The Health Care Law: A Status Issue

While much has been written about the potential impact on Puerto Rico and the rest of the country if the Supreme Court had overturned the Affordable Care Act (ACA), lost in the discussion is the fact that Puerto Rico was never guaranteed inclusion in the federal law at all.  In fact, Puerto Rico was left out of early drafts of the bill.

Had Puerto Rico been excluded from the federal law, it certainly would not have been the first time.  As recently as 2009, Puerto Rico was left out of the Health Information Technology for Economic and Clinical Health Act (HITECH Act), a law that encourages the adoption of electronic medical records.  The omission of Puerto Rico was ultimately determined to be an oversight.  Senator Robert Menendez (D-NJ) has joined forces with Puerto Rico’s Resident Commissioner, Pedro Pierluisi, to introduce legislation (S. 688/H.R. 1273) to correct this oversight.

Pierluisi must now once again spend his time fighting for inclusion in a program that came automatically to other Members of Congress.

This is the fate of a non-voting territory in the U.S. Congress.  Popular federal laws often do not automatically include Puerto Rico and the other territories.  Legislation generally applies to the states, and “state” must then be broadly defined to include non-states such as Puerto Rico.  In early versions of the ACA, U.S. citizens residing in Puerto Rico were not included in the law’s trademark Exchanges or given related consumer protections that were granted even to non-US citizens residing in states.

Even though Puerto Rico was ultimately included in the ACA, the territory was not treated equally with states.  It received far less Medicaid funding than it would have if it were a state, and even this assistance has since been targeted for complete elimination by the House of Representatives.  On May 10th, the House passed budget legislation that would wipe out hard-fought Medicaid funds provided to the territories under the ACA, inlcuding about $5.5 billion for Puerto Rico.  Related funding for the fifty states would remain untouched.  The measure is not expected to gain traction in the U.S. Senate.

United States Virgin Island Delegate Donna M. Christensen (D-USVI) attempted to restore the ACA’s increase in Medcaid funding to the territoreis when the budget bill was pending before the House Energy and Commerce Committee.  She introduced an amendment to restore the ACA funding, which was supported by the Congressional Hispanic, Black and Asian Pacific American Caucuses, more than fifty advocacy groups, and the Partnership for Medicaid – a nonpartisan nationwide colalition of safety-net providers and stakeholders, including family physicians and pediatricions.  Her proposal was nonetheless defeated.

Puerto Rico has no representation in the Senate, and the territory has only one non-voting delegate in the House.  When Congress drafts laws, this makes a difference.

 

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[…] Because Puerto Rico is not a state, it is not automatically included in federal legislation that gov….  In 198o, the Supreme Court ruled in Harris vs. Rosario that “Congress, which is empowered under the Territory Clause of the constitutiion. . . to “make all needful Rules and Regulations respecting the territory . . . belonging to the United States,” may treat Puerto Rico differently from States so long as there is a rational basis for its actions.” […]

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