As Cuccinelli Steps Up Challenge To Health Law, General Assembly Continues To Implement It

Yesterday, as Virginia Attorney General Ken Cuccinelli announced he will seek immediate review by the U.S. Supreme Court “of the state’s constitutional challenge to the federal health-care overhaul,” the Virginia General Assembly passed HB 2434, “A BILL to state the intent of the General Assembly to create and operate a health benefits exchange.”

The measure, which seeks to implement one of the central tenets of the law Cuccinelli is challenging, passed the Assembly overwhelmingly in a vote of 95-3. Among other things, it instructs the Governor to present recommendations “to the General Assembly by October 1, 2011” for how best to structure the exchange:

Be it enacted by the General Assembly of Virginia:

1. § 1. That it is the intent of the General Assembly that the Commonwealth create and operate its own health benefits exchange or exchanges, hereafter referred to collectively as the “Virginia Exchange,” to preserve and enhance competition in the health insurance market. The purpose of the Virginia Exchange shall be to facilitate the purchase and sale of qualified health plans in the individual market and to assist qualified small employers in facilitating the enrollment of their employees in qualified health plans offered in the small group market. To accomplish this purpose, the Virginia Exchange shall, at a minimum, meet the relevant requirements of the Patient Protection and Affordable Care Act (P.L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (P.L. 111-152) (collectively referred to as the “Affordable Care Act”), regarding the establishment of an American Health Benefit Exchange or Small Business Health Options Program by the prescribed deadline imposed by the Affordable Care Act in order to avoid development and implementation of a federal exchange in the Commonwealth.

Indeed, most of the states that are suing the federal government over the law are also implementing the measure and accepting federal grants, but the rift between the implementation process and the political repeal theater is most striking in Virginia given that state’s eagerness to challenge the law.

Virginia has been a bit schizophrenic towards the law for some time. After Judge Henry Hudson sided with Cuccinelli in December, “a state panel appointed by his own governor, Bob McDonnell found that ‘health reform is worth doing‘ and urged swift implementation of the bill, even as legal challenges against it proceed.”