Nevada's alleged control over state's
Obamacare insurance exchange an illusion

State's implementing law simply agrees to obey feds

LAS VEGAS — Gov. Brian Sandoval has repeatedly explained his aggressive drive to implement Obamacare’s prescribed health-exchange system in Nevada by saying he wants the Silver State, not the federal government, to control the exchanges.

However the state legislation that Sandoval’s administration introduced and that he then signed in 2011 — Senate Bill 440 — gives the state of Nevada no control over the “Silver State Health Insurance Exchange” it established.

Instead, it — like the subsequent law, Chapter 695I of the Nevada Revised Statutes — simply promised to submissively do whatever the federal government directs.

The actual language of NRS 695I.210, which defines the exchange’s duties, is quite clear:

1. The Exchange shall:

. . . .

(e) Unless the Federal Act [PPACA, or “Obamacare”] is repealed or is held to be unconstitutional or otherwise invalid or unlawful, perform all duties that are required of the Exchange to implement the requirements of the Federal Act. (Emphasis added.)

Functionally, therefore, the legislation appears to reduce the allegedly sovereign State of Nevada to an administrative agent of the federal government.

This relationship conditions the additional duties that NRS 695I.210 specifies, since all are limited to “qualified” health plans, “qualified” individuals and “qualified” small employers.

So what is a “qualified” health plan?

According to NRS 695I.080, a “Qualified health plan” has “the meaning ascribed to it in Section 1301 of the Federal Act.” That, in turn, requires that health insurance plans conform to the specifications set by section 1311(c) of the act — i.e., the detailed rules that the federal Secretary of Health and Human Services will be setting.

Section 1301 also requires health-insurance plans conform to the health-benefits package requirements specified by section 1302(a) of PPACA.

So the term “qualified,” in the enabling legislation for the Nevada state Obamacare exchange, essentially means obeying the federal government. 

Thus a “qualified” individual is defined by NRS 695I.090 as a person who is “seeking to enroll in a qualified health plan.”

And a “qualified small employer” is defined by NRS 695I.100 as “a small employer that chooses to make all of its full-time employees eligible for one or more qualified health plans offered through the Exchange….”

So all of the key duties of the Silver State Health Insurance Exchange come down to acting as a state-based agent to enforce Obamacare’s enabling legislation in Nevada.

In his 2011 State of the State message, Sandoval told Nevadans that, “We must also plan for a Health Insurance Exchange so that we — and not the federal government — control the program.”

While he said he “firmly” believes “that many aspects of the law are unconstitutional,” and that he “will continue to fight to have them overturned,” Sandoval argued that, “in the meantime, the law imposes many deadlines, and we cannot wait until litigation is resolved.”

The legislation that the governor signed into law does not merely commit the State of Nevada to perform all duties required to implement the explicit requirements of PPACA.

It also commits Nevada to implement PPACA “as amended by the federal Health Care and Education Reconciliation Act of 2010, Public Law 111-152, and any amendments to, or regulations or guidance issued pursuant to, those acts."

Steven Miller is the managing editor of Nevada Journal, a publication of the Nevada Policy Research Institute. For more in-depth reporting, visit http://nevadajournal.com/ and http://npri.org/.

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Nevada Journal, a member of the Nevada Press Association (NPA) and Investigative Reporters & Editors (IRE), is an independent nonprofit reporting effort that adheres to the SPJ standards of professional journalism and specializes in in-depth and investigative journalism.

For the last 20 years, Nevada Journal has been published by the Nevada Policy Research Institute, a non-partisan public-policy think tank.

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