SALT LAKE CITY — Opponents say there's little right with federal health care reform legislation, and some now say key elements of the historic measure could be unconstitutional to boot.
Amid claims that the reform movement is about politics instead of improving health care, U.S. Sen. Orrin Hatch, R-Utah, has joined party colleagues and several Utah lawmakers who allege the bill in effect gives Congress authority it doesn't have under the Constitution.
State Attorney General Mark Shurtleff said at a gathering of health care providers last month that the underlying principle of the reform is to increase access to care and insurance coverage. "But mandating that everyone purchase a plan is clearly outside Congress' parameters. No one can be mandated by the federal government to buy anything."
Rep. Rob Bishop, R-Brigham City, believes the reform package is loaded with legal pitfalls and juggling of agency authority and responsibilities. He said the issue over equality among the states for Medicaid insurance funding from the federal government smacks of being unconstitutional as well.
The question of Medicaid equity surfaced during the Senate debate over the health care bill, which barely passed just before Christmas. Sen. Ben Nelson, D-Neb., put a condition on his heavily lobbied vote in favor of the bill that Nebraska receive 100 percent of federal matching funds for the expanded Medicaid insurance plan in the reform bill.
No other state now gets 100 percent.
"As a former governor, I've long fought against unfunded federal mandates, which force Washington rules on states with little or no money to pay for them," Nelson said.
Proponents say Hatch, Shurtleff and Bishop are employing strategies from a well-used playbook.
Making a constitutional issue of health care reform is a tactic used against reform for more than half a century, said Melissa Thomasson, a health care economist at Miami University in Ohio.
"It's cloaked in fear that it's just another form of socialized medicine, which actually hasn't been proposed for 70 years," Thomasson said. "That allegation is usually followed by charges that the reforms contain hidden changes that are either unAmerican or unconstitutional or both."
And it has worked like a charm, stopping previous efforts in their tracks, she said.
Shurtleff said he's not being trite or negative for negative's sake. The mandate that everyone buy into an insurance plan — there are roughly 43 million Americans, including about 380,000 Utahns who have either lost or can't find medical insurance — is unconstitutional because Congress cannot force people to buy anything.
"I just don't see how that doesn't step over the line," he told a group of Utah health care providers last month.
Lincoln Nehring, a local health care policy expert on Medicaid and Medicare with the Utah Health Policy Project, believes history, court rulings and common sense rule out any constitutional violations in the reform proposal.
The mandate that people buy into an insurance plan is covered by the Commerce Clause, he said. A Web-based federal health care exchange that Hatch says is unconstitutional would be if the reform didn't allow states to opt out if they choose, Nehring said.
The question over Medicaid equity is a fact of life among states and getting 100 percent matching funds for Nebraska is a publicity stunt, he said. There has always been wide disparity among states, with matching funds ranging from 50 percent of what a state puts in to around 80 percent of state appropriations.
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