By Matt Canham
The Salt Lake Tribune Gov. Gary Herbert.
Washington • Gov. Gary Herbert isn’t ready to pull the plug on federal health reform just yet, even if the state’s top attorney believes a recent court ruling gives him that option.
Instead, the governor asked his staff to dig deeper into the legal ramifications and directed heads of each state department to determine what would happen if he dug in his heels and waited for the legal challenges to work their way to the U.S. Supreme Court.
“I think we need to be methodical about this,” said Herbert, who expects those state reviews to take a month. “We need to get on more solid footing before we make some decisions one way or another.”
Earlier this month, a federal judge in Florida struck down the federal health reform law, saying it’s unconstitutional because of a provision requiring nearly all Americans to obtain health insurance or pay a fine.
District Judge Roger Vinson wrote that his ruling was the “functional equivalent” of an injunction. As a result, Utah Attorney General Mark Shurtleff and his staff say Utah has the right to forgo plans to implement the law.
But Herbert isn’t as confident, since the Obama administration is sure to appeal and may be granted a stay on Vinson’s ruling.
“Just saying ‘we think it is’ doesn’t mean it was an injunction,” Herbert said.
He wants staff to explore what would happen to federal grants that the state already accepted to implement portions of the law, the bulk of which goes into effect in 2014.
“He’s probably doing the right thing, but we feel very strongly that it is not enforceable here,” Shurtleff said. “By the rule of law, it is not enforceable in Utah, but the practical matter is, there are a lot of things moving forward.”
Herbert said some of those things would continue to advance, even if he decided to stop implementing the law. That includes the state’s move toward electronic health records and an insurance exchange that allows employees of participating companies to pick their own plan from a range of options.
Herbert flew to Washington, D.C., to meet with federal officials in charge of Medicare and Medicaid. He updated them on a proposal to change the way Utah’s low-income Medicaid program pays doctors. His staff said federal officials are intrigued by the idea, which would seek to reward doctors for health outcomes instead of paying for each test or service.
The governor, along with state Sen. Dan Liljenquist, R-Bountiful, is working on such a bill, which cleared its first hurdle on Thursday, unanimously passing the Senate Business and Labor Committee.
SB180 also caps growth in Medicaid, tying it to growth in tax revenue.
If the state’s general fund grows by 5 percent, Medicaid on a per-patient, per-month basis can’t increase in excess of that, Liljenquist said.
But acknowledging that enrollment swells when the economy sours, the bill also creates a rainy-day fund to assist Medicaid through downturns.
The bill is backed by insurance providers, business leaders and advocates for those with low incomes. If the Legislature signs off, Herbert will formally request a waiver from existing federal rules, which could take up to 18 months.
While in Washington, Herbert also spoke at the conservative Heritage Foundation about his disgust with the federal health reform law, which he called the “most divisive thing we have had since the Vietnam War,” and for federal rules that he believes are too restrictive.
He said Utah has requested a federal waiver to allow the state’s Medicaid program to communicate with patients through e-mail, but federal officials denied the request.
“They sent us the denial through e-mail,” Herbert said.
He also criticized rules that require states to keep the same level of Medicaid benefits or forgo federal dollars, saying that, at some point, Utah may have to request a waiver to cut the number of people enrolled in order to slash the budget.
“When you lose money, you’ve got to cut someplace,” he said.
Michael Hales, the state’s Medicaid director, said the governor is also considering a request for a federal waiver to allow Utah to make some Medicaid enrollees pay more for doctors’ visits. Currently, it’s a $3 co-pay for an office visit and $6 to go to the emergency room.
Herbert thinks it should be a sliding scale, where those closer to the federal poverty line pay more than those who are far below it.
“If you can afford more, you should pay more,” he said. “We are asking for flexibility. We are asking to do it our own way.”
mcanham@sltrib.com Kirsten Stewart contributed to this report.
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