Missouri Republicans who opposed Affordable Care Act see silver lining

Missouri Republicans who opposed the Patient Protection and Affordable Care Act played chicken with the federal government and won — even if the U.S. Supreme Court swerved a different direction than they thought it would.

Even as commentators were dissecting the court’s take on the individual mandate and the U.S. Constitution’s commerce clause, critics of the law in Missouri seized on the portion of the ruling that said the federal government can’t threaten to withhold existing Medicaid money from states that don’t comply with the law’s requirement to expand Medicaid eligibility.

The Republican-dominated Missouri Legislature has resisted implementing the law, calling it, as Lt. Gov. Peter Kinder put it, a “break the bank” provision. Without a penalty in place, it appears that such resistance is anything but futile.

“I think the one bright spot in the ruling is the repeal of the forced Medicaid expansion,” said Sen. Rob Schaaf, R-St. Joseph, a family physician and fierce critic of the health care law. “I’m not in favor of increasing the welfare state, and I see the ruling as a victory for states’ rights in that regard.”

The law requires states to expand their Medicaid programs by 2014 to cover all individuals under the age of 65 with incomes below 133 percent of the federal poverty line. The federal government would pay the full cost of that expansion for five years, but eventually states would have to pay a portion of the costs.

‘Gun to the head’

States that did not expand their Medicaid programs stood to lose all of their federal Medicaid funds under the law as it is written. But Chief Justice John Roberts’ majority opinion said that was “a gun to the head” of the states and struck it down.

“We have no way of knowing how many States will accept the terms of the expansion, but we do not believe Congress would have wanted the whole Act to fall, simply because some may choose not to participate,” Roberts wrote.

Robert Gatter, professor of law and co-director of the Center for Health Law Studies at Saint Louis University School of Law, said the ruling appears to leave the law as “an expansion with a carrot and no stick.”

“If a state elects to expand, it will get in exchange almost all of that paid for in perpetuity by the federal government, and if they choose not to participate, nothing would happen,” he said.

Gatter added that it’s not clear what will happen to low-income people who live in states that don’t expand Medicaid. Some will probably get exemptions from the law’s much-discussed (and, the court ruled, constitutional) mandate to buy insurance. But Gatter said more people will probably need to purchase private insurance as a result.

That could put them smack in the middle of a part of the health care law that wasn’t specifically addressed in last week’s ruling: the creation of a state-run health insurance exchange.

Exchanges

The Affordable Care Act encourages states to establish such exchanges to create an insurance marketplace for those people who don’t qualify for the expanded Medicaid but also don’t have private insurance. If states don’t create their own exchanges, the federal government will set one up for them. That option means the state loses control over the program, as well as the federal money that would come with it.

“If you give up authority as a state to shape and form your own exchange, you give up your opinion on what they ought to look like,” said Ann Marie Marciarille, a law professor who recently joined the faculty at the University of Missouri-Kansas City. “There’s a vanilla exchange, a chocolate exchange and a strawberry exchange,” she added. The choice for state governments, she said, was “OK, the federal government will make my ice cream cone for me, or I’ll pick my own flavor.”

Some lawmakers agree with that perspective.

“We have to maintain our unique marketplace,” said Rep. Chris Molendorp, R-Belton, who sponsored a bill this year that would have created an exchange he says won’t affect state general revenue. “The only way to do that is to create a state exchange and not allow the federal government to one-size-fits-all us.”

Sen. Joe Keaveny, D-St. Louis, agreed.

“There are individuals in the Legislature that purposely would not move forward on the health insurance exchange hoping the decision would strike down the [Affordable Care Act],” he said. “Now that that’s behind us, I think that the opportunity is there. We ought to move very quickly to implement one.”

But emboldened by the ruling, some lawmakers are reiterating their opposition to the exchanges.

“We didn’t want to create one in the beginning,” said Sen. Scott Rupp, R-Wentzville, who chaired a commission last year that studied the creation of a state-run insurance exchange. “So by our refusal to create one at this point, it actually was the correct play for the taxpayers.”

Schaaf, who sponsored an upcoming ballot measure that would bar the governor from creating an exchange by executive order, said if the federal government is “going to do one anyway, let them pay for it.”

“My understanding is the state exchange would have to meet all their criteria anyway, so really it’s not like we get to do something totally new and different than the federal government would do,” he said. “They call all the shots.”

Staff reporter Melissa Meinzer contributed to this article.