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Wyden: Health Care Lawsuits Moot, States Can Opt Out Of Mandate

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Sen. Ron Wyden (D-Ore.) has a message for all the attorneys general and Republican lawmakers who are threatening lawsuits and claiming that an individual mandate for insurance coverage is unconstitutional: You don't have to abide by it -- just set up your own plan.

The Oregon Democrat isn't inviting opponents to defy the newly-enacted health care law. Instead, he's pointing out a provision in the bill that makes moot the argument over the legality of the individual mandate.

Speaking to the Huffington Post on Tuesday, Wyden discussed -- for one of the first times in public -- legislative language he authored which "allows a state to go out and do its own bill, including having no individual mandate."

It's called the "Empowering States to be Innovative" amendment. And it would, quite literally, give states the right to set up their own health care system -- with or without an individual mandate or, for that matter, with or without a public option -- provided that, as Wyden puts it, "they can meet the coverage requirements of the bill."

"Why don't you use the waiver provision to let you go set up your own plan?" the senator asked those who threaten health-care-related lawsuits. "Why would you just say you are going to sue everybody, when this bill gives you the authority and the legal counsel is on record as saying you can do it without an individual mandate?"

The provision actually was taken directly from Wyden's Healthy Americans Act -- the far-more innovative health care reform legislation he authored with Republican co-sponsors. In that bill there is also an individual mandate that would require Americans to purchase insurance coverage. But states that found the mandate objectionable could simply create and insert a new system in its place. All it would require is applying for a waiver from the Department of Health and Human Services, which has a 180-day window to confirm or deny such a waiver.

That language has been inserted, almost verbatim, into the bill Obama signed into law on Tuesday. And if there is any confusion about how much leverage it gives states to drop the mandate, Wyden cleared it up months ago during a hearing at the Senate Finance Committee.

"So let us review how the waiver language works now, because my reading of what we have in the bill now is, if a state can demonstrate that they can meet the criteria -- particularly on cost containment, improving the delivery system -- they can do it without an individual mandate," the senator said at the time. "And can I ask counsel, is that a correct reading of the Waiver Amendment that I offered the chairman has accepted at this point?"

The counsel replied: "Yes."

"The individual mandate has always been one of the most contentious aspects of health reform. I think every United States Senator believes that citizens should show some personal responsibility. That's something that is widely accepted. Unfortunately, an individual mandate can mean something different, and that's why the issue has been so contentious," Wyden said. "But counsel has now indicated -- and it was in line with what I thought we had drafted -- if you can meet the requirements of the waiver in the mark, you can do it without an individual mandate."

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