In late December we posted an article reporting that Governor John Kasich signed an executive order on December 21 mandating that insurance companies in Ohio provide autism coverage. (For more background, see the end of this article.)
On January 17, after the 1851 Center for Constitutional Law (1851 Center) issued a memo to state legislators warning about future infringements on the Health Care Freedom Amendment (HCFA), Gongwer News Service followed up with an article on the matter and provided an opportunity for the autism lobby and the Kasich administration to respond. From the January 17, Gongwer article:
Supporters of the coverage, however, rebuffed the Center’s argument, saying that the move is in line with Ohio’s constitution.
“We have reviewed the constitutional amendment and disagree with the center’s interpretation. We again commend Gov. Kasich for taking action to help Ohio join the 32 other states that have placed the interests of families and taxpayers ahead of the insurance lobby,” said Rick Remington, spokesperson for Autism Speaks.
Meanwhile, Rob Nichols, a spokesman for Gov. Kasich, dismissed the concerns saying, “we just don’t have common ground for discussion with anyone who opposes providing this kind of help to a child with a disability.”
When asked about its actions concerning the autism requirement in an email exchange between the Kasich administration’s Director of Outreach, Merle Madrid, and the OLC, the Governor’s office explained that it was not their interpretation that the governor’s action violated the Ohio Healthcare Freedom Amendment. They pointed out that the Issue 3 ballot language clearly states that Issue 3 would not “Affect which services a health care provider or hospital is required to perform or provide.” Therefore, in their opinion, the autism requirement does nothing to violate the Ohio Healthcare Freedom Amendment by requiring health care providers to provide coverage for autism. In a subsequent reply, OLC questioned how an insurance company, the target of the autism mandate, could be considered a “health care provider or hospital”. We received no answer to that question.
Background and 1851 Center Commentary
In our prior article, Governor Kasich’s lame duck Christmas gift: violate the Healthcare Freedom Amendment by Executive Order, we referred to a Facebook posting by the 1851 Center, author of the HCFA, which stated
Furthermore, the National Federation of Independent Business strongly spoke out against the governor’s action:
The 1851 Center has since further clarified its position on the Governor’s December 21st action in its January 17th memo to legislators:
And in its related press release the 1851 Center added the following:
Finally in an email exchange with OLC, and 1851 Center Executive Director Maurice Thompson, Mr. Thompson added:
The question of whether or not the Kasich administration has legally violated the HCFA appears to be undecided at the current time and one that may only be decided by a court of law. We will be closely monitoring any future developments on this question and continue to keep you informed. In the meantime, we recommend that you contact your state legislators and make sure that they have reviewed the 1851 Center’s legal memo A POLICYMAKER’S GUIDE TO FOLLOWING THE HEALTH CARE FREEDOM AMENDMENT.