BREAKING – MS Insurance Commissioner Mike Chaney’s presser on Obamacare decision

DEPARTMENT OF HEALTH & HUMAN SERVICES
Centers for Medicare &Medicaid Services
Center for Consumer Information and Insurance Oversight
200 Independence Avenue SW
Washington, DC 20201

February 8,2013

CENTERS for MEDICARE &MEDICAID SERVICES

Mike Chaney

Commissioner of Insurance, Mississippi Insurance Department
501 N. West Street, Suite 1001
Woolfolk Building
Jackson, Mississippi 39201

Rc: Mississippi State-based Exchange Blueprint Application

Dear Commissioner Chaney,

Thank you for submitting a State-based Exchange Blueprint application on behalf of the State of
Mississippi. We completed our review and have determined that we will not be able to
conditionally approve your application at this time, because of the Mississippi Governor’s stated
intent to oppose implementation of a State-based Exchange.

Based on the authority in section 1321(b) of the Affordable Care Act, the Exchange Blueprint
details requirements for approval as a State-based Exchange. As stated in the Exchange
Blueprint, “[a] State’s Declaration Letter must be signed by the State’s Governor”.’ In addition
to this, the Exchange Blueprint requires that a State-based Exchange has developed and
documented a coordination strategy with other agencies administering Insurance Affordability
Programs and the SHOP that enables the Exchange to carry out the eligibility and enrollment
activities.’ With a lack of support from your Governor and no formal commitment to coordinate
from other State agencies, we do not see a feasible pathway to conditionally approving a State-
based Exchange in Mississippi for 2014.

Although we are unable to conditionally approve your application at this time, we are impressed
by the work you have completed to date and encourage you to submit an application for the
Partnership Exchange model by February 15,2013. The work your Insurance Department has
done thus far to ensure that Mississippi maintains broad authority over its health insurance
market makes Mississippi an excellent candidate for a State Partnership Exchange.

Thank you again for submitting a State-based Exchange Blueprint application on behalf of the
State of Mississippi. We look forward to having discussions with you and your staff about the

I See Blueprint at p. 6. http://cciio.cms.gov/resources/files/hie-blueprint-11162012.pdf
2 See Blueprint at p. 26 (Table Section 3 .2). http://cciio.cms.gov/resources/files/hie-blueprint-111620 12.pdf

1

Partnership Exchange model and believe that this provides an additional opportunity for
Mississippi’s Insurance Department to take part in the implementation of a health insurance
Exchange.

2.
Sincerely,
.>

Gary Cohen
Director
Center for Consumer Information and Insurance Oversight

TEXT OF LETTER FROM GOVERNOR PHIL BRYANT TO DEPARTMENT OF HEALTH AND HUMAN SERVICES DATED JANUARY 18, 2013:

PHIL BRYANT
GOVERNOR
January 18,2013
Secretary Kathleen Sebelius
U.S. Department of Health &Human Services
200 Independence Avenue, S.W.
Washington, DC 20201

Dear Secretary Sebelius,

I understand that the Mississippi Insurance Department (“MID”) recently forwarded you the Mississippi
Attorney General’s opinion that MID has the necessary authority under Mississippi Jaw to establish and
operate a “State-based Exchange” pursuant to the so-called Affordable Care Act (“‘ACA”). In
Mississippi, an attorney general’s opinion “is merely persuasive authority.” State ex rel. Holmes v.
Griffin, 667 So.zd 1319, 1326 (Miss. 1995). It is “his opinion,” Miss. Code Ann. § 7-5-25, “not
controlling law.” In Interest of T~L. w., 75 I So. 2d 1033, 1034 (Miss, 1999).

After reviewing the Attorney General’s conclusions on this issue, my own opinion and my attorneys’
opinion that MID lacks the necessary statutory and constitutional authority to establish and operate an
exchange remain unchanged, At your agency’s request, I briefly explained my office’s position by letter
of December 28, 2012, and we explained the basis of our opinion in more detail in a subsequent letter to
Attorney General Hood, which 1 have enclosed for your reference. Because I continue to believe that
MID lacks the necessary authority under Mississippi law to establish and operate an exchange under the
ACA, I do not believe that lillS should approve MID’s application. In this regard, HHS should take into
account that any further action by MID toward the establishment or operation of an exchange may
ultimately be deemed null and void as a matter of state law.

In addition, I must advise you that I am instructing the Mississippi Division of Medicaid not to assist or
cooperate with a “State-based Exchange” or “Federally-facilitated Exchange” established pursuant to the
ACA, unless clearly required to do so by validly enacted and mandatory federal Medicaid laws or
regulations. While the Division will of course comply with valid and mandatory federal laws and
regulations, I am not aware of any statute or rule that would require it to cooperate with an exchange. In
OLlr opinion, any such law 01′ reguJation would necessarily be among the ACA’ s Medicaid provisions that
were rendered optional by the Supreme Court’s ruling inNFIB v. Sebelius. Please: advise my office if
HHS has a different opinion on this issue.