Dr. Metz contends that President Trump’s “States Rights super waiver” executive order will allow Oregon to set the example.
Dr. Samuel Metz

OPINION — Oregon’s greatest obstacles to solving our healthcare crisis are neither special interests nor our President.

Federal legislation stops us cold. The recently released RAND study of universal care in Oregon confirms what every similar study discovered: Once an ambitious state overcomes the impediments of the Affordable Care Act (ACA), Medicaid, and the IRS, it hits the brick wall of the Employee Retirement Income Security Act.

More commonly known as ERISA, this 1974 federal legislation was intended to protect employee retirement plans by sweeping them under federal jurisdiction. As an afterthought, ERISA included employee healthcare benefits as well.

What does this mean for Oregon? Our legislature may regulate insurance companies, but employee healthcare benefits are off limits. A comprehensive healthcare initiative is impossible.

A “States Rights super waiver” executive order from President Trump removes these federal obstacles.

What would it say?

Section 1332 of the ACA already permits the Secretary of Health and Human Services (HHS) to waive ACA requirements for states passing legislation that provide comparable healthcare coverage to comparable numbers without increasing federal debt. But states receiving this ACA waiver must apply for a second waiver under Section 1115 of Medicaid (as Oregon did for the Oregon Health Plan in 1993 and again in 2012 for Coordinated Care Organizations (CCOs)), plus a third waiver from the Secretary of the Treasury to get right with the IRS.

Even with these waivers, there are no exemptions from ERISA.

President Trump can fix that.

His executive order would allow the Secretary of HHS to issue a single “super waiver” to exempt qualifying states from all three federal laws: the ACA, Medicaid, and the healthcare benefit section of ERISA.

Congressional interest in moving healthcare to the states runs exceptionally high. Secretary of HHS nominee Dr. Tom Price, currently a US Congressman, said, “We think it’s important that Washington not be in charge of health care.” Sen. Mike Enzi, Chair of the Senate Budget Committee said of a recent House healthcare proposal, “Today, we take the first steps to repair the nation’s broken health care system, removing Washington from the equation …” Speaker Paul Ryan’s website says, “…we believe states and individuals should have better tools, resources, and flexibility to find solutions that fit their unique needs.”

Even Republican governors want fewer federal impediments and more state flexibility.

With a “States Rights super waiver,” President Trump’s executive order honors all these sentiments. The challenge of designing a workable healthcare plan no longer belongs to Congress. Instead, each state is empowered to create its own statewide program, answering its own needs.

Ironically, the language for this executive order is already written. In the 114th Congress, US Rep. Jim McDermott submitted HR 3241 allowing states to create their own healthcare programs.

Democrats hated the bill because they thought it attacked the ACA. Republicans hated it because they thought it supported the ACA. Without cosponsors or hearings, the bill died a quiet death. But this failed legislative attempt by a rogue Democrat to create a “super waiver” might succeed as a Republican executive order.

On his first day in office, President Trump attempted to dismantle the ACA with a complex and lengthy executive order. It left most people uncertain of its meaning. In contrast, a “States Rights super waiver” executive order would be crystal clear. Individual states, including Oregon, are free to implement statewide healthcare programs that provide better care to more people for less money without fear of violating federal law.

Supreme Court Justice Louis Brandeis created the phrase, “Laboratories of democracy,” in which “a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Oregon proudly demonstrates a decades’ long tradition of courageous healthcare policy innovation. President Trump’s “States Rights super waiver” executive order will allow Oregon to set the example, showing our determination to provide sustainable, affordable, and quality healthcare to everyone in our state.

Dr. Samuel Metz is a retired anesthesiologist in Portland. He is a member of Oregon Physicians for a National Health Program and a founding member of Mad As Hell Doctors. Both organizations advocate for universal access to healthcare.

Jan 23 2017