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Gregoire pushes for implementation of health law in state

Participation of AG in suit should not be a hurdle, she says

By Kathie Durbin
Published: March 2, 2011, 12:00am

Democratic Gov. Chris Gregoire asserted in a federal court brief Monday that Attorney General Rob McKenna’s participation in a Florida lawsuit challenging national health reform doesn’t reflect the state of Washington’s position — and shouldn’t stand in the way of the law’s implementation.

McKenna, a Republican and likely candidate for governor in 2012, is one of 26 state attorneys general who have signed on as plaintiffs in a suit challenging the constitutionality of the individual mandate in the 2010 Affordable Care Act — the requirement that all Americans enroll in a health insurance plan or pay a penalty.

The Obama administration has asked U.S. District Judge Roger Vinson to clarify his Jan. 31 ruling striking down the health reform law in its entirety. Clarification is necessary, the Department of Justice wrote, “so that defendants know how to proceed in this litigation and in implementing the act, and to dispel the confusion of the public and many plaintiffs regarding their rights and obligations going forward.”

Three federal district judges have ruled that the law’s individual mandate is constitutional, while two have struck it down. Vinson ruled that the whole law is unlawful because the mandate is central to its functioning.

The White House has appealed the adverse rulings to two appeals courts rather than asking the Supreme Court to review the contradictory rulings on an expedited basis.

Last week, Washington’s McKenna joined the other state attorneys general in opposing the administration’s request for clarification on whether Vinson’s ruling is, in effect, an injunction that would halt implementation of the law in every state.

On Monday, Gregoire weighed in on the issue as well. In her brief, she argued that McKenna’s decision to become a plaintiff in the case should not stop Washington from implementing the law.

Already in effect are provisions that require family policies to cover adult children to the age of 26; prohibit health insurance policies from denying coverage to young children with pre-existing conditions; provide tax breaks for small businesses that provide health coverage to their workers; give seniors a $250 rebate to help offset their out-of-pocket costs for prescription drugs under the “doughnut hole” provision of Medicare Part D; and require states to set up high-risk pools to cover adults who can’t find other insurance.

The state has a $1 million federal grant to help with the cost of implementing the law over the next several years.

The prospect that implementation could be halted “would be particularly inappropriate,” Gregoire wrote, “when the governor of Washington is not being represented by the attorney of the state here and, in fact, welcomes further implementation of the act in the state.”

Karina Shagren, the governor’s spokeswoman, said it’s important that the state’s work go forward.

“We’ve already implemented some very positive things when it comes to the Affordable Care Act,” she said. “We want to make sure the judge realizes what has been implemented, how the citizens of Washington have benefitted, and that it could be very disruptive to halt implementation now.”

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Waiting on appeal

Janelle Guthrie, a spokeswoman for McKenna, said the state attorneys general want the U.S. Supreme Court to consider the constitutionality of the law as quickly as possible in the face of conflicting federal court rulings.

“We are supporting expedited review by the U.S. Supreme Court,” Guthrie said. “We’re kind of wondering why the Department of Justice hasn’t moved forward in either requesting a stay or making a motion to appeal, so we can all continue the work of creating a health care system that’s affordable and accessible to all Americans without violating their rights.”

President Obama’s announcement Monday that he supports a bill that would allow states to develop their own plans for providing access to affordable health insurance by 2014 added a new wrinkle to the debate. Under the bipartisan proposal, states could develop alternatives to state exchange systems and the individual mandate as long as they provide coverage that is as comprehensive and affordable as the coverage provided under the federal law.

Until now, the administration has taken the position that the plan would unravel without the individual mandate because insurance companies insisted on it in exchange for agreeing to drop provisions in their policies that allow them to deny coverage to people with pre-existing conditions.

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