On the flip side, scores of bills to bulk up Obamacare have also landed in state hoppers, especially last year. Most would either expand eligibility for Medicaid, the health care plan for low-income people funded by states and the federal government, or require insurers to cover more medical services than the Affordable Care Act currently requires.
NCSL data show that to date pro-Obamacare forces have had the upper hand in bills actually signed into law. In all, more than 75 Obamacare-related bills were signed into law in 2014. About 50 moved the law forward, mostly by expanding Medicaid, while the rest appeared to impede the reach of Obamacare. Lawmakers in New York, for instance, extended insurance benefits to veteran horse racing jockeys in the state, while Tennessee and Georgia prohibited Medicaid from growing in size.
But the tide may be shifting. Conservative groups which have tried to peck away at the law say they feel energized by Republican gains in state legislatures in 2014 mid-term elections. Republicans now control 69 of 99 chambers in the states, according to the Republican Legislative Campaign Committee.
“Everyone has focused on the gains in (Washington), but there were quite a few gains at the state legislative level by the GOP,” said Curtis Ellis, a spokesman for Competitive Governance Action, a Texas group campaigning to get rid of the Affordable Care Act.
Style and substance
Harvard University sociologist Theda Skocpol, a supporter of the law, said that some of the anti-Obamacare bills are “largely symbolic” and stand little chance of passage, but that others can put significant pressure on state governments.
Congress passed the Affordable Care Act in 2010 to help pay for health care coverage for millions of uninsured Americans. But the law leaves some key decisions on how to do so – such as what benefits to offer and how they should be marketed – partly up to the states.
State lawmakers also are awaiting the Supreme Court’s decision over the legality of subsidies paid in states which did not set up their own exchanges. A ruling in the case, King v. Burwell, is due this summer and could radically shake up insurance markets.
That would no doubt result in a new flood of proposals. But state lawmakers haven’t been shy about weighing in to date.
Among the trends:
- More than 200 bills, most sponsored by Republicans, have attacked Obamacare’s foundation from different flanks. At least 25 bills seek to repeal or “nullify” it, while others would offset any fines collected from people who refuse to purchase health insurance, or otherwise limit the law’s reach. A “model” bill considered in at least 11 states would forbid state employees from enforcing any part of the law, in five states threatening those who do so with prison terms. Most didn’t pass.
- At least 85 bills would tinker with insurance exchanges set up by the states or the federal government to sell policies. Just over half would choke off funding or inhibit exchanges by cutting off their spending on marketing or advertising. Four bills would stop insurers from taking any federal subsidies paid under the law, though none passed. Overall, most of these bills measures failed to get through.
- More than 55 bills filed in about two dozen states tried to tighten oversight of “navigators,” who assist people in choosing a health plan that best fits their needs. Obamacare supporters see these bills as little more than a ruse to disrupt the law, and most did not pass. Yet six states in 2014 passed laws to tighten training standards or bar convicted felons from getting these jobs.
- At least 26 states have taken up bills that would petition Congress to let states make their own health-care financing decisions. The campaign, which critics consider a longshot, takes the view that Congress overstepped its bounds in passing Obamacare. Nine states have joined these health care compacts, data show. Nine compact bills were put forward in six states during 2013 and 2014, but only Kansas approved one, in 2014.
- While opponents hope to make headway in dismantling the law, boosters believe public acceptance of Obamacare is on the rise as more folks take advantage of its benefits. A tracking poll by the Kaiser Family Foundation showed a small drop in “unfavorable” views of the law over the past year, to 46 percent in the latest survey.
- More than 100 bills, most sponsored by Democrats, would expand Obamacare by covering more lower-income people under Medicaid or requiring insurers to cover new medical services. Most didn’t pass. Some two dozen bills would guarantee autism care for school-age children and others, for instance.
Improving the odds
Oklahoma legislator Ritze, 66, whose three bills to stymie the health care law have failed thus far, is hoping things will change in the 2015 session that opens in February.
The doctor, who said he has delivered more than 2,000 babies in nearly four decades of small-town practice, opposes Obamacare as “socialized medicine.” He argues it will prompt “rationing” of health care and wants to find ways to nullify the law.
Ritze, who likened his efforts to a military strategy, also has taken aim at some obscure pieces of the health reform law, such as a provision allowing social workers to make home visits to new or expectant parents.
“It’s a tremendous overreach by the federal government to come into your home,” he said. Ritze sought to ban the practice in Oklahoma after hearing of it through the John Birch Society, an early foe of Obamacare.
Similar bills to stop “involuntary” home visits have turned up in at least six other states, but none has succeeded.
