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Not a Way Around the Health Mandate, but Could Be a Way to a Public Option

All across the U.S., state officials, mostly Republicans, are looking for a way around the federal mandate in the new health care reform law. Republican attorneys general are challenging it. It is also the focus of ballot measures in Colorado, Arizona, and Oklahoma. Missouri voters already overwhelmingly approved a referendum in early August that says that no resident of that state can be forced to buy health insurance.

A number of House Democrats are even running ads touting their opposition to the health care law.

In that atmosphere, Sen. Ron Wyden, D-Ore., certainly raised a lot of eyebrows recently, when he wrote to a top state health official seemingly suggesting a way around the individual mandate in the recently passed heath care reform law, otherwise known as the Patient Protection and Affordability Care Act (PPACA). But if you've followed Wyden for the past two years, you know that's not the case.

He might have opened a window for states to adopt a public option, for instance, but he is not suggesting a way around the mandate.

Wyden has pursued universal health care (not in the form passed, of course) for years. He voted for the current health care law, albeit with strong reservations that it would truly reform the system, offer choices, and bring down costs. For that reason, the senator, a leading authority in the chamber on health care issues, suggested in late August to the top health official in his state a way to get around the federal law that permits the state some flexibility in order to prescribe its own reforms that might be a better fit for Oregon.

"Oregon has a long history of pursuing flexible strategies for ensuring that all our people have high quality, good value, health care that is affordable to both consumers and taxpayers. Oregonians have demonstrated again and again that a one size fits all approach from Washington is not the best approach for the Northwest," Wyden wrote to Dr. Bruce Goldberg, Director of Oregon's Health Authority.

The senator got a waiver for states written into the PPACA, but there's a test states must first pass that might best be summed up in three words: quality, quantity, and cost. They must have a plan that covers just as many people as PPACA with the same or better level of care that is just as affordable; in other words, they cannot just ditch the law and offer something mediocre.

This could certainly be a way to get a public option implemented in some states, if the Health and Human Services Secretary and state legislature approve (required by the PPACA), something more liberal Democrats fought hard for on the federal level.

PPACA requires that all states have their health care systems compliant with federal law by 2014. That means every American, with some exceptions, will be required to purchase health care, something that sticks in the craw of many voters. Wyden's state waiver doesn't kick in until 2017, but clearly if a state wants to implement something other than what is prescribed in federal law, it will need an exemption from the mandate sooner in order to avoid the fines.

So, Wyden is expected to introduce a fix for this soon, bumping up the start date for state waivers to 2014 or even sooner.

Some have said this is all about politics. The senator is running for re-election, but he enjoys a healthy lead over his opponent, an average of about 15 points, so this does not appear to be politically-motivated.

As for other officials seeking a way around the mandate, Wyden's spokeswoman, Jennifer Hoelzer, offers this suggestion, "If states are really so upset with the individual mandate, there is a provision that will allow them to get out of the mandate if they can come up with a way of reforming the health care system without a mandate." In other words, states don't want the federal reforms, then they can create a system of their own.