How Prop E did more than just stop Gov. Nixon from creating a state health exchange

Jan 30, 2013

 A new report by an MU policy analyst warns about the consequences of a ballot measure passed by Missouri voters last November.

It all has to do with the Affordable Care Act. You might recall that under that law, every state is required to have an up-and-running health-insurance exchange by October this year. The exchange is basically an online marketplace where eligible individuals and small business owners can compare and purchase federally subsidized health insurance with competitive rates.

But, Missouri voters may recall reading the following proposition in their ballots back in November:

“Shall Missouri Law be amended to prohibit the Governor or any state agency, from establishing or operating state-based health insurance exchanges unless authorized by a vote of the people or by the legislature?”

That was Proposition E. A little more than sixty percent of Missouri voters said “yes” to the proposition. The new law prohibited the Missouri government from submitting a plan for the state-based exchange by the Nov. 16 deadline. Despite that, Missouri is still required to have a health exchange up and running by October, with everyone getting full coverage by 2014. 

This leaves the state with two options: create a state-federal partnership exchange, or let the federal government step in and create the exchange. Missouri is unlikely to meet the Feb. 15 deadline to file a blueprint of a state-federal partnership exchange, and policy analysts say it looks likely that the federal government will have to create an exchange for Missouri for the next year. 

But there's a less discussed part of Proposition E, or Senate Bill 464 -- the ballot measure as it is known in the Missouri General Assembly. 

"[The bill] restricted state employees and agencies from participating and cooperating with the federal exchange," said Bridget Kevin-Myers, a research assistant professor at MU’s Institute of Public Policy. What’s more, if a state employee dares to cooperate with the feds on the health exchange, Senate Bill 464 makes it legal for a taxpayer or a lawmaker to file suit.

“I think there are there some state workers that are going to be nervous," said Ryan Barker, director of health policy at Missouri Foundation for Health. But Barker also pointed out another caveat in Senate Bill 464, which stated that if federal law states that a health exchange requires assistance from state employees, the employees can eschew a possible lawsuit.

Still, Kevin-Myers says that caveat isn't enough to protect Missouri's state workers. "A court may ultimately decide that the state employee was required under federal law to cooperate, but it would take litigation to reach that ruling," she said. "I am not sure it is enough to make state employees or officials comfortable cooperating."

And if an agency or department gets sued, they must pay the legal fees out of their own budget. Kevin-Myers has published a report highlighting how Proposition E could create what she called a “chilling effect” for employees at Missouri’s Department of Insurance and MO HealthNet, the state’s Medicaid program.

“The state has many statutes and regulations that control what’s in your plan," she said. "Whether it’s coverage, whether it’s how long a claim can be out before it’s paid, adjudication issues, and the fact that every plan that’s offered in Missouri has to be approved by the director of insurance.”

With the prohibition to cooperate in place, Missouri's director of insurance can't technically approve any insurance plans that the federal exchange might introduce in the state.

Stan Hudson is associate director at the Center for Health Policy at MU.  He remembers taking three days helping his grandmother enroll in a new Medicare drug expansion program. He said enrolling a state health exchange program and trying to buy your own insurance for the first time could be just as complicated.

“And when you create a policy that doesn’t allow any state officials to talk about [the exchange] or do anything about it, then you’re creating this big hole in the information system," Hudson said. "There might be a lot of Missourians who don’t quite get what they need.”

Kevin-Myers says she hopes her report can help increase dialogue on where to go next with the state’s health exchange.

“I hope that the legislatures and the public will look at this issue and make an informed choice of what to do next regarding an insurance exchange," she said. "Whether to pass a legislation to allow cooperation whether to start our own exchange...”

Kevin-Myers submitted the report to the Missouri legislature last week. Republican State Sen. Rob Schaaf sponsored Proposition E last year. He told the Columbia Missourian that he has no plans to file any legislations to allow cooperation between state employees and the federal government.