Idaho is not ruling out the possibility of taking legal action if the Trump administration blocks its plan to allow the sale of healthcare coverage that does not abide by Obamacare’s mandates.
Dean Cameron, the state’s insurance commissioner, hopes that any issues the administration has with Idaho’s plan can instead be hashed out during ongoing conversations. He acknowledged the difficult spot he believes the administration is in and said he would not relish putting the question before the courts.
On Saturday, he had the opportunity for the first time to discuss the state’s plan on Obamacare with Health and Human Services Secretary Alex Azar and Centers for Medicare and Medicaid Services Administrator Seema Verma, alongside Idaho’s Republican governor, Butch Otter.
“I was really impressed with how thoughtful Secretary Azar and Administrator Verma were in their questions and their sincerity with understanding our dilemma,” Cameron said. “I think they wanted to make sure I understood this was a difficult position and they have to make an interpretation.”
But despite the 30-minute conversation in Washington, D.C., federal officials gave no indication as to whether the Trump administration will take action, Cameron said. He also noted that they did not provide any recommendations about changes to make or problems they spotted, but instead listened intently and asked questions.
Idaho officials believe that they have been left with few options to salvage the Obamacare-created insurance marketplaces where people buy health insurance plans because too few young, healthier enrollees have signed up.
Under Idaho’s proposal, insurers could sell policies that allow certain customers to be charged more based on a pre-existing illness such as diabetes if they did not have coverage the previous year. It also wouldn’t require coverage for children’s vision or dental care, and would require that only one plan offer maternity coverage, rather than all plans, as Obamacare stipulates. Insurers still would need to offer at least one plan that abides by all of Obamacare’s rules.
Under the state’s proposal, all of the customers would be in the same risk pool, and the state believes its plan will help lower costs and bring customers back who otherwise feel priced out and are going uninsured.
But pro-Obamacare advocates and Democrats are concerned the plans will strain the marketplace and offer inadequate consumer protections. They have urged the Trump administration to act.
Critics have warned that what Idaho has planned is not only illegal but that if it is allowed by the Trump administration then other states will seek to replicate the idea, causing Obamacare markets across the country to become unstable.
Idaho officials, conversely, believe they not only are abiding by the law, but have arrived at a solution that will ultimately help more of their residents have health insurance. The state has pointed to the Obama administration allowing states to decide whether other plans could be sold that did not meet Obamacare’s mandates as an argument to bolster their case.
Cameron said he understood the fear of other states replicating the plan, even though that was not his intention, adding, “I don’t think they properly appreciate the fear of what happens if we don’t do this, and whether we are going to end up with a market that will collapse.”
The question over whether Idaho will be able to sell health insurance plans that do not abide by Obamacare’s mandates will center on the Trump administration’s interpretation of whether the state is “substantially enforcing” the law, as is written in the Affordable Care Act, the formal name for Obamacare. While the state believes that it is, the interpretation will in part fall to Azar and Verma.
“I think it’s fair to say that the secretary expressed to me that he intends on following the law,” Cameron said. “His expression was something to the effect of, ‘I’m sworn to uphold the law. Help me to understand how these aren’t in violation of the law.'”
Officials did not ask the state to file a waiver, which is a part of Obamacare that allows limited flexibility to states contingent upon federal approval. They also did not provide a timeline as to when they would make a decision, but Cameron expects that the federal government cannot do anything until the state approves health insurance plans, a process that is supposed to happen over the course of March.
Neither HHS nor CMS would say how long the timeline would be for making a determination on Idaho’s plan or whether the administration was leaning toward taking action. It’s possible the administration will send additional questions or recommendations to state officials asking for specific revisions, which Cameron said he would welcome.
He outlined a possible scenario whereby if the administration objects then it would send Idaho a letter saying the state was not “substantially enforcing” the law and asking for a response and to correct the deficiencies.
“Hopefully they are specific and tell us exactly which provisions give them the most heartburn,” Cameron said. “We then have to make a decision: Do we make adjustments in our guidance? Are there approaches we can take, such as other legal arguments we can submit that can help him have a better understanding?”
He hoped any changes might be doable and that the state might agree, but if the state administration didn’t think it could make changes then the state would ask itself a range of other questions, including whether the issue should be decided by the judiciary.
“I’m not anxious to do that … I’m certainly not anxious to be adversarial with the administration,” he said. “I am intent on offering plans that are dramatically less expensive and that bring people back in the risk pool and make that pool healthier.”
An HHS spokeswoman acknowledged the meeting took place, along with 15 other meetings with governors who were in town for the National Governors Association annual meeting.
Officials “expressed empathy with the challenges that states such as Idaho face with Obamacare” and discussed the proposal the Trump administration has put forward to allow people to buy short-term plans. The proposal, issued last week, would undo a restriction that the Obama administration placed on the plans that limited their sale to three months rather than 12.
“HHS is committed to working with Idaho and all states to give them the flexibility, will enforce the law as needed, and looks forward to receiving comments from all states on the recently announced proposed regulation,” the spokeswoman said.
Cameron said that Idaho was invited to comment on the short-term plan during the meeting and plans to do so. He added that though he supports the proposal to extend short-term plans, he believes it is an inadequate solution to help with Idaho’s marketplace, in part because the plans are not obligated to be provided to people with pre-existing illnesses like cancer.
“We pointed out that we thought our approach was better, and that although we support him in expanding the definition, we pointed out that short-term short be used, as the name indicates, as short term, for people who are in between coverage,” he said.
