Polis’ Vision For Colorado’s Health Care Future Is Underway, But An ACA Court Challenge Could Upend The Effort

August 1, 2019
Gov. Jared Polis in his office at the state Capitol on July 31, 2019.Gov. Jared Polis in his office at the state Capitol on July 31, 2019.Alex Scoville/CPR News
Gov. Jared Polis in his office at the state Capitol on July 31, 2019.

Colorado took two steps forward in its health care reform plan Wednesday, but Gov. Jared Polis has a big worry.

A federal court case could blow the nation’s Affordable Care Act, known as Obamacare, out of the water — and upend Colorado’s efforts, too.

Polis says if the ACA is thrown out, “the individual market goes away.” 

“The Medicaid expansion, all that could go away because of the case in court or because of actions of those in Congress who are still intent on repealing the Affordable Care Act without a replacement,” Polis said. “So those are things that we're watching because those would really set us back a lot in terms of our plans to save people money on healthcare.”

The danger, he added, “is it would literally be replaced with nothing.” 

“And it wouldn't just be in Colorado, but across the country, tens of millions of people would be thrown off their plan and costs would go up for others,” Polis said.

On Wednesday, the federal government approved a Colorado reinsurance program aimed at controlling health care costs. Basically, the state would help insurance companies cover the expenses of their most expensive patients, a step that’s expected to lower premiums for private insurance by an average of 18 percent a year in Colorado.

Also this week, the Trump administration took its first step toward allowing states, including Colorado, to import drugs from Canada. 

“Prescription drugs are about 20 percent of total healthcare cost,” Polis said. “And Americans spend five, eight, even 10 times as much for the exact same prescription drug as they do in Canada. So there's ample opportunity for savings there.”

Health care was one of Polis’ signature issues at the legislature this year, along with a new law that tightens state safety standards for oil and gas development and gives local governments more control over drilling. 

The new law has tossed the Polis administration into a dispute with Weld County, the state’s largest oil and gas producer. Commissioners there want to use the law’s new local powers to expand drilling. The state responded with a warning that it retains ultimate power over energy development.

Polis said locals get authority over zoning for well sites, and issues such as noise control and traffic, but the state will continue to enforce safety standards like minimum distances from homes. 

The new law “didn't create any change in the minimum safety requirements.”

“In fact, if anything, we strengthened them because we are putting health and safety first,” Polis said. “So I mean, science will lead the way with regard to making sure that none of the activities that counties are allowing would endanger the residents of that city or county.”

Oil and gas boosters aren’t the only ones mad at the governor. As CPR reporters met with the governor in his office Wednesday, protesters disrupted a nearby meeting of the Colorado Oil and Gas Commission, arguing the state must do more to limit drilling in the face of climate change. 

The protesters, some wearing face masks, chanted: “Jared Polis is a joke, climate going up in smoke.” 

Alex Scoville/CPR News
Gov. Jared Polis in his office at the state Capitol on July 31, 2019.

Interview Highlights

On priorities for his mental health task force:

We really need to have a more patient-focused, person-focused behavioral health system so people get the real ongoing treatment that they need … it really should be about prevention and early treatment and making sure that we have a behavioral health system that prevents people from falling into crisis, which is costly not only for them but for taxpayers and society.”

On further gun control legislation for school safety:

I think a couple of members have indicated that they may or may not be discussing that ... It's hard to form a bipartisan consensus on gun control. Usually, it's been Democrats alone that have pursued those measures, maybe with some Republican support in the field and Republican sheriffs and police chiefs, but there hasn't been as much bipartisan support for that in the building.”

On his chile war with New Mexico's governor:

“So I think it's clear that Pueblo chile is far better than Hatch chile of New Mexico … I think I just read a couple of days ago that NASA is going to take Hatch chile to space. And so I think it showed that New Mexico chile is actually fleeing the planet.

Full Transcript

This is Colorado Matters — from CPR News. I'm Ryan Warner.

Colorado was waiting for permission from Uncle Sam to move ahead with plans that might bring down healthcare costs. Well, Sam gave his blessing... which means, first off, that the state can move forward with a reinsurance program. Essentially, it's a way to cushion the blow of the most expensive patients, and make policies on the individual market cheaper. It's where we started our regular conversation — at the Capitol — with Democratic Gov. Jared Polis.

Ryan Warner:
Governor, thanks for being with us again.

Gov. Jared Polis:
Always a pleasure, Ryan.

