When Gov. Robert Bentley gets passionate, he said, he tends to preach, and he was passionate in his opposition to the Affordable Care Act in Decatur on Thursday.
“I’m standing for what I believe in,” Bentley said at a Kiwanis Club of Decatur meeting. “I truly believe we are the last great hope, as states and as governors, to stand in the way of some of these federal extensions of power into our lives.”
Bentley said the Affordable Care Act, scheduled to take full effect in 2014, would hurt doctors.
“It’s the destruction of the greatest occupation in the world, and that’s the practice of medicine,” Bentley said. “Because I practiced medicine for 34 years and I love it — it was a calling to me — I just hate to see destruction of that. Medicine should be practiced between a patient and their doctor.”
He went on to explain the strategy he is using in an effort to block the health-care law.
Bentley is one of several Republican governors who have refused to set up the insurance exchanges contemplated by the Affordable Care Act. Today is the deadline for states to declare whether they will create their own exchange, partner with the federal government or defer to the federal government. Bentley predicted 25 governors will refuse to participate.
He prevously mentioned cost as a reason Alabama would not participate in the exchanges, which are Internet-based platforms allowing individuals and small employers to choose between competing private insurance companies. His emphasis on Thursday was a legal strategy designed to defeat the health-reform law.
“Let me tell you the reason I have decided to not set up a state-based exchange or a partnership exchange,” Bentley said. “It’s because the way the law was written — the law does not talk about a federally facilitated exchange.”
Because he refused to participate in a state exchange, Alabama will instead have a federal exchange.
“That’s the third option,” Bentley said. “That’s what we will get. But (the law) does not talk about that. So there was an error in the law as it was written.”
Bentley said it is unconstitutional for the federal government to force the state to create the exchange. Since the law does not authorize the federal government to create an exchange in a state, he said, the states can effectively block the law by refusing to participate.
“Now that’s an argument I’ve never heard,” said Judith Solomon, vice president of health affairs at the nonpartisan Center for Budget and Policy Priorities, a Washington, D.C.-based research institute.
She said the ACA directs a federal agency to set up an exchange if the state declines to do so.
“Section 1321 of the ACA is very clear that if a state elects not to establish its own exchange, or isn’t going to be ready, the (federal government) ‘shall establish and operate such exchange,’ ” Solomon said. “I’ve never heard the argument that there’s no ability to operate an exchange.”
There is an argument, Solomon said, that the ACA prevents residents from obtaining federal premium subsidies in exchanges operated by the federal government. A part of the law referencing premium subsidies for low-income citizens refers to “state exchanges.” Some have argued, Solomon said, that this means a federal exchange cannot offer subsidies.
A lawsuit filed in Oklahoma makes this argument. Solomon said she does not find the argument convincing, as other language suggests the federal exchanges operate in the same way as state exchanges.
A law professor at Case Western Reserve University, Jonathan Adler Jr., disagrees with Solomon. He wrote a paper concluding federal exchanges could not offer premium subsidies.
But Adler said he was not sure how Bentley concluded the federal government cannot create an exchange.
“There is a provision in the statute that says the federal government shall create an exchange,” Adler said. “What I’ve argued is that the statute, as plainly written, only authorizes tax credits for state-based exchanges.”
What Solomon finds surprising, she said, is that any governor would make the argument.
“For governors to want to block their uninsured citizens from financial help getting insurance that’s going to be available to people in other states is something I don’t quite understand,” Solomon said. “The result would be people in Alabama do not get federal help purchasing insurance, and people in other states would.”
The state has about 681,000 uninsured residents, including 19,000 in Morgan County, 11,700 in Limestone County and 5,500 in Lawrence County, according to a study by Kaiser Family Foundation.
Adler said that if federal exchanges can’t offer tax credits and premium subsidies, many other parts of the law — including penalties for large employers who fail to offer insurance — would become difficult to implement.
Bentley said he knew what he was doing in opting out of the exchange and in rejecting an ACA-offered Medicaid expansion.
“I know hospitals are worried about that. I understand that,” Bentley said. “People have to realize I have long-term goals. I don’t do things just on a whim.”
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