“Obamacare forces Americans to buy products and services they may not want, has the potential to be used against parents via home visitations, and stands in between doctors and their patients,” Bill Hahn, a spokesman for the John Birch Society, said by email.
One high-profile group fighting Obamacare in statehouses is the American Legislative Exchange Council, or ALEC, which flexes its muscle with model bills on issues ranging from environmental regulation to the minimum wage.
The “free-market” group, says it works to “advance limited government” through partnerships with state lawmakers and the private sector. It has declined to name its funders, though news accounts have cited some major corporations and a foundation run by billionaire industrialists Charles and David Koch.
ALEC favors a “Health Care Freedom Act” which, among other things, would suspend the business licenses of insurers that accept “any remuneration, credit or subsidy” paid under the Affordable Care Act. The measure was introduced in Kansas, Missouri and Ohio, but didn’t pass.
ALEC also wants to shield state residents from the law’s reach. Though none succeeded, bills in five states read: “no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.” ALEC has tried to insert that phrasing into state statutes as far back as 2010.
ALEC also wants to require that state Attorneys General “preserve the rights and property of the residents of the state” by pushing back against the health care law in court. At least 16 such bills have been filed in 11 states, typically requiring the attorney general to defend citizens subjected to fines or “harmed” in any way by the law, among other things. ALEC-themed bills to nix Medicaid expansions have been introduced in at least nine states. Most didn’t pass.
ALEC spokeswoman Molly Fuhs said the group’s board, which includes 24 state legislators, kicks around ideas for model legislation and passes them on. She said ALEC members “feel strongly” about health care and are “looking for best ways to deal with it.” ALEC has a foil in the State Innovation Exchange, which says it helps advance “progressive legislation” in the states. The group has yet to write its own model bills, according to executive director Nick Rathod. He expects to be playing defense over the next few years to stop “rollbacks” of Obamacare in the states and predicts an “all-out assault” on the law from Republicans.
“They see an opportunity. If it were them I would be taking the opportunity, Rathod said.”
The Council of State Governments also offers up “suggested” state legislation, such as a bill to permit residents of one state to buy polices from out-of-state insurers. A dozen bills to do that have been considered, but just three passed.
Not all the activist groups in the fray are easily pigeonholed, or appear to be deep-pocketed.
The Tenth Amendment Center has found sponsors in at least 14 states for its “model” bill which argues that Obamacare “interferes” with the right of the people “to regulate health care as they see fit.” The law should be “nullified” under the 10th Amendment to the U.S. Constitution, according to founder Michael Boldin.
Nullification drives are often derided as unconstitutional given the supremacy of federal over state law, but Boldin thinks the tide is turning.
“A lot of people seem to think if the feds do something there’s no way to stop it. This is absolutely absurd,” said Boldin, who said he runs the 10th Amendment Center from the living room of his Los Angeles apartment.
Though he concedes detractors label his group as “crazies,” he points to marijuana as an issue that has split state and federal governments much as he would like to see happen with Obamacare.
While federal law makes pot illegal, a handful of states are debating, or have moved ahead with, bills to legalize the weed or tax and regulate its sale for medicinal use.
Boldin said adversaries are coming at the health reform law from “multiple directions,” with a range of tactics such as discouraging state insurance officials from enforcing key provisions, or by extending tax credits to cover any fines levied against people who refuse to buy insurance.
Along these lines, ten bills filed in five states would outlaw spending on advertising or marketing by the exchanges. “That would pull the rug out from under it,” Boldin said.
Not so fast, argues Claire McAndrew of Families USA, a staunch advocate of the law. She said state bills “wildly out of compliance” with federal law can’t stand court scrutiny and may amount to “grandstanding” by opponents. In one case, a federal district court in January 2014 struck down a Missouri law tightening standards on navigators, though the state is appealing.
Harvard sociologist Skocpol said restricting the exchanges may compel federal officials to sue to enforce their will, which in turn might make it harder for the law to take hold.
“It’s true that without any cooperation from the states, it’s very hard for ordinary citizens to find out what their options are,” Skocpol said.
A bill in Georgia, which did not pass, would have made it a felony punishable by a minimum of a $1,000 fine to five years in prison for any state employees found guilty of cooperating with the law. A similar bill cleared the South Carolina House in 2014, but with the criminal penalties removed.
Some legislators want their colleagues to get a taste of their own medicine by demanding that they shop for their own coverage on the exchanges.
