Autism coverage plan may violate Ohio Constitution's newest amendment

1/26/2013

COLUMBUS — Moves by lawmakers and Gov. John Kasich to require autism coverage to be a part of health-care policies issued in the state may violate the Ohio Constitution’s newest amendment, the amendment’s author said.

The Ohio Health Care Freedom Amendment was overwhelmingly supported by voters in 2011 and was largely seen at the time as a message to the federal government opposing President Obama’s health-care law. But the amendment also prohibits Ohio from mandating specific types of coverage, according to Maurice Thompson, executive director of the 1851 Center for Constitutional Law.

The last legislative session ended last month without final passage of a bill that had bipartisan support to require health policies issued in the state to include coverage for autism, a broad category of disorders affecting child brain development. The disorders can affect communication, attention, and behavior, among other things.

When the bill did not pass, in part because of opposition from business, Mr. Kasich ordered such coverage to be included in state policies for 39,000 government employees. He also sent the Obama Administration a written “comment” on proposed federal rules for implementation of the new Patient Protection and Affordable Care Act in Ohio that his office said have the effect of including autism spectrum disorder as part of the minimum coverage private insurers would have to provide under the law.

The governor’s action may not have technically violated the language of Ohio’s 21st right under its constitution’s Bill of Rights, but it violates the spirit of the amendment, Mr. Thompson said.

“We want to litigate that if we can,” Mr. Thompson said. “We’d like to get the autism mandate off the books because it can be highly destructive to the health-care market and small business. It precludes freedom of choice and violates the spirit of the health-care amendment.”

The center’s opposition is to all mandates and is not specific to the autism mandate, Mr. Thompson stressed. There have also been bills introduced in recent years to mandate coverage of diabetes supplies and contraception.

“This is not means-tested at all,” Mr. Thompson said of the autism mandate, noting that everyone buying insurance would have the same coverage regardless of their wealth.

He said the first option of families struggling with autism would be to turn to charity. He said if the state believes help for families is needed, it should provide a direct government subsidy for them, not create a hidden private-sector insurance cost paid by everyone.

“That way the state spending is on the books as opposed to off the books as it is now,” he said. “There would be transparency.”

Mr. Thompson questioned whether Mr. Kasich could make such a decision via a comment to federal rules without a vote of the General Assembly. He said if any litigation does follow, it would be on separation-of-powers grounds.

“We don’t have common ground for discussion with anyone who opposes providing this kind of help for a child with a disability,” said Kasich spokesman Rob Nichols.

Rep. Cheryl Grossman (R., Grove City), one of the leading lawmakers behind the proposed autism legislation, had yet to see Mr. Thompson’s memo. She said additional steps dealing with autism are likely to be introduced as legislation in the new session.

“When you’re talking about something that affects one in 88 children and one in 53 boys, you have an epidemic,” she said. “We’ve heard many stories from families who wanted to provide everything they could for their children but were unable to do that. I commend the governor on what he did on behalf of those families. It’s similar to other epidemic-type illnesses throughout our history and throughout our country.”

The voter-approved amendment generally prohibits government from compelling its citizens to participate in a health-care system or from imposing penalties on them if they do not.

Newly enacted coverage mandates would violate the amendment, Mr. Thompson said, because citizens would not be able to buy policies that didn’t contain that coverage and insurers would be penalized if they didn’t provide it.

The amendment’s overwhelming passage in 2010 was largely symbolic when it came to affecting what has been referred to by critics as Obamacare. On the day that the U.S. Supreme Court upheld most of the law, Ohio Attorney General Mike DeWine, a Republican who fought the law in court, said a state constitution cannot trump federal law and the nation’s highest court.

But the amendment’s effects on state law have yet to be tested.

Sen. Randy Gardner (R., Bowling Green), who recently moved back to the upper chamber from the House, supported the autism bill and was involved in the past with a bill that would have mandated coverage of diabetes supplies. He also supported the health-care freedom amendment when it was on the ballot in 2011.

“If portions of the federal health-care act were ruled unconstitutional or some of the mandates in the law were ruled unconstitutional, I wanted to put Ohio in the best position to have flexibility to make health-care decisions,” he said. “Candidly, that was my primary focus in supporting that.”

As for the 1851 Center’s contention that the amendment also blocks future insurance mandates, Mr. Gardner said, “I think what this does is require legislators to at least consider that argument. I’m sure it will be a subject of discussion among legislators and the governor’s office in the weeks ahead.”

The Columbus-based 1851 Center started as a legal subsidiary of the conservative Buckeye Institute for Public Policy Solutions, but was eventually spun off on its own.

In addition to writing the health-care language that became part of the Ohio Constitution, Mr. Thompson, raised on a western Lucas County farm, is involved in another proposed constitutional amendment that would make Ohio the latest right-to-work state prohibiting workers in a labor bargaining unit from being required to pay fair-share fees in lieu of dues to a union.

Petitions have not been filed yet to place that question on the ballot.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.