RW:
Your administration estimates reinsurance will bring down premiums about 18 percent on average. When that estimate came out, state representative Bob Rankin, a Republican from Carbondale, said it was great but that it wouldn't fundamentally reduce healthcare costs, like, the bill for an ER visit, for example. What can the state actually do to address the underlying costs of care?

JP:
Our work to save people money on healthcare doesn't end there. We're doing a lot of work around out-of-network surprise billing and reining that in. There was some rare good news out of the White House from (Health and Human Services) Secretary Azar about their willingness to work with us on drug importation from Canada to save people money on prescription drugs. Colorado and Florida both passed enabling laws to do that. We pushed very hard for that.

Prescription drugs are about 20 percent of total healthcare cost. And Americans spend five, eight, even 10 times as much for the exact same prescription drug as they do in Canada. So there's ample opportunity for savings there. Not just for those who purchase prescription drugs. And I want to point this out, again, even people who are very healthy, part of what you're paying for in your insurance premium is the high cost of prescription drugs.

RW:
You see those as interrelated?

JP:
Absolutely. Premiums come down.

RW:
So do you still need to move ahead as a state on the importation of drugs from Canada if it seems the federal government is moving on its own?

JP:
No, they're not importing any of it themselves. They're simply clarifying and establishing the rules under which we as a state can do that, which were absent before. And we're excited about their aggressive timeline for defining that. They mention that, I think, their initial draft rules will be out in about 30 days. You know, some comment period, but I think within three to five months, we should be able to more formally design the program that will receive a federal waiver under this new policy.

RW:
It's fascinating. Why not just address the costs of prescription drugs on U.S. soil as opposed to creating this program that says well, we'll just get them from another country?

JP: Yes, well we should tell congress that, Ryan. And I used to be in congress and I did support, of course, allowing Medicare to negotiate for prescription drug rates. That's the big piece that the federal government could do. We have another federal payer, the VA system, they are able to negotiate for prescription drug rates. So you have the VA system today, a federal payer, paying 30, 40 percent less for the exact same prescription drug than Medicare, which is obviously much bigger and moves the needle a lot more.

RW:
It's almost like having a control group for a study.

JP:
It is. It works. It proves it works. Let's roll it out. So yes, congress really should do something on prescription drug pricing, basically allowing Medicare to negotiate better rates. And that would then follow through on the private sector reimbursement models, which are largely based on Medicare. But we're not going to use the inaction of congress as an excuse not to take state action.

RW:
So the Trump administration has given Colorado the green light on reinsurance. It seems that you're getting support from this White House on the importation of drugs. What does that tell us about the state's relationship right now with President Trump and his agencies?

JP:
It is a little bit strange because at the same time, they are, thankfully, approved our insurance, which we got support of our entire congressional delegation — all seven representatives, both senators. They're also waging war on the underlying Affordable Care Act itself. And one of the-

RW:
This is playing out in a Texas courtroom.

JP:
Absolutely. So the danger, I mean, reinsurance, all that goes away. I mean, the individual market goes away. The Medicaid expansion, all that could go away because of the case in court or because of actions of those in congress who are still intent on repealing the Affordable Care Act without a replacement. So those are things that we're watching because those would really set us back a lot in terms of our plans to save people money on healthcare.

RW:
If the end result of that court case in Texas is that the Affordable Care Act, aka Obamacare, is struck down entirely, what does Colorado do? Are you planning for that contingency?

JP:
Well first of all, it'd be disastrous. It would increase rates in the individual market for companies. It would thwart a lot of the efforts that we're undertaking to reduce costs and yes, we would need to use the flexibility we had as a state to try to make sure that there was something that came in and replaced it as well. I mean, even when it was being debated in congress, the main issue was if you're going to repeal it, please have a proposal to replace it with something. The danger, in the court's taking action, is it would literally be replaced with nothing. And it wouldn't just be in Colorado, but across the country, tens of millions of people would be thrown off their plan and costs would go up for others.

RW:
Would you call a special session if lawmakers weren't meeting at the time of the ruling?

JP:
Well again, it depends, we have to see what the ruling is. I mean, is it something that would take effect right away, a future year, how much time do we have? We would not be the only state in this situation. All 50 states and the territories would have a healthcare crisis on our hands if somehow the courts threw out the Affordable Care Act.

RW:
It sounds like it's hard to plan for because it's not exactly clear what the outcome will be. Do I hear that?

JP:
Of course, there's no decision. You're asking a hypothetical here. I mean, what are they throwing out? Are they throwing out this part or that part or what is the decision? So the minute there's a decision, we'll get our analysis of it, we'll call in Republican and Democratic leadership and we'll discuss the path forward for Colorado.

