Coloradans to vote on "protection" from health coverage mandates

October 26, 2010 — In sweeping language, proposed Amendment 63 to Colorado’s state constitution would bar the state from ever adopting or enforcing, either “directly or indirectly,” any mandate that requires individuals to participate in a public or private health insurance, coverage, or benefit plan. The ballot proposition encompasses mandates initiated by the state and those “at the insistence” of the federal government, and could affect state-level implementation of both current and future health-related legislation. Colorado voters will decide the fate of Amendment 63 on Nov. 2.

The measure, named the “Right to health care choice,” is expected to face court challenges if approved by voters, and has already survived one lawsuit from groups claiming the title was a misleading political “catch phrase.” The Colorado Supreme Court ruled in June that the ballot proposition was not impermissibly misleading and could proceed as named. The phrase, however, is not used to describe a right to have a state-mandated health plan, but a right not to participate in one.

Amendment 63, developed and pursued by the libertarian Independence Institute, is, according to its proponents, intended to prevent the state of Colorado from requiring anyone to participate in a health insurance plan. It would also insulate the current practice of individuals directly making arrangements with health care providers to receive and pay for services (a practice the proponents of Amendment 63 fear would be threatened by any future single-payer plan).

Much of the debate around Amendment 63 has operated as a proxy for the fight over whether the federal Patient Protection and Affordable Care Act, which is not scheduled to go fully into effect until 2014, does or does not represent a wise policy decision. For example, according to Linda Gorman, one of the authors of Amendment 63, “An individual mandate basically says I need to spend my money on health care first.” Opponents parry with a variety of arguments, including the claim that the individual mandate will ensure affordable health care for those with preexisting conditions.

There does appear to be consensus that Colorado does not have the authority to trump federal health insurance or health benefit requirements. But, there has been far less discussion on what the Amendment actually says.

Adela Flores-Brennan, a health care attorney at the Colorado Center on Law and Policy, asserts that the Amendment’s language is so ill defined, much of the interpretation of the Amendment will depend on the courts to decide in costly lawsuits.

The Amendment states that Colorado shall not “directly or indirectly” impose a mandate on individuals. What “indirectly” means, and how voters are supposed to know the parameters of that term, is not clearly spelled out. Jane Orient, a physician in Arizona and executive director of the Association of American Physicians and Surgeons, which endorsed Amendment 63, said that indirect requirements might include any attempt by Colorado to prohibit an employer from operating in the state without carrying health insurance for its workers.

The scope of the prohibition on Colorado “enforcing” laws, regulations, or policies having to do with a requirement on individuals to purchase health insurance is also uncertain, although the covered laws, policies, and regulations do clearly include current or future federal law.

Orient said that a policy being “enforced” by the state of Colorado could perhaps extend to even just cooperating with the federal government. According to Jennifer Tolbert, a health policy analyst at the Kaiser Family Foundation, one area where such required cooperation is on the horizon is the federal government’s requirement that states issue a certification for individuals who are exempted from getting health coverage and report that exemption to the IRS.

Jon Caldara, the sponsor of the Amendment and president of the Independence Institute, did not respond to numerous requests from Remapping Debate soliciting his views on the intended scope of the Amendment.

Amendment 63 does state that Colorado is prohibited from either initiating action on the state level or from taking action “at the instance” of the federal government. However, the entire scope of “at the instance of” is similarly not clearly defined. According to Brian Schwartz, a blogger at the Independence Institute, one circumstance this would cover is where — perhaps in the aftermath of the federal act being found unconstitutional — “the federal government might pressure states to do what they want it to do.”

The most common way the federal government exercises such pressure is to tie federal funding availability to a state’s agreement to make policy changes. For example, the federal government persuaded most states to raise the legal drinking age to 21 by decreasing federal highway funds from those states that would not make the change. More recently, Race to the Top education grants were also used as an incentive to convince many states to change education policy.

The federal government has already used this incentive process to encourage states to update the way they review the proposed health insurance premium increases of insurers and take action against those making unreasonable rate hikes. Colorado has applied for and received a $1 million grant to make these updates and improvements.

Remapping Debate asked Gorman, who is also the director of the Health Care Policy Center at the Independence Institute, whether the ban on taking federal money that required state action in support of mandating individual health insurance coverage applied no matter how much federal money was at stake, and no matter how limited the state action was in helping cause individuals partake in a mandated health plan.

Gorman confirmed that if Amendment 63 were adopted, it would apply in all cases unless and until Colorado voters were to repeal it. She described the Amendment as acting as a “safety valve for the people.”

Melissa Hart, an associate professor at the University of Colorado law school, said repealing the Amendment could be a very difficult and lengthy process because such an approach is only available in an election year cycle (the next being 2012), and because an amendment repeal referendum would first require collecting sufficient signatures to get the measure on the ballot, and then require an expensive, months-long ballot campaign.

UPDATE: Amendment 63 was rejected on Nov. 2.