May 28, 2018
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Empower Maine to serve the health of Mainers

By Amy Fried, Special to the BDN

Getting seriously ill is scary and treatment is often expensive. As the state goes forward after the November elections, health care again is on the agenda. In addition to wanting to change Maine’s Dirigo program, Gov.-elect Paul LePage has discussed joining a lawsuit to overturn the federal health reform law, the Affordable Care Act, or ACA.

With federal courts split on the act’s constitutionality, the case appears to be headed to the Supreme Court, making a lawsuit quite costly. If funds come out of the attorney general’s resources, there will be less available for other needs, such as fighting drug trafficking. Should the administration decide to finance it elsewhere, it would have to turn to a state budget under pressure, of which about 80 percent goes to education and health care.

Moreover, winning such a case is by no means a sure thing. While a Virginia court earlier this week ruled negatively, two other federal courts have found the ACA constitutional and 12 others dismissed cases against the law because the judges believed they had no merit.

The Virginia judge ruled against only a single provision — the mandate — and did not stop its implementation. Even if opponents of the ACA eventually were to prevail at the high court, it is unlikely that the entire law would be tossed out and, in the meantime, a number of provisions would have gone into effect.

One reason Mr. LePage opposes the ACA is that it limits what states can do. The ACA has many provisions, including expanding health clinics; supporting doctors who work in rural, underserved areas; continuing parents’ insurance up to age 26; covering more people under Medicaid; requiring people to have health care insurance; subsidizing individuals’ health insurance costs; necessitating coverage for exams and screening; and preventing insurance companies from refusing customers who have pre-existing conditions. To provide citizens information about the insurance plans that can be purchased, each state is supposed to set up a health insurance exchange by 2014.

Maine could avoid litigation costs for an uncertain outcome while retaining a good deal of autonomy. One of the lesser-known portions of the ACA enables states to put forward their own means of delivering health coverage. Starting in 2017, states can propose alternative ways of covering the same percentage of state residents. This has both policy and constitutional implications.

Maine does not have to follow the basic model laid out in the health reform law but can craft its own approach. By explicitly granting that states can develop different means of providing health care and coverage, the ACA undercuts the legal argument that it unconstitutionally limits state action.

Another potential path promises policy creativity. The bipartisan Empowering States to Innovate Act, co-sponsored by Sens. Scott Brown of Massachusetts and Ron Wyden of Oregon, would enable states to pursue alternative approaches three years earlier, beginning in 2014. If passed, rather than setting up the health care exchanges required by the ACA and then changing to something else, the state could go right to its own policy mechanism.

Massachusetts would likely build on its existing system, passed under Republican Gov. Mitt Romney, which has a lot in common with the core elements of the Affordable Care Act. Oregon, which has a public plan citizens can purchase, may tweak its system. Surely our governor and legislators will have their own ideas.

Health policy is quite complex, and crafting and implementing new elements will take expertise, leadership and public input. Maine can move ahead while avoiding being mired in a costly fight.

Not only is it quite unlikely that the entire law will be ruled unconstitutional, opponents cannot expect it to be repealed by Congress. Virtually every provision of the ACA is popular except for the mandate. When asked about whether they wish to repeal, expand or keep the act, only about 40 percent support full repeal; and any repeal effort would face a legislative gantlet in a Senate where filibusters are common.

Compared to filing a lawsuit, passing the Empowering States to Innovate Act would be both far less expensive and far more effective in producing a health policy that serves Maine residents.

Amy Fried is an associate professor of political science at the University of Maine.

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