RW:
Let's talk about oil and gas development and a law passed this spring that changes standards at both the state and local levels. Statewide, health and safety are now the most important criteria for permitting wells. At the local level, cities and counties have more power than they did before to decide what gets developed and where. There's now a dispute between your administration and Weld County, which has the highest oil and gas production in the state. Essentially, Weld says ‘hey these new local powers give us the right to expand development.’ They've created, in fact, their own oil and gas energy department. The state has come back with a warning that it maintains supremacy. So Gov. Polis, which is it? Is it more local control or more state control of oil and gas?

JP:
Well I'm thrilled and welcome the Weld County commissioners’ newfound support for local control. What effectively this law does is it gives the siting and the zoning — the ability of the commissioners, or in the case of a city, the city council — to do that. It doesn't nullify the statewide setback requirement. It's 500 feet in most cases. So a city or county can't say it's going to be two feet from your living room. It's dangerous. People could die. I mean, counties and cities don't have the ability to actually endanger their folks. I don't think they would want to anyway. I mean, they probably face liability and their constituents would be outraged in any case.

So what this does do, though, is it makes sure that we can address the real conflicts that exist between homeowners and where and how oil and gas activities are done by empowering the cities and counties to have a say in where and how they're done. And it's not just where. Where is part of it. It's also ‘hey, no loud sirens at midnight or two in the morning.’ Stopping operations for a period of the day. Make sure the heavy truck traffic doesn't occur while your kids are going to school. All those types of considerations can be what cities and counties work on.

RW:
I don't think anyone in Weld County is saying we want to build a well two feet from someone's living room. But they are wondering where their local control ends. They're struggling with that.

JP:
We expect, and we said this during the debate around 181, that 181-

RW:
This is the bill?

JP:
The bill that allowed for local control over oil and gas would not affect oil and gas activities in Weld County very much, if at all, because the Weld County commissioners are very pro oil and gas. They want oil and gas there. In a county like Adams County or Arapahoe County, they're not anti- oil and gas, they're not pro- oil and gas. They just want that balance and they try to figure out where and how it should occur. So, unless the Weld County commissioners want to interfere with the oil and gas industry, there shouldn't be much impact in that county.

RW:
I think they'd see it as emboldening the industry even further.

JP:
Well again, it didn't create any change in the minimum safety requirements. In fact, if anything, we strengthened them because we are putting health and safety first. So I mean, science will lead the way with regard to making sure that none of the activities that counties are allowing would endanger the residents of that city or county.

RW: 
While Weld County moves to increase its oil and gas development, people who want tighter controls protested Wednesday — saying the state isn’t doing enough to make drilling safe. As we spoke to Polis in his office, demonstrators were at a meeting of the state Oil and Gas Conservation Commission. To emphasize the threats they see to air and climate, they coughed whenever they heard a statement they thought was untrue. And they took the governor on directly:

(Crowd chanting):
Jared Polis is a  joke. Climate going up in smoke. Jare Polis is a joke. Climate’s going up in smoke.

RW: 
Wednesday’s hearing dealt mostly with technicalities. The decisions are expected to get bigger — and more controversial — soon.

RW:
You’re with Colorado Matters -- I’m Ryan Warner … and our guest is Governor Jared Polis. Our regular interview continues after a break … with whether he thinks it should be harder to recall lawmakers. And … a chile challenge. This is CPR News.

RW:
This is Colorado Matters from CPR News. I’m Ryan Warner. Let’s rejoin our regular conversation with Democratic Gov. Jared Polis — recorded in his office Wednesday at the State Capitol. His administration brokered a deal with automakers, giving them incentives to bring more electric vehicles to market. He says it was prompted by a growing emergency.

JP: 
We have a air quality crisis across the Front Range we’ve had, now, I think, you know something like 15 of the last 20 days, or something like that have been in excess of the ozone levels that are indicated for health. I mean there’s been days in the last few weeks where youth and seniors have been advised to remain indoors and athletes should not be out.”

RW:
Cars are partly to blame. Polis says electric vehicles run cleaner and, ultimately, will be cheaper for consumers. Now, California has mandated that automakers offer electric vehicles to help meet new clean air standards. I asked Polis about giving car companies state help to broaden their offerings.
   
JP:
We have about 20 models available in Colorado. There're about 41 available in the states that have these standards. We would like to get more of those inexpensive, less-expensive electric vehicle models available for Colorado consumers who want them, as soon as next year.

RW:
But you've done this in a different way from California, by offering incentives.

