Amendment 63’s ambiguous language could create unintended results, damaging Colorado health care
Since the passage of national health care reform (the Affordable Care Act or ACA), activists in at least 40 states have advanced anti-reform efforts beyond the ongoing lawsuits challenging the ACA’s constitutionality brought by state attorneys general. Measures in nine states have passed or are pending voter approval. A voter initiative in Colorado, proposed constitutional Amendment 63, contains uniquely broad language that might have unintended consequences for health care in this state if approved by voters.
The Affordable Care Act’s individual mandate
The ACA includes significant reforms to increase access to health insurance. A key component is the individual mandate – the requirement that United States citizens and lawful residents have health insurance. That mandate makes it feasible to eliminate pre-existing condition exclusions and other restrictions on access to insurance now permitted in most states, including Colorado.
Amendment 63 creates confusion, lack of oversight
The core elements of Amendment 63 are an attack on the individual mandate, heavy-handed protection of direct payment and the creation of an undefined right to health care choice. Together with the lack of clarifying definitions or limiting provisos, Amendment 63 would move Colorado toward a health care system that is more costly and has fewer consumer protections than exist today.
Troubling consequences in Colorado
Amendment 63 cannot block the implementation of federal law. If the ACA’s mandate is overturned, that will happen via federal lawsuits challenging its constitutionality. However, Amendment 63’s ambiguous language could have problematic effects on the delivery of health care services and health insurance in Colorado.
Limits on Colorado’s ability to reform health care
One certain effect of Amendment 63 would be an outright prohibition on any state-based individual health insurance mandate or any other system requiring the purchase of health insurance or participation in a health plan. Colorado’s own bi-partisan Blue Ribbon Commission for Healthcare Reform recommended the state adopt an individual mandate as a mechanism for increasing coverage, reducing costs and eliminating pre-existing condition exclusions. Amendment 63 would prohibit the state from ever adopting such a recommendation. That would severely limit the options Colorado has to determine its own path toward health reform if the individual mandate provisions of the ACA are found unconstitutional by the courts.
Jeopardizes consumer protections
Amendment 63 protects the right of “any person” to receive direct payment for lawful health care services. That might interfere with the state’s ability to regulate the practice of medicine. For example, if any person has a constitutional right to receive payment, the state might not be able to regulate who provides health care services. Indeed, it is impossible to predict the effect Amendment 63 might have on the state’s ability to license, discipline or supervise doctors and other medical practitioners.
In addition, a right to receive payment for medical services might interfere with existing consumer protections, such as the current prohibition on “balance billing,” a practice where certain medical providers charge more than an insurance company pays for a covered visit or procedure and bills the patient for the difference.
No protection of the right to have health insurance
Yet another potential consequence of Amendment 63 stems from its failure to provide explicit protection of the right to purchase or privately contract for health insurance. The language of similar measures in almost every other state includes explicit protection of people’s ability to participate in health insurance.
Disrupts student health and child protective services
Amendment 63 might prohibit state colleges and universities from requiring students to have health insurance, and it might undermine the student health system by prohibiting a state college or university from assessing mandatory health fees. Such a prohibition could shut down student health care and mental health services on state college campuses. Similarly, Amendment 63 could interfere with the ability of a court to require the purchase of health insurance by a parent for a child in a divorce proceeding. The potential for all the above effects is underscored by explicit protections in other states’ measures.
Threats to the operation of Medicaid and CHP+
It appears Amendment 63 would prohibit the state from automatically enrolling participants in Medicaid and CHP+ with a health insurance company, health benefit plan or similar plan. That prohibition would interfere with Colorado’s ability to manage quality and cost in programs that serve more than 600,000 Coloradans and on which the state spends more than 20 percent of its General Fund.
An attempt to reorient health care based on ideology
Amendment 63 moves Colorado closer to a system where medical providers are not regulated by the government, the default is to pay out-of-pocket for health care rather than secure health insurance,vulnerable populations have fewer health care options and individuals with pre-existing conditions are unable to access affordable care. Given the measure’s ambiguity, just how far it moves Colorado toward that extreme would be the subject of many costly lawsuits. Coloradans ought to weigh Amendment 63’s approach to health care and its potential for costly and damaging consequences as they consider the measure.
Contact: Alec Harris
Policy analyst
303-573-5669, ext. 316
Released Oct. 4, 2010
This is a short version of an issue brief released Sept. 27.