Illinois Rep. Darlene J. Senger, a Republican and licensed financial advisor from Naperville, in May introduced a bill to make her fellow politicians “live by the same set of rules that they impose upon those they claim to represent.” Similar bills have been advanced in Oregon, Kentucky and California.
The Health Care Compact Alliance attacks Obamacare from yet another flank. The Compact is a project of Competitive Governance Action, which argues that problems “should be solved by the smallest, least centralized, most local authority that may effectively address the matter.”
The compact argues the federal government has “preempted state laws with respect to health care, and placed increasing strain on state budgets, impairing other responsibilities such as education, infrastructure and public safety.”
States that join these compacts would seek to “suspend by legislation the operation of all federal laws, rules, regulations and orders regarding health care.”
The compact concept got a boost when Kansas Gov. Sam Brownback signed enabling legislation in April of 2014. Brownback, a Republican, said at the time that the compact “could play an important role in preserving and enhancing Medicare for Kansas seniors.”
Congress must give up its authority over Medicare for the compacts to have any impact. Critics predict disastrous results should that occur, however. Larry Weigel, of Kansans to Preserve Medicare, said the compacts would create a “wild west of for-profit competition” in state health insurance markets. “Nobody I talked to, not one person, wants Kansas to take over Medicare,” he said. “What Medicare people want is less confusion and less choice.”
The Health Care Compact Alliance was co-founded by Texas mega builder Leo Linbeck III.
Ellis, the Texas group’s spokesman, wouldn’t identify where its money comes from, except to say that none was from “any individual or organization” in the health care or insurance industry.
“We are very engaged with grassroots activists,” Ellis said, adding his group is “organized and professional people who have experience in political issues campaigns for decades.”
Scores of Obamacare-related bills introduced by lawmakers in state legislatures take their cues from “model” legislation written by advocacy groups, in some cases using identical language. This model bill seeks to nullify the law.
Tenth Amendment model bill
SECTION 1. The legislature of the State of ____________ finds that: 1. The People of the several states comprising the United States of America created the federal government to be their agent for certain enumerated purposes, and nothing more. 2. The Tenth Amendment to the United States Constitution defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government, and all power not delegated to the federal government in the Constitution of the United States is reserved to the states respectively, or to the people themselves. 3. The assumption of power that the federal government has made by enacting the “Patient Protection and Affordable Care Act” interferes with the right of the People of the State of _____________ to regulate health care as they see fit, and makes a mockery of James Madison’s assurance in Federalist #45 that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.” SECTION 2. NEW LAW, PROHIBITION ON ENFORCEMENT, PARTICIPATION, AND MATERIAL SUPPORT IN CERTAIN FEDERAL ACTS
- A new section of law to be codified in the [STATE] Statutes as Section [NUMBER] of Title [NUMBER], unless there is created a duplication in numbering, reads as follows:
A. Notwithstanding any law, regulation, rule or order to the contrary, no agency of this state, political subdivision of this state, or employee of an agency or political subdivision of this state acting in his or her official capacity, or corporation providing services on behalf of this state or a political subdivision of this state shall: (1) Enforce any federal act, law, order, rule or regulation of the federal government of the United States designed to give effect to the Patient Protection and Affordable Care Act, signed by President Barack Obama on March 23, 2010. (2) Provide material support, participation or assistance in any form, with any federal agency or employee engaged in the enforcement of any federal act, law, order, rule, or regulation of the federal government of the United States designed to give effect to the Patient Protection and Affordable Care Act. (3) Utilize any assets, state funds or funds allocated by the state to local entities on or after (DATE), in whole or in part, to engage in any activity that aids a federal agency, federal agent, or corporation providing services to the federal government in the enforcement of any federal act, law, order, rule, or regulation of the federal government of the United States designed to give effect to the Patient Protection and Affordable Care Act.
