The federal lawsuit challenging the constitutionality of health care reform may take a new turn in Utah.
State Attorney General Mark Shurtleff is contemplating also challenging the federal mandate that states create exchanges, which are marketplaces for purchasing health insurance. Utah is one of two states that already have exchanges, and the federal government has no right to tell Utah how to run it, contends Shurtleff.
"Now it's a sleek, streamlined program with only a few full-time employees running it," said Shurtleff. "The federal requirements say you have to do it differently. We think that's unconstitutional, for elected federal officials to tell state elected officials what to do."
Shurtleff hasn't decided if, or when, he'll file. But he said it could come as a separate cause of action within the lawsuit filed earlier this month by 13 states in Florida, or as a sister lawsuit in Utah's federal court.
He has the backing of House Speaker Dave Clark, R-Santa Clara, the architect of the Utah Health Exchange. "We've had no specific discussions about this," said Clark. "But anything we can do to help Utah control its own destiny is the right step forward."
But an advocate for reform and a legal scholar say Shurtleff's court challenge is a waste of time.
It could be argued that requiring state governments to create and operate exchanges exceeds Congress' constitutional authority, said Brigham Young University law professor Frederick Gedicks.
"But the state has a choice," he said. "It doesn't have to do that. It can drop out of Medicaid if it doesn't want to do that."
Also, if a state declines to start one, Uncle Sam can step in and start one himself, said Lincoln Nehring, an attorney and policy analyst at the Utah Health Policy Project.
Clark, meanwhile, has a different strategy: tout Utah's reform efforts in the hopes of shaping federal regulation. "It's critical to share our experience and insight. We've been at this for three years," said Clark.
Next week and the following week, Clark will speak about Utah's exchange at events sponsored by the National Conference of State Legislatures, Heritage Foundation and World Health Congress.
Like the federally mandated exchanges, which states are supposed to open by 2014, Utah's Web-based version offers a way for small companies to pay a fixed amount toward their employees' medical coverage, instead of buying the coverage directly for them. The workers then shop for a plan on the exchange. If it costs more than the employer kicks in, the worker pays the difference using pretax dollars.
But, so far, the exchange has been plagued by low enrollment and high premiums. And the insurance sold there is not truly portable. Lawmakers passed a fix-it bill to help make the plans more affordable, but it doesn't go into effect until January.