With a pen stroke last week, Gov. Cuomo issued an executive order establishing a New York Health Benefit Exchange to comply with the federal Patient Protection and Affordable Care Act, a k a ObamaCare.
The exchange would be where New Yorkers could purchase or apply for the health insurance required of all Americans under ObamaCare’s controversial “individual mandate” provision. It also would serve as a marketplace for small businesses to buy affordable subsidized plans for employees.
A US Supreme Court ruling on the ObamaCare mandate’s constitutionality isn’t expected until June, at the earliest. Meanwhile, however, Cuomo may have just created a state constitutional issue of his own. Did he actually have the power to do what he did?
Cuomo’s move comes after the Republican-controlled Senate and Democratic-majority state Assembly couldn’t agree on a law to do the same thing. If Cuomo thought he could create an exchange all by himself, why did he initially seek a legislative remedy?
Senate Republicans, who resisted the governor’s bill, are mostly keeping mum on his executive end-run. Still, questions linger. For starters, what’s the rush?
Cuomo’s rationale for acting now is the federal requirement that states demonstrate by early 2013 that they can have a health-benefit exchange operational by 2014. If not, the federal government will impose its version. The executive order, absent legislation, becomes the vehicle to apply for federal implementation funding.
Still, only 11 states and the District of Columbia have created exchanges. Others — including Florida, Texas, Pennsylvania and Ohio — have held off. Of those that have moved forward, only Rhode Island has done so by executive order. Even if ObamaCare survives the Supreme Court challenge, it may be rewritten or gutted next year, if Republicans capture Congress and the White House in November.
Plus, it’s not necessarily obvious that a federal exchange would be less desirable than a made-in-New York version. Given New York’s history of heavy-handed health-insurance regulation, a federal exchange might be more cost-effective and manageable.
The order asserts that the development and operation of the exchange will impose no cost on the state or its local governments, but will be entirely federally funded until Jan. 1, 2015, drawing on appropriation authority included in the latest state budget. Starting in 2015, assuming the design works, the exchange is supposed to be self-funded. But if more government funding is eventually needed, even if the feds promise it, the exchange would require another appropriation by the Legislature.
Cuomo’s original 34-page legislative proposal would’ve created a public-benefit corporation to set up and run the exchange, with governance by a nine-member board. The 1,000-word executive order assigns the task to the state Department of Health and the Division of Financial Services, which regulates insurance companies. Beyond that, details are unclear.
The order promises that an exchange will “(1) result in lower premiums for individuals and small businesses; (2) allow individuals and small businesses purchasing coverage through such Exchange to receive $2.6 billion in federal tax credits and cost-sharing subsidies; and (3) provide one million additional New Yorkers access to affordable, comprehensive health insurance.”
But right now those lofty goals are little more than aspirations.
Suppose ObamaCare is neutered in whole or part by the Supreme Court or altered greatly by the next Congress? Cuomo’s executive order might still be construed as moving New York a step closer to having a Massachusetts-style universal-health-insurance program — call it “CuomoCare.”
That’s a pretty big step to take without the Legislature.
Russell Sykes is a senior fellow at the Manhattan Institute’s Empire Center for New York State Policy.