Health Exchange Special Sessions Could Be Called

If the Supreme Court upholds the health care reform law, state legislatures may take action to avoid having health exchanges set up by the federal government.
by | April 20, 2012

Some statehouses could reopen in the fall if the U.S. Supreme Court upholds most or all of the Affordable Care Act (ACA) this summer. With about half of states not taking action on their state health insurance exchanges before the court rules, legislators might be forced to return to their state capitols for special sessions to complete work on the online marketplaces.

Officials in North Dakota, Tennessee and Virginia confirmed to Governing that the possibility of a special session has been floated in those states. Given these early examples, it seems the idea could become popular among Republican-controlled states that want to avoid having a federal-run exchange.

Joy Wilson, senior health policy analyst at the National Conference of State Legislatures (NCSL), said it is possible states will explore special sessions if the law stands, but considering the timetable, legislatures would need an already firm idea of what the exchange would look like. A Jan. 1, 2013, deadline, by which states must receive at least conditional approval from the federal government for state-run exchanges, doesn’t leave much time for states that have decided to wait.

“It’s not typical for a state to have a special session after an election, but this is an extraordinary thing,” Wilson said. “If they had already done the planning, they could probably pull it off. But if they hadn’t, I don’t see how they could.”

In many states, exchange legislation has been proposed but has put on hold until the ACA’s constitutionality is determined. According to NCSL, 19 states have bills currently pending. North Dakota (a GOP-heavy state that is challenging the law) is one of them: a bill was proposed last fall during an unrelated special session, but never moved out of committee.

If the law is upheld, state Rep. George Keiser, chairman of the health-care reform review committee, said he would expect a special session to be called to pass it. North Dakotans are generally opposed to special sessions, he said, but they would be more angry at the idea of a federal exchange.

“North Dakota hates the federal government intervening in our affairs. Hate is an understatement,” Keiser said. “The people of North Dakota would not stand for it.”

A special session would have to be called by Gov. Jack Dalrymple under state law. A spokesperson for Dalrymple told Governing that the idea has circulated among the governor’s staff, but no formal decision has been made and it is too early to speculate what Dalrymple will decide to do.

Virginia finds itself in a similar position to North Dakota: the state (also GOP-dominated) filed a separate challenge to the ACA and has put legislation on hold until the Supreme Court determines the law’s fate. Planning has continued under the direction of Gov. Bob McConnell, but no bill has been passed. Bill Hazel, the state’s secretary of health and human services, told Governing that McConnell would likely call a special session to pass legislation based on that planning if the law were upheld.

As in North Dakota, Hazel said Virginia’s primary motivation would be to prevent federal intervention in the exchange.

“If we have to do this, we believe that doing it ourselves is a better alternative for Virginia,” he said.

In Tennessee, House Speaker Beth Harwell told Governing that she has had preliminary discussions with Gov. Bill Haslam about holding a special session if the law stands. An ad hoc committee for the exchange has been established, the governor’s office has continued to explore its feasibility and Harwell said the legislature could easily be recalled.

“It’s on the table,” she said.

Alexia Poe, Haslam’s director of communications, said there is a belief among the governor’s staff that the executive branch can do enough preparation before the next official legislative session to gain conditional approval from the federal government in January without a special session, but confirmed the possibility had been raised. And while many state officials remain skeptical about the ACA’s long-term viability, Poe said Haslam believes Tennessee should take charge of its own exchange if necessary.

The governor “is less than thrilled with Obamacare and hopes it isn’t implemented,” she said. “But he also feels that it is our responsibility to be prepared in the event that it is implemented, and that the state running the exchange is the better thing for Tennessee to do.”

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