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:

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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.”

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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.

January 9th Facebook posting from the Ohio Center for Autism and Low Incidence (OCALI) showing Governor Kasich signing a letter supporting the autism insurance mandate (Source: https://www.facebook.com/ohioautismcenter)

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  [box]”The Legislation signed today compels all Ohioans buying health insurance to purchase autism coverage, in direct violation of the Health Care Freedom Amendment, passed as “Issue 3″ in November of 2011.[/box]

Furthermore, the National Federation of Independent Business strongly spoke out against the governor’s action:

[box]The administration’s decision to include a new mandated autism coverage on small-group health insurance plans offered by small businesses, through executive fiat, will drive up cost and eliminate flexibility for Ohio’s job creators as they continue to struggle to provide healthcare coverage to their employees,” said Roger R. Geiger, Vice President and Executive Director of the National Federation of Independent Business/Ohio.[/box]

The 1851 Center has since further clarified its position on the Governor’s December 21st action in its January 17th memo to legislators:

[box]”The Governor’s action appears to request the federal government to impose the mandate on Ohioans. The actual binding effect of the Administration’s letter to the federal government is unknown at this time.[/box]

And in its related press release the 1851 Center added the following:

[box]The memorandum observes that while the Governor’s action — simply a letter to the Obama Administration recommending that it impose autism coverage on Ohioans — may not be a forbidden “law or rule,” any state legislation will indeed violate the Amendment.[/box]

Finally in an email exchange with OLC, and 1851 Center Executive Director Maurice Thompson, Mr. Thompson added:

[box]Our initial Facebook posting, which was based on news reports available at the time, indicated that the Governor’s action was an Executive Order.  Were it as much, we believe this mandate would be actionable.  In an optimal world, OLC would have been consulted beforehand, as other interest groups were.[/box]

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.