JP:
It's a negotiation. We had to have the, of course, commitment to move forward. We worked with individual automobile manufacturers, their associations, on getting their commitments to bring those electric vehicles to market in Colorado sooner rather than later. So the electric vehicles are increasingly a very good option. Many of them, with the tax credits, wind up even being less expensive and, of course, the operating costs are significantly less.

RW:
If that's true. if there are all these benefits to these vehicles, wouldn't they just sell on their own without any kind of state intervention or negotiation?

JP:
And they are, in Colorado, thankfully leads the way … 

RW:
Well, not enough apparently without you getting involved though...

JP:
Well, we're only involved to bring more choices to Colorado consumers. I mean it's hard for a Coloradan to buy something that isn't for sale here. It's not impossible. I mean they could theoretically go to another state and buy it and drive it back. It doesn't happen that often. Most people aren't going to go through that to buy a car. So we want those electric vehicles to be available at Colorado dealers for sale as soon as possible and many more models will be starting next year.

RW:
I'd like to look at some issues that will probably come up next January at the legislature. There are committees at work now coming up with proposals. The first is your Behavioral Health Task Force. We know the suicide rate is very high here. The state recently settled a federal lawsuit that requires it to improve several mental health services. Obviously, behavioral health covers a lot of ground, but in your mind, Jared Polis, what's the biggest most pressing issue in this arena?



JP:
It's a complex area, so we convened a Behavioral Health Task Force. They are going to be issuing recommendations to us to reinvent behavioral health, putting really people first, not systems first, because there're too many people that fall through the cracks and that's one of the reasons we see the high suicide rates. Obviously, suicide, worst outcome. We also just see depression, people who aren't able to work or support themselves and their family — all of those things and we could do a lot better here in Colorado.

RW:
Let me try on something you said, putting people first, not the system. Can you give me an example of where the system has sort of trumped people?

JP:
I'm sure you have listeners who have interacted with it and I'm sure they felt that way at times. They feel that they are sort of a cog in the wheel and whether it's the services they don't get or sort of a checkoff box on somebody's list. We really need to have a more patient-focused, person-focused behavioral health system so people get the real ongoing treatment that they need to cover their mental health, their dignity, support themselves, be enthusiastic and love life here in our great state, Colorado.

RW:
This state already spends $1 billion a year on these services. Do you think improving behavioral health will require a new investment?

JP:
Well, we hope that if we do behavioral health right, it should save money because there's so much wasted today. Wasted in our prison system. Often our prison system is the interface with people with behavioral health issues, very ineffective from a cost perspective and from a results-perspective. So it really should be about prevention and early treatment and making sure that we have a behavioral health system that prevents people from falling into crisis, which is costly not only for them but for taxpayers and society.

RW:
I'm also interested in this committee looking at improvements to school safety. This is happening in the kind of intercession. What's your biggest priority there?

JP:
Some of it falls into the behavioral health realm, making sure that kids have access to counselors and support. Some of it has to do with the physical security of schools with single-point entry and making sure we have as many strong relationships between school resource officers in schools as possible.

RW:
Is gun control on the table for that committee?

JP:
They haven't told us what is on or off the table. I don't know.

RW:
Do you hope it is?

JP:
I think a couple of members have indicated that they may or may not be discussing that. I mean I just don't know if that's something they're discussing. It's hard to form a bipartisan consensus on gun control. Usually, it's been Democrats alone that have pursued those measures maybe with some Republican support in the field and Republican sheriffs and police chiefs, but there hasn't been as much bipartisan support for that in the building.

RW:
Another national ranking here, Colorado has the highest rate of teen vaping, the use of e-cigarettes in the country. New York has banned sales of tobacco and e-cigarettes to anyone under 21. Other states have increased funding to cut vaping. Do you think Colorado should ban vaping for teens?

JP:
Well, there's a real loophole there and we tried to close it this last session and we will certainly try again in the future. Right now, vaping escapes the tobacco tax entirely and yet it is a nicotine product. We view the tobacco tax as a nicotine tax and we don't think that vaping should be subsidized in effect by not being subject to the same types of pricing and regulation that regular tobacco products are.

RW:
I mean it's interesting, I asked about a ban, but you mentioned a tax.

JP:
Well, I have not heard anybody propose banning vaping. Not something that we would support-

RW:
For teens.

JP:
Oh, for teens, raising the age you mean? Yeah, that's something that I think is certainly being considered, but again, as long as it is subsidized by taxpayers, it will be cheaper. And whether 14-year-olds and 15-year-olds are getting it legally or illegally, they all have friends that are old enough to buy it. And I think the bigger issue that'll have a bigger impact is if we can close down this loophole and effectively make sure that the treatment under the tax code is the same as cigarettes.

