05/26/2010 05:12 am ET | Updated May 25, 2011

Come to Texas for Current AG Managed Public Option and Mandates

The big difference between the new federal health care law and the system in Texas is that we in Texas have a public option, suggested by and administered by the office of the Texas Attorney General, to provide a reasonable cost option to parents who are now mandated to provide medical care payment in Texas.

Does the Texas law mandating payment truly contain such an "option?" The Texas AG described the law he championed: "Abbott said Wednesday that while the ChildLink option offers parents another health care choice, the cash payment option remains one of their choices." Press March 24, 2010. "Abbott spokesman Jerry Strickland said... Abbott is simply carrying out existing law. Parents could provide insurance through their employer, through private coverage or through cash payments. ChildLink takes the place of those cash payments with a low-cost health insurance policy, Abbott has said." Press March 24, 2010. The mandate is long standing. The Forbes/Associated Press article continues: "Asked whether Abbott was endorsing or facilitating an existing law that required certain parents to buy health coverage, Strickland said: 'That's the law. It's no new mandate. And it's constitutional to do so.' "

The Texas Attorney General has long agreed to federal requirements for medical child support. What wasn't well known until the AG's health care lawsuit was the fact that, in 2008 and 2009, the Attorney General proposed, stumped for, and passed through the Texas legislature his plan for an Attorney General developed and implemented statewide program for children's health care, in child support cases where the parents didn't have and couldn't obtain health care insurance for their children.

The 2009 law, proposed by the Attorney General, directs the Office of the Attorney General to "develop and implement a statewide program to address the health care needs of children in Title IV-D cases for whom health insurance is not available to either parent at reasonable cost."

The Bill analysis explains the purpose: establish "an insurance pool for certain children in Title IV-D cases, authorizes the courts to ensure that eligible children have health coverage by ordering that the child be rolled (sic) in the pool and requiring the obligor to pay premium costs at a reasonable cost." The Texas law goes further in regulating insurers. An insurer that participates in the Texas state program "may not deny health care coverage under the program to eligible children because of preexisting conditions or chronic illnesses... "

Why is this important? The policy position of the Texas AG and the Texas system he embraced for years and then expanded to include a public option parallel the Congressional findings on the need to require people to cover their health needs and prohibiting insurance companies from discrimination for a pre-existing condition.

The U.S. Constitution's granting of power to Congress to regulate commerce, combined with the evidence of debate and findings of "the national welfare" make the Texas Attorney General's lawsuit a political statement, not a valid exercise of power. Unwittingly, the AG's long term conduct completely aligns with health care reform on the importance of regulating insurance and improving coverage.

Whether or not you oppose the health care bill, the State AGs' lawsuit against the President's newly signed legislation will be analyzed on grounds of whether it holds up as a valid legal challenge to the power of Congress to regulate commerce. In 1944, the Supreme Court decided that insurance was part of Congress' Commerce Clause regulatory authority, exercised for "the national welfare." So, may the decision not to buy insurance be regulated for the public good? May the law's mandate to buy or pay a penalty, with its list of people exempted, be upheld? The U.S. Senate made a number of findings on the importance of coverage regardless of pre-existing conditions. To the surprise of many, these welfare regulatory goals are now known to be consistent with the philosophy behind the long standing Texas Office of Attorney General program, and the 2009 law adding a public option in Texas.

Barbara Ann Radnofsky, 2010 Democratic nominee for Texas Attorney General, has been listed for the past 17 years in "Best Lawyers in America". Currently, she is listed in four areas including health care law and medical malpractice.