Utah

This article is part of the State Status and News series related to the Patient Protection and Affordable Care Act.

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.

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Stewart, Kristen. “Utah contemplates another suit over reform”. Salt Lake Tribune. March 30, 2010. Available online as of 2010-04-05.

With health care reform now a matter of federal law, will the lawsuit filed by Utah Attorney General Mark Shurtleff affect health care benefits for Utah's citizens? Will HR67, passed this year by Utah's legislature requiring the legislature to sign off on implemented programs make it harder for Utahns to take advantage of health care reform?

Many legal authorities who support health care say no, and believe that once people begin to reap the benefits of the program, public opinion will sway in favor of it. They may show this change of heart at the ballot box.

Most of the new law will not go in to effect until 2014. Attorney General Shurtleff believes there are legal issues with two parts of the policy, and claims this has nothing to do with politics. Those issues are the expansion of Medicaid, and the mandate that all citizens and legal residents must purchase health insurance. He is considering filing another suit against states setting up insurance exchanges and marketplaces.

In order to get the legislation stopped, the states filing suit must claim it does irreparable harm. Shurtleff says showing potential costs to states will do this. Legal scholars say states are not required to do the things Shurtleff is concerned about, although it would benefit the citizens. In fact, the state can do nothing.

The issue of reporting to the legislature could cost Utah some federal money. Budget cuts have depleted staff in many state agencies. With the reform legislation, there is a great deal of work to be done with fewer people doing it. Adding the need to report to the legislature for approval will complicate the process, and the possibility of missing deadlines could mean missing out on dollars.

Peek, Alison. “Will Utah suit affect health care reform?” The Examiner (Salt Lake City, UT). April 22, 2010. Available online as of 2010-04-22.

Utah isn't ready to dive into a temporary high-risk insurance pool created through the new health reform law until it gets some assurances the federal government will cover the costs.

Gov. Gary Herbert sent a letter Wednesday to Health Secretary Kathleen Sebelius questioning the financial feasibility of the $5 billion program, which is supposed to kick in at the start of July.

“I have strong concerns that the program is severely underfunded and will ultimately result in yet another unfunded mandate on our state,” he wrote.

State leaders have two options: they can take an estimated $40 million and manage the program or the federal government will step in and run it. Sebelius was hoping for an answer by Friday, though Herbert asked for more information before he made up his mind.

“Regardless of what a state decides, the bottom line for the American people is the same: uninsured Americans with pre-existing conditions will have access to affordable insurance,” said Jessica Santillow, spokeswoman for Health and Human Services.

Herbert's concerns stem from a non-partisan analysis by the chief actuary at the Center for Medicare and Medicaid Services. In a recent report, he estimated the $5 billion allotted for the high-risk pool wouldn't last through the end of 2012, even though the temporary program is supposed to exist until 2014.

The actuary said the health reform law would raise federal health costs, not lower them, which was a stated goal of the president.

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Sen. Orrin Hatch, R-Utah, a leading critic of the new wide-ranging law, shared Herbert's concern.

“At a time of sky-high budget deficits, it's critically important for the people of my state to understand whether the $5 billion that was included for this temporary high-risk pool program will be enough,” Hatch said, “and if not who will be footing the bill.”

Utah has its own high-risk pool that covers 3,700 people with disabilities and chronic illnesses. That pool, known as HIPUtah, doesn't meet all of the new federal requirements. State House Speaker Dave Clark said Utah may need a legislative special session in May or June to either tweak the existing program or create a new side-by-side program if the state decides to participate.

“We are considering our options and we need additional information from HHS before we make that decision,” said Herbert's spokeswoman Angie Welling.

Canham, Matt (mcanham@sltrib.com). “Guv worries about cost of high-risk health insurance pool”. (Utah) Salt Lake Tribune. April 28, 2010, 7:31 PM MDT. Available online as of 2010-04-29.

Gun Law Challenge

Unrelated to the PPACA, Utah is one of seven (7) states now challenging federal attempts to thwart the Second Amendment to the United States Constitution.

A total of nine (9) states (AL, AZ, ID, SC, SD, TN, UT, WV) are involved in the cited Montana case: the states' participation is significant when compared to state participation in the PPACA litigation.

Utah Attorney General Mark Shurtleff and six other states filed a brief in federal court in Montana on Monday, arguing that the federal government has no constitutional authority to regulate firearms manufactured and sold within their borders.

The friend-of-the-court brief seeks to bolster arguments made by the Montana Shooting Sports Association (MSSA) that legislation passed in that state exempts Montana-made guns from federal taxation, registration, licensing, marking or record-keeping requirements.

Utah adopted similar legislation last session. Tennessee, Arizona, Idaho, South Dakota and Wyoming have done so as well, asserting it as an exercise of their authority under the 10th Amendment to the U.S. Constitution.

The brief asks that court to recognize that “the 10th Amendment is not an empty promise to the states, but a vital guarantor of rights retained by the states, including the right to regulate purely intrastate activities.”

Alabama, Idaho, South Carolina, South Dakota, West Virginia and Wyoming joined in the Utah brief.

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Numerous other organizations also have sought to submit briefs supporting the Montana law. The court has given entities until April 23 to file their briefs. The Justice Department will have until May 18 to file a response.

“With few viable avenues to assert their political will,” Shurtleff's brief says, “states that have enacted laws similar to Montana's Firearms Freedom Act are clamoring to restore the proper balance between state and federal government power.”

Gehrke, Robert. Salt Lake Tribune. April 13, 2010. Available online as of 2010-04-29.