Leaders of the House Freedom Caucus have been sending out positive vibes about a newly proposed compromise Republican healthcare plan that, on the surface, would provide states the ability to opt out of some of Obamacare's most costly regulations. But in practice, the legislative text of the law would place a 10-year expiration date on this experiment with federalism.
Specifically, under the terms of the deal, states electing to do so would be able to: set their own "essential health benefits" rules; premit their states' insurers to vary premiums more for older enrollees; allow insurers to vary premiums by health status, provided that the state sets up some other mechanism to stabalize insurance markets and give access to coverage to those with pre-existing conditions. Meanwhile, all the regulations would stay on the books nationally by default.
This creates the appearance of a great federalist compromise. States that like Obamacare would be able to keep its regulatory infrastructure intact, while states that would prefer to move in another direction would be able to opt out of some of Obamacare's most costly regulations to drive down premiums and expand choices.
Furthermore, it's expected that Secretary of Health and Human Services Tom Price would interpret these requirements as loosely as possible to give states great leeway to opt out of these Obamacare regulations. But what happens in a future Democratic administration? What happens if, say, Elizabeth Warren or Cory Booker or Chelsea Clinton becomes president?
The proposed amendment specifies that intial the waivers are only good for up to 10 years, and after that period, a follow up request would be granted, "unless the Secretary, within 90 days after the date of its submission to the Secretary, either denies such request in writing or informs the State in writing with respect to any additional information which is needed in order to make a final determination with respect to the request." That appears to create a wide opening a future Democratic Secretary of HHS to either deny a waiver outright, or create a litany of new information requirements to kill the waiver.