By Brian Sikma

In Madison it has been a case of behind the scenes legislative drama. Bureaucrats and the top GOP leaders of the Assembly and Senate have insisted that AB 210, the Obamacare compliance bill, must pass the legislature before the close of the fall session. Reluctant legislators have faced tremendous pressure to quickly vote for the bill despite limited time for discussion and debate.

One of the key arguments used by Obamacare proponents says that if AB 210 does not rapidly clear the legislative process, Wisconsin will be found non-compliant with the federal Patient Provider and Affordable Care Act (Obamacare) and risk ceding some regulatory power to the federal government. Conservatives in and out of the legislature, and at respected national think tanks, have said that this argument is based on a false premise. The leeway given to states that voluntarily comply with Obamacare differs insubstantially from the imposed mandates that would go into effect if Obamacare compliance was forced on the state by the federal government.

PPACA requires that states set up compliant external and internal review standards so consumers have a mechanism for holding their insurance provider accountable for full compliance to Obamacare. A significant portion of AB 210 deals with the establishment of the review process and orders the commissioner of insurance to promulgate regulations that comply with the Obama administration’s Health and Human Services agency’s model regulations.

Section 636.12 of AB 210 ASA 1 reads in part, “the commissioner shall by rule do all of the following,” and it proceeds to list the federal regulations that the commissioner must comply with. It would seem from this language that the commissioner is not granted authority – he likely already has that – but rather that he is commanded to exercise his authority to comply.

This command that the commissioner comply with PPACA in establishing the internal and external review process is a key element of AB 210. It has been argued that if this particular language does not go into state law it will prevent Wisconsin and the Office of the Commissioner of Insurance from establishing free-market oriented review regulations.

It appears now, however, that the OCI does not need a legislative command or approval to create regulations that comply with PPACA review standards. In a letter dated October 4, Steve Larsen, the director of the Health and Human Services’ Center for Consumer Information and Insurance Oversight (CCIIO), praised Wisconsin’s commissioner of insurance, Ted Nickle, for using the emergency rules procedure to bring Wisconsin temporarily into compliance with HHS Obamacare review mandates. Larsen noted that Nickle does need to find a way to implement permanently compliant rules when the emergency rules expire, and said that HHS was aware of OCI’s efforts to move a permanent rule along.

The process for promulgating a permanent rule may take several months. While the legislature does have the option of voting against a proposed rule, simply not acting on it will mean that the rule goes into effect. No legislative action is required for a rule to become permanent. Governor Jim Doyle (D) started the process of promulgating permanent rules that bring Wisconsin into line with PPACA back in 2010.

If no legislative action is required for a rule to become permanent, and if OCI has already created emergency rules that comply with Obamacare and is in the process of creating permanent rules that comply with Obamacare, then there would have been no need for legislators to vote in favor of AB 210 with respect to its internal and external review provisions. This means that at best, legislators were possibly being used as political cover to lend an air of political legitimacy to the actions of unelected bureaucrats.

When asked to comment about AB 210 in its entirety, the Goldwater Institute said, “This bill entrenches Obamacare by enacting it as part of Wisconsin['s] state statute[s].” The Heartland Institute and the Cato Institute both expressed serious concerns about the bill’s provisions, as well as its ability to lay the foundation for some variation of a health insurance exchange here in Wisconsin.

Between the previously expressed concern that AB 210 simply legitimizes and codifies Obamacare in Wisconsin law, and the likely possibility that at least one of its major provisions serves only to provide political cover for a regulatory change already under way, conservative legislators are rightfully wary of embracing the bill and supporting it with their vote. If anyone believes that the state can pass this bill and trust the word of the federal government to accept whatever free-market modifications are made to state implementation of Obamacare, they should look at the newly created $45 million deficit caused by federal mismanagement of enrollment in disability programs.

Wisconsin lawmakers and policymakers should not deceive themselves into thinking that the federal government has Wisconsin consumer’s best interests in mind. Lawmakers who voted for AB 210 after being told it was necessary to support the bill even though they had serious concerns may want more of an explanation when they learn that at least a good part of their vote was to provide political cover and share the political blame for bringing Obamacare to Wisconsin.

PDF of HHS letter approving of OCI regulatory changes: WI SignedRedetermination 10 04 11.