Ben Nelson: From 60th vote to ACA’s implementationNelson will act as an intermediary between the states and the federal government.
By JASON MILLMAN | 1/23/13 11:39 PM EST
Former Sen. Ben Nelson’s Obamacare legacy won’t end with the so-called Cornhusker Kickback.
The Nebraska Democrat, the holdout who eventually provided the key vote for President Barack Obama’s health care law, will head up the nonpartisan National Association of Insurance Commissioners — and that means he’ll be way more involved in the nitty-gritty of Obamacare than anyone could have imagined three years ago.As CEO, earning nearly $1 million a year, Nelson will be a leading intermediary between the states and Washington.
The states are trying to implement the wide-ranging law without sinking their health insurance markets — or giving up too much of their traditional regulatory turf. And the U.S. Department of Health and Human Services is working like mad to get the law ready in time for 2014 — including in states that aren’t exactly bending over backward to help.
Nelson’s hiring gives the NAIC a high-profile leader who knows the ins and outs of state and federal policy at a time when states are struggling to understand the new environment. Though Nelson’s portfolio includes major items, like storm recovery and insurance-related aspects of Dodd-Frank, the immediate Obamacare deadlines put health care concerns front and center before the major coverage expansions take effect in 2014.
Nelson’s post-Senate gig offers cynics one of those “only in Washington” moments: The conservative Democrat who nearly doomed the president’s landmark health care law is getting paid to help carry it out now that he’s in the private sector.
While plenty of health care groups have spent the past few years throwing jabs at Obamacare, that’s not the NAIC style. The regulators have been thinking through policy questions and seeking common ground in an industry where that’s often hard to come by.
“There’s a division of opinion and positions within the NAIC, and the NAIC has been able to navigate very carefully through these differences of opinion,” Nelson said on a press call Wednesday when he was introduced in his new role.
The call came soon after reports that Nelson also will be joining the public-affairs firm Agenda as a senior adviser.
Nelson himself has a complicated history on the health care law. He skated close to sinking it in 2009 — but after he announced he would not seek reelection, he began speaking out more favorably. He criticized “activist” Supreme Court judges who could strike it down and clashed with Nebraska’s Republican governor for refusing to set key parts in motion.
Now, Nelson goes from being an advocate for the law to backing states’ ability to carry it out on their terms.
It’s an odd position given that his vote was so much in doubt in December 2009.
During the drafting of the Affordable Care Act, Nelson withheld support for weeks until striking a deal to become the 60th Democrat to support the bill, allowing the Senate to take its memorable Christmas Eve vote. Nelson gave his support after a provision bringing in bonus Medicaid dollars for Nebraska was added — a move Republicans were quick to label the Cornhusker Kickback — a name he never quite lived down.
Though the provision was dropped from the final version, and Nelson denied trading his vote for the extra Medicaid funds, his political standing suffered. The failed Cornhusker Kickback drew so much bad ink that even Supreme Court Justice Antonin Scalia mentioned it disparagingly during last year’s marathon oral argument on the health care law.
Despite his complex history with the law, Nelson’s reputation as a centrist and his extensive insurance background are drawing some early positive reviews of the NAIC’s newest hire.
“The approach of the NAIC to the Affordable Care Act over the last three years has been one of trying to deal with practical problems rather than getting caught up in politics,” said NAIC consumer advocate Tim Jost, who backs the law. “I think Nelson is a good leader to continue to do that.”
The head of the Washington trade group representing the health insurance industry also called Nelson a “terrific choice” to run the NAIC.
“He has the experience and expertise needed to lead the organization during this critical time,” Karen Ignagni, CEO of America’s Health Insurance Plans, said in a statement.
Besides serving two terms in the Senate, Nelson also served two terms as Nebraska’s governor. He was director of the Nebraska Insurance Department for a year in the 1970s, and he was the NAIC executive vice president and chief of staff from 1982 to 1985.
His return to the organization, Nelson pointed out, is under a much different regulatory environment than 30 years ago. The feds are getting more and more involved in insurance to the unease of many state regulators.
“There’s a role for the federal government, but the role is limited,” Nelson said.
That role is going to get a lot bigger than most predicted when the health law passed. Just 18 states and Washington have the initial go-ahead from HHS to run their own health insurance exchanges, meaning the feds will be running at least some parts of the exchange in well more than half of the country. Insurance commissioners opposed to the law admit there’s really little to stop it from going into effect now, but they’re worried about how states can retain their traditional roles overseeing insurance markets when the federal exchanges are running.
“The most important thing to me is what effect, if any, is a federal exchange going to have on the regulatory authority of the North Dakota Insurance Department,” Insurance Commissioner Adam Hamm said on the Wednesday NAIC press call.
Aside from exchanges, the ACA requires states to enforce a number of other insurance reforms, or else they risk HHS stepping up regulation of their health insurance markets, as department officials have warned the states recently.
“I think [the NAIC] needs some strong leadership at this point to get the states to preserve states’ role in health insurance regulation by getting the states to move forward with the market reforms,” said Jost, who predicted only a few states might cede enforcement to the feds.
For what it’s worth, the Obama administration says it wants states to retain oversight of health insurance, so HHS has been encouraging ACA-resistant states to partner with the department on some exchange functions. Those reluctant states, however, say they can’t sign onto anything until they get a fuller picture from the administration on exchanges.
Job No. 1 for Nelson might be just improving the lines of communication between the state regulators and HHS. With less than nine months until exchanges open for enrollment, the commissioners say many questions about federal-run exchanges remain unanswered.
“There’s still a lot of confusion and uncertainty as to what an exchange is,” Pennsylvania Insurance Commissioner Michael Consedine said on the NAIC call.