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What counts as an executive order?

September 20, 2011

I wandered into contentious territory yesterday when I challenged Rhode Island Right to Life‘s assertion that Rhode Island is the first state to use an executive order to create a health insurance exchange.

I cited Alabama, Georgia, and Indiana as other states that have used executive orders. This chart from the Kaiser Family Foundation features “executive order” under each state for its progress on setting up an online health insurance marketplace.

But as this issue is likely to be a central part of Rhode Island Right to Life’s lawsuit challenging the constitutionality of the exchange, I should have been more precise. The executive orders in Georgia and Alabama are somewhat different. These are the footnotes for those states below the Kaiser Family Foundation’s chart-

For Alabama-

Gov. Robert Bentley issued an Executive Order on June 2, 2011 creating the Alabama Health Insurance Exchange Study Commission to make recommendations as to whether to create an Alabama Exchange.

And for Georgia-

Gov. Nathan Deal issued an Executive Order on June 2, 2011 creating the Georgia Health Exchange Advisory Committee to assess whether Georgia should create an Exchange.

So these executive orders didn’t exactly create  exchanges, they created committees to consider whether to create an exchange. By the way, if states don’t create their own websites for selling health insurance, federal law mandates that they offer a national version of the same thing.

Now, let’s look at the footnote for the Indiana executive order-

Gov. Mitch Daniels issued an Executive Order on January 14, 2011

Here’s the last portion of the executive order-

There are some slight differences here- phrases like Indiana is “conditionally establishing and operating an exchange” because it is “assuming there is no forthcoming federal guidance that changes Indiana’s decision.”  Enough to not count as an executive order establishing a health insurance exchange? What do you think?

One Comment leave one →
  1. September 20, 2011 4:58 pm

    Thanks for the clarification Megan, but I think that Jason Millman , the expert health care reporter at Politico Pro, was correct in reporting yesterday that: “Rhode Island Gov. Lincoln Chafee established a health insurance exchange in his state through executive order Monday, becoming the first governor to exercise the office’s power to start up the new health insurance market required by the Affordable Care Act.” The fact is that the Indiana Order is not only conditional, the preamble also makes it pretty clear that this is a very different animal than Chafee’s Order. Indeed, Indiana has filed a suit over the PPACA. Perhaps you might consider doing a bit more digging before declaring a statement as “untrue.” At the very least you might wish to see what expert journalists like Jason Millman are have written.

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