Mississippi S.B. 2643 (as introduced)
SECTION 1. The Legislature of the State of Mississippi finds that: (a) The people of the several states comprising the United States of America created the federal government to be their agent for certain enumerated purposes, and nothing more. (b) The Tenth Amendment to the United States Constitution defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government, and all power not delegated to the federal government in the Constitution of the United States is reserved to the states respectively, or to the people themselves. (c) The assumption of power that the federal government has made by enacting the “Patient Protection and Affordable Care Act” interferes with the right of the people of the State of Mississippi to regulate health care as they see fit, and makes a mockery of James Madison’s assurance in Federalist #45 that the “powers delegated” to the federal government are “few and defined,” while those of the states are “numerous and indefinite.” SECTION 2. Prohibition on enforcement, participation and material support in certain federal acts. (1) Notwithstanding any law, regulation, rule or order to the contrary, no agency of this state, political subdivision of this state, or employee of an agency or political subdivision of this state acting in his or her official capacity, or corporation providing services on behalf of this state or a political subdivision of this state shall: (2) Enforce any federal act, law, order, rule or regulation of the federal government of the United States designed to give effect to the Patient Protection and Affordable Care Act, signed by President Barack Obama on March 23, 2010. (3) Provide material support, participation or assistance in any form, with any federal agency or employee engaged in the enforcement of any federal act, law, order, rule or regulation of the federal government of the United States designed to give effect to the Patient Protection and Affordable Care Act. (4) Utilize any assets, state funds or funds allocated by the state to local entities on or after July 1, 2014, in whole or in part, to engage in any activity that aids a federal agency, federal agent, or corporation providing services to the federal government in the enforcement of any federal act, law, order, rule or regulation of the federal government of the United States designed to give effect to the Patient Protection and Affordable Care Act.
One issue squarely in the sights of critics: the navigator program, which helps people shop for insurance coverage. In September 2014, federal health officials announced $60 million in navigator grants. The Los Angeles Times reported in January 2014 that California’s exchange had allowed 31 people with criminal records to serve as enrollment counselors. An exchange official defended the hires, telling the newspaper they had “rehabilitated themselves.”
Led by the conservative group ALEC, critics contend navigators aren’t screened to make sure they can be trusted with private medical and financial information gathered to assist people in picking a health plan.
Lawmakers in six states tightened oversight of the navigators, but these bills failed in more than 20 others.
In June, Louisiana ordered criminal background checks for navigators to “avoid substantial risk to the health, safety and welfare of the people of this state.” By contrast a bill pushed by six California Republicans to bar anyone convicted of a “felony
crime of dishonesty or breach of trust” failed to gain traction there. The Center for Public Integrity reported in 2013 that critics in some states have seen these bills as an attempt by insurance agents to smother competition. Many bills to crack down on navigators exempt insurance agents.
Ritze’s bill, which did not pass in Oklahoma, requires navigators to take a written examination. He said his bill could be “perceived” as stifling competition, but denied that was the intent.
“It’s a simple thing to make sure they are licensed and take training. That’s where that came from,” Ritze said. “A lot of these people are not fully trained and they gave bad advice.”
The attacks from the right have not deterred proponents from pressing ahead with their own measures.
Most of these bills add benefits under Medicaid or insurance policies. The NCSL database logged 27 bills in nine states that would guarantee coverage for autism spectrum disorder, or study the idea of doing so. Bills to do that were signed into law in four states.
Many of those measures follow model legislation scripted by Autism Speaks, a research and advocacy group founded in 2005 by the grandparents of a child with autism. It was launched with a $25 million donation from a friend of the couple, Bob and Suzanne Wright.
Since then, Autism Speaks has mushroomed into a forceful advocate energized by more than $68 million made from sponsored events and donations in 2013. More than a dozen companies, foundations and individuals gave at least $1 million that year, according to the group’s 2013 annual report. As its influence has spread, however, Autism Speaks also has come in for its share of criticism.
Lorri Unumb, the group’s vice president for state government affairs, said it works to ensure autism treatment is deemed an “essential” benefit. While Obamacare defines behavioral care as essential, federal officials have given states some leeway to define the full scope of these benefits.
While Autism Speaks employs some professional lobbyists, it relies primarily on families of children with autism to press its case. “It has been parent driven in all of the states,” she said.
“We’re primarily a science organization. The advocacy effort is a very small piece of our overall operation,” Unumb said.
Separate bills in the states seek to guarantee insurance coverage for other medical and mental health care, such as chemotherapy and substance abuse.
Though many bills add more people to the insurance rolls or take concrete steps to advance the Affodable Care Act’s impact, others are resolutions that simply express the will of the legislature. For instance, Illinois State Rep. La Shawn K. Ford, a Democrat from Chicago, believes Obamacare doesn’t go far enough in covering millions of uninsured Americans. He backed a resolution urging Congress to include undocumented immigrants.
It didn’t pass.
Austim Speaks, an advocacy and research group, has campaigned hard in the states to increase benefits for autism care and drafted its own model bill to do so.
Autism Speaks model bill
F.As used in this section: 1. “Applied behavior analysis” means the design, implementation, and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior. 2. “Autism spectrum disorder” means any of the pervasive developmental disorders or autism spectrum disorders as defined by the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders(DSM). 3. “Diagnosis of autism spectrum disorder” means medically necessary assessment, evaluations, or tests to diagnose whether an individual has an autism spectrum disorder. 4. “Behavioral health treatment” means counseling and treatment programs, including applied behavior analysis, that are: (a) necessary to develop, maintain, or restore, to the maximum extent practicable, the functioning of an individual; and (b) provided or supervised by a Board Certified Behavior Analyst or by a licensed psychologist so long as the services performed are commensurate with the psychologist’s university training and supervised experience.
