By John Reichard, CQ HealthBeat Editor
Health and Human Services officials have encouraged states over the past year or so to act sooner rather than later to pass legislation governing the creation of health insurance exchanges — without going out of their way to suggest that there’s another approach.
But officials confirmed to CQ HealthBeat on Tuesday that in fact there is another way a state can have an exchange, adding that it’s not a matter of new policy for them to say so. The other approach in question is a state governor issuing an executive order creating an exchange. That tactic is being explored by a number of states as a way to get exchanges going after lawmakers have balked at passing exchange laws in the face of tea party protests, Politico reported Tuesday.
HHS officials said that in their “initial guidance” document released to states, the agency states that: “Establishment of an exchange requires a planning process leading to State action, by legislation or other means, to create an exchange entity with the authority necessary to meet all the exchange requirements of the Affordable Care Act.”
The key words in that statement are “or by other means.” Officials said that language also appeared in information to the states on applying for grants to establish exchanges.
Officials said Tuesday that if state law permits issuance of an executive order to create an exchange and the order meets requirements in the health care law for creation of exchange, then in general, doing so would be permissible.