Three health associations representing state insurers, hospitals, and doctors have defied Governor Tim Pawlenty’s effort to resist implementing key provisions of the Affordable Care Act and sent “valuable information and suggestions” to HHS to help the agency in “promulgating future rules that will govern Minnesota’s health insurance exchanges and insurance markets.” The move comes just days after Minnesota joined one other state in refusing a million dollars in federal grants to begin planning its health exchanges.

Minnesota Departments of Health, Human Services and Commerce had prepared to send comments regarding the Exchange-related provisions in the Affordable Care Act, but never did after the Pawlenty administration claimed to have missed the submission deadline. The Minnesota Council of Health Plans obtained the drafted comments through a freedom of information request and sent that, along with a cover letter, to the federal government. The Minnesota Hospital Association, and the Minnesota Medical Association joined the effort.

The cover letter, obtained by the Wonk Room, reads:

The health care community in Minnesota, including health plans, hospitals and health systems, providers, employers, state agencies and consumers, have been actively and collaboratively evaluation and assessing the value than insurance exchange will bring to our marketplace and the communities we serve. While we are disappointed that Gov. Tim Pawlenty chose not to apply to your department for Exchange planning funds, stakeholders continue to work collectively to plan for the implementation of an Exchange in Minnesota.

Responding to the request for comments, the Minnesota agencies said that they anticipate “that Exchange-related issues will be discussed in our upcoming Legislative Session and that many creative ideas and questions will arise over the next few months and years.”

In August, Pawlenty issued an executive order preventing the state from applying for federal funding, but accepted abstinence-only dollars and $10 million in grants. None of the Republicans running for Governor have endorsed Pawlenty’s order.

In recent days, Republicans have been trying to embarrass the federal agencies that are implementing the Affordable Care Act by requesting a series of reports suggesting that health reform is falling short of expectations. But this approach has resulted in a rather bizarre and contradictory message.

On Monday, the Congressional Research Service (CRS) released a memorandum requested by Sens. Tom Coburn (R-OK), Orrin Hatch (R-UT) and John Cornyn (R-TX), which found that HHS “missed seven deadlines mandated by the new law.” “Future months are unlikely to see HHS improve its record of compliance,” Coburn wrote on his Web site. “The Department failed to meet one-third of 22 deadlines in six months, yet now the Department has less than three months to meet another 29 requirements required by law.”

On Wednesday, in response to a request from Cornyn, CRS issued a different report showing that “of the 12 reform-related final rules issued this year by the Health and Human Services (HHS) Department, 10 came in the form of ‘interim final rules,’ which don’t include a public comment period.” Cornyn responded to the report by offering legislation forcing HHS to consider public comments for all new regulations.

Cornyn is trying to have it both ways. Forcing the agency to abandon the common practice of using interim final rules to meet legislative deadlines would only slow down the implementation process, bolstering the GOP’s claim that HHS was not complying with the law. Interim final rules allow federal agencies to issue regulations before responding to every public comment it receives. Agencies are required to respond to all comments and can address any concerns in the final rule.

In fact, relying on the very same technique that CRS used to identify the interim final rules in the ACA, I searched the GPO Access electronic rulemaking database using the advanced search mechanisms that allow identification of only final rules, and searching the phrase “Medicare Prescription Drug, Improvement, and Modernization Act of 2003″ — signed into law by President Bush — found at least 6 interim final rules. Turns out this is a fairly common practice:

- “We implemented section 303 and 304 of the MMA in an interim final rule published in the Federal Register on January 7, 2004.

- Medicare Program; Competitive Acquisition of Outpatient Drugs and Biologicals Under Part B; Interim Rule

- Medicare Program; Physicians’ Referrals to Health Care Entities With Which They Have Financial Relationships (Phase II); Interim Final Rule

- January 6, 2004 interim final rule with comment period (69 FR 828), section 411(a)(1)(B) of Pub. L. 108-173 provided that hold harmless transitional corridor provisions shall apply to sole community hospitals located in rural areas.

- April 6, 2004 interim final rule with comment period excludes radiopharmaceuticals from the data reporting requirements that apply to Medicare Part B covered drugs

- On January 7, 2004, an interim final rule was published to implement provisions of the MMA applicable in 2004 to Medicare payment for covered drugs and physician fee schedule services.

Cornyn’s office did not return calls for comment.

Despite Gov. Rick Perry’s (R-TX) strong opposition to the Affordable Care Act and the state’s participation in a lawsuit challenging reform’s constitutionality, the Select Committee on Federal Legislation of the Texas House held a four hour hearing yesterday on state efforts to implement health reform. Witnesses testified that Texas had applied for nine different grants totaling an estimated $50 million and was drafting options for establishing exchanges and taking various other stops (like simplifying the application processes for Medicaid) to comply with the federal legislation.

Insurance Commissioner Mike Geeslin testified that his office was receiving questions about “coverage for dependents and children,” “pre-existing conditions,” “the new federal risk pool or the pre-existing condition insurance plan, and then they want information about the effective days more among the lines of what I need to do and when.” This surprised Rep. Susan King (R), who wanted to know if Texans were complaining about the new law:

KING: On the complaints…what does that mean? There has not been a single complaint?

GEESLIN: That’s not to say you can’t get 10 in the office today.

KING: But you’ve had nobody really calling and being concerned? That’s really amazing. I just didn’t know….

Watch it:

Gleesin promised to check how the agency codes public feedback, but if the Committee’s own hearing is any indication, the state — save its politicians — seems far more interested in learning how ACA can help Texas than devising ways to repeal it. (H/T: Dallas Morning News’ Robert Garrett)