- 5. “Health insurance policy” means any individual or group health policy or contract issued by an insurance entity subject to one of the following: [cite applicable statutes].
6. “Pharmacy care” means medications prescribed by a licensed physician and any health-related services deemed medically necessary to determine the need or effectiveness of the medications. 7. “Psychiatric care” means direct or consultative services provided by a psychiatrist licensed in the state in which the psychiatrist practices. 8. “Psychological care” means direct or consultative services provided by a psychologist licensed in the state in which the psychologist practices. 9. “Therapeutic care” means services provided by licensed or certified speech therapists, occupational therapists, or physical therapists. 10. “Treatment for autism spectrum disorder” means evidence-based care and related equipment prescribed or ordered for an individual diagnosed with an autism spectrum disorder by a licensed physician or a licensed psychologist who determines the care to be medically necessary, including but not limited to: a. behavioral health treatment; b. b. pharmacy care; c. c. psychiatric care; d. d. psychological care; and e. e. therapeutic care.
Hawaii S.B. 2054 (as introduced)
(m) As used in this section, unless the context clearly requires otherwise: “Applied behavior analysis” means the design, implementation, and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relations between environment and behavior.
- “Autism service provider” means any person, entity, or group that provides treatment for autism spectrum disorders.
“Autism spectrum disorders” means any of the pervasive developmental disorders or autism spectrum disorders as defined by the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. “Behavioral health treatment” means evidence based counseling and treatment programs, including applied behavior analysis, that are: (1) Necessary to develop, maintain, or restore, to the maximum extent practicable, the functioning of an individual; and (2) Provided or supervised by a board-certified behavior analyst or by a licensed psychologist so long as the services performed are commensurate with the psychologist’s formal university training and supervised experience. “Diagnosis of autism spectrum disorders” means medically necessary assessments, evaluations, or tests conducted to diagnose whether an individual has an autism spectrum disorder. “Pharmacy care” means medications prescribed by a licensed physician or registered nurse practitioner and any health-related services that are deemed medically necessary to determine the need or effectiveness of the medications. “Psychiatric care” means direct or consultative services provided by a licensed psychiatrist. “Psychological care” means direct or consultative services provided by a licensed psychologist. “Therapeutic care” means services provided by licensed speech pathologists, registered occupational therapists, licensed social workers, licensed clinical social workers, or licensed physical therapists. “Treatment for autism spectrum disorders” includes the following care prescribed or ordered for an individual diagnosed with an autism spectrum disorder by a licensed physician, psychiatrist, psychologist, licensed clinical social worker, or registered nurse practitioner if the care is determined to be medically necessary: (1) Behavioral health treatment; (2) Pharmacy care; (3) Psychiatric care; (4) Psychological care; and (5) Therapeutic care.”
How much has been spent on lobbying and campaign contributions by Obamacare combatants—and which side will prevail—is anybody’s guess. Denise Roth Barber, managing director of the National Institute on Money in State Politics in Helena, Montana, said “we know it (Obamacare) is “being debated extensively at the state level.” But she added: “nobody is able to parse out how much is spent on this or that bill.” She said states are “light years” away from being able to do so.
Predictions on the fate of Obamacare in the states also varies widely.
Some observers predict ideological opposition will crumble in the face of mounting pressure from the business community, including hospitals and insurers, which stand to profit from Medicaid expansions.
The Kaiser Family Foundation, which studies health policy issues, keeps a running tally that shows 28 states have agreed to enlarge Medicaid, some several years ago. These expansions are “under pretty active discussion” in seven others, said Kaiser official Robin Rudowitz.
She said that the federal government’s decision to pick up much of the tab gives wavering states an “incentive” to be thinking about moving forward with Obamacare “sooner rather than later.” The law commits the feds to pay all of the costs of expanded Medicaid eligibility through 2016, slowly scaling down to 90 percent in 2020 and beyond.
“There’s a lot of federal money on the table,” she said.
McAndrew, of Families USA, said lawmakers on both sides may find some common ground. She cited consumer protections, such as requiring that insurance companies give patients accurate, up-to-date lists of the doctors and hospitals on their rolls.
“We could see some progress,” she said. “It’s not all gloom and doom.”
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