HB 1273: Concerning the "health care opportunity and patient empowerment act"

House Bill 11-1273

Testimony to the House Health and Environment Committee
Robert Semro, policy analyst, the Bell Policy Center
April 26, 2011

My name is Robert Semro, and I am a policy analyst with the Bell Policy Center. The Bell is a non-partisan, non-profit organization dedicated to expanding opportunity for the people of Colorado.

The Bell Policy Center opposes House Bill 11-1273. This legislation is simply one component of a larger national strategy whose primary and express purpose is to create a legislative and legal basis for opting out of the Patient Protection and Affordable Care Act.

We believe that Colorado voters have already indicated an unwillingness to opt out of federal health care reform. Amendment 63 in November 2010 offered a close approximation to a referendum regarding the state's participation in the national health care reform law. The proposed amendment would have stopped federal intervention with respect to health care choices and would have overruled any law, state or federal, that required "individuals to buy insurance, join a health-care exchange or accept government-subsidized care."(1) Colorado voters, unlike those voting on similar amendments in Arizona, Oklahoma and Missouri, defeated the amendment 53-47 percent, with a difference of more than 104,000 votes.

In addition, Colorado has already produced a blueprint for health care reform in Colorado. In 2008, two years before passage of the Patient Protection and Affordable Care Act, the non-partisan Colorado Blue Ribbon Commission on Health Care Reform produced recommendations that shared similar policy goals and mirrored many of the major provisions of the current national health care reform law.(2)

Should compact legislation pass in the Colorado General Assembly, be approved by both houses of Congress and then successfully weather inevitable legal challenges, Colorado would no longer receive benefits resulting from the national health care reform law. In terms of policy and outcomes, an interstate compact would not represent a meaningful or practical alternative to that law, other than offering a vague promise that individual states will somehow find a way to address their health care problems. HB 1273 and the compact legislation it would help to create provide us with no tangible, detailed plan to reduce the number of uninsured in Colorado, reduce uncompensated care and cost shifting, improve health care outcomes, better manage premium and health care costs or replicate any of the potential benefits of the national law.

Furthermore, if the proposed interstate compact strategy were to reach its logical conclusion, health care in the United States would be composed of 50 separate, divergent and potentially ever-changing systems that would create a range of issues and problems we cannot even contemplate today. Additional provisions of this legislation, including the receipt of Medicaid funding through block grants without federal regulation or oversight and the purchase of insurance across state lines, could impose unintended and undesirable consequences for the citizens of Colorado.

As a matter of policy, interstate compacts are not a new idea. More than 200 compacts have been implemented since the ratification of the U.S. Constitution in 1788. In general, compacts have been used to manage waterways between states and to establish multi-state agencies to deal with issues ranging from environmental protection and waste disposal to cross-border adoption.(3) However, until now, compacts have not been created for the purpose of allowing states to exempt themselves from federal law.

Furthermore, in the 223 years that the "Compact Clause" has been in effect, very few compacts have been created to address issues related to health care.(4) Most of these compacts are narrow in scope and do not address management of a state health care system. Compacts have also been rejected as tools for managing the individual health insurance market between states.(5) Washington state's insurance commissioner in his 2008 Feasibility Study on Use of an Interstate Compact to Provide Individual Health Insurance concluded: "Until best practices are identified and agreed upon, using a multi-state compact to provide individual health insurance is not a viable solution to make individual health insurance more affordable or reduce the number of people who are uninsured."(6)

Finally, the core of this legislation would attempt to use Article I, Section 10 of the Constitution as the legal framework for opting out of the Patient Protection and Affordable Care Act. As we have seen in the letter presented to this committee by Professors Melissa Hart and Scott Moss at the University of Colorado Law School, those contentions may be based upon fundamentally incorrect assumptions. What we can be sure of is that this untried strategy will undoubtedly face legislative and legal hurdles at both the state and federal levels.

In summary, The Bell Policy Center believes that HB 1273, and the model legislation that it would seek to create, is merely one component of a larger and misdirected national strategy that in no way represents a practical alternative to national reforms and promises little in terms of real benefit for Coloradans. We urge you to oppose this bill, and thank you for the opportunity to share this testimony with you today.

End notes
1) The Wall Street Journal, Another Health-Care Obstacle Awaits in States, Jan. 20, 2010.

2) The Colorado Trust issue brief, Comparison of Provisions from Colorado's Blue Ribbon Commission for Health Care Reform and Federal Health Care Reform, October 2010.
3) Adam Winkler, professor of law, University of California at Los Angeles, Republicans' Latest Effort to Circumvent the Constitution: Interstate Compacts
4) Examples include, the Interstate Compact on Adoption and Medical Assistance, the Northern New England Medical Needs Compact, the Interstate Compact on Mental Health and the New England Compact on Radiological Health Protection.
5) Washington State Office of the Insurance Commissioner, Feasibility Study on Use of an Interstate Compact to Provide Individual Health Insurance, Dec. 1, 2008.
6) Ibid