RW:
To TABOR the Taxpayer Bill Of Rights, a recent federal court decision revives a lawsuit challenging TABORs Constitutionality. As you know, TABOR requires public votes on tax increases, sets limits on how much money the state can collect. The lawsuit says TABOR gives too much power to taxpayers that it essentially strips the legislature of its financial powers guaranteed under the federal constitution. That's the argument being made here. Do you agree with that argument? Does TABOR in a way violate Colorado's entry into the union?

JP:
Well, I'm not a lawyer, so they'll fight that out in the courts. I have no idea. I am a fan of the Citizen Initiative Process. Absolutely. It's brought us things like marijuana legalization. It's brought us our renewable energy portfolio standard.

RW:
TABOR was voted on by the way by the people.

JP:
It was voted on, yeah, and there're bad things that people voted on too, but I think we have a Republic. Certainly, our legislature is a law-making body, but I think it's a good thing that we have the ability to people to also put proposals on the ballot and people can have their say.

RW:
All right. Do you hope this suit is successful against TABOR?

JP:
Again, I'm not an attorney, I haven't read the lawsuit.

RW:
You don't need an attorney to have an opinion on the fate of TABOR.

JP:
Well, again, I don't know if it's specific to TABOR. I certainly don't want to hurt the ability of people to put things on the ballot and be able to pass laws. Obviously, there're changes I would like to make to TABOR, for sure.

RW:
What would be the first one?

JP:
Well, effectively one that is being proposed now and talked about on the ballot is do we simply allow excess revenue to be retained? So without raising taxes, would the state be able to utilize the revenue it collects? In some years that doesn't matter. I think the last seven or eight years, it wouldn't have meant much for the state, but this year that's a three or $400 million that could be at stake depending on what voters decide.

RW:
This is the idea of instead of issuing rebates, the state would hold on to that.

JP:
If voters approve that.

RW:
Indeed. Let's talk about the effort to recall you and at least four other lawmakers in Colorado. None of these efforts has yet reached the ballot. It's interesting, only 19 states even allow statewide recalls. Colorado's process is relatively easy. Do you think the law should be changed to make recalls more difficult?

JP:
Well, all we can do and all I do is I have to just focus on the big goals that we're trying to do as governor and not let these political sideshows distract me. And you know what? Political games will always be played. I mean, whether it's recalls or not, it's just something you have to tune out as governor and focus on delivering for people.

RW:
It doesn't sound like you feel very invested in whether the recall process is too easy or not.

JP:
It's not terribly easy. I mean, they have a pretty high threshold of signatures. I think legislators, it's a lower threshold in those districts. There could be interest in bipartisan reform of that process. I mean, I don't think it's healthy for the system that legislators feel under duress regularly if they haven't taken any unethical action. I mean, if they're just being recalled over what they said they were going to do in the first place, it seems like we risk entering a cycle of ongoing elections if those were to succeed.

RW:
You got into a battle royale on Twitter with New Mexico's governor over chile -- whose are better. You called Pueblo's the best in the world and challenged Gov. Lujan Grisham to a taste-off near the border in Trinidad. The whole thing made me think of the best home cook I know, my friend, Christopher Gomez. He lives in Denver. He moved here some time ago from Las Cruces.

Christopher Gomez:
I grew up in southern New Mexico for 18 years, but I've lived in Colorado for 21, 22 years now.

RW:
You don't have total allegiance in one direction, or the other?

CG:
Well, when it comes to green chile, I do. I actually, one year did not go home and get a batch. And so I did purchase a batch of Colorado chile, and it was the saddest winter I've spent in Colorado.

RW (to Gov. Jared Polis):
Gov. Lujan Grisham accepted your challenge?

JP:
So I think it's clear that Pueblo chile is far better than Hatch chile of New Mexico, and that's why what's kicked this off is Whole Foods premium grocery store announced that across the entire Rocky Mountain region they were going to stock Pueblo chile. That's what kicked this off. I think I just read a couple of days ago that NASA is going to take Hatch chile to space. And so I think it showed that New Mexico chile is actually fleeing the planet. We are -- I did talk to Michelle Lujan Grisham about it. I saw her, we're working on the details of a chile cook-off to prove definitively once and for all that Pueblo chile is superior.

RW:
Governor, thank you for being with us.

JP:
Thank you.

RW:
Colorado's governor, Democrat Jared Polis. We met Wednesday at the state Capitol for our regular interview.