As instructed by Governor Butch Otter’s recent executive order, the Idaho department of insurance (DOI) has published rules for new, “state-based” health plans that are exempt from many of the Affordable Care Act (ACA) protections for people with pre-existing conditions. The state’s goal appears to be to provide a cheaper alternative to Idahoans than ACA-compliant plans. They do so primarily by allowing state-based plans to offer skimpier benefit packages, limit annual benefits, and charge higher premiums to older, sicker individuals. Unfortunately, the state’s action is likely illegal. If these plans are marketed and sold, they are likely to result in higher premiums for ACA-compliant plans and expose consumers who enroll in state-based plans to greater financial risk.

What are Idaho’s new “state-based” health plans?

Idaho’s DOI has, through agency guidance, invited individual market insurers to develop and market new, “state-based” health plans (SBPs). To sell these plans, insurers would have to:

• Sell ACA-compliant plans on the Idaho health insurance marketplace (exchange). Idaho is one of just 17 states that run their own exchange;
• Include SBPs and exchange plans together in a single risk pool for rating purposes;
• Submit the new SBPs to the DOI for review, and
• Inform consumers that the plan is not compliant with federal health insurance requirements.

SBPs would be exempt from many ACA rules and standards, including essential health benefit (EHB) standards, restrictions on health status, age, and gender rating, and requirements to cover care for pre-existing conditions. While the DOI guidance lays out some coverage requirements, insurers have significant flexibility to decide what to cover. For example, while SBPs must cover prescription drugs, unlike exchange plans there is no requirement that they cover insulin, HIV/AIDS treatments, or treatments for bipolar disorder.

Idaho’s standards for state-based health plans likely preempted by federal law

The ACA requires all insurers in the individual health insurance market to adhere to a range of consumer protections and market standards. Thus, whether insurers are marketing exchange plans or “state-based plans” in the individual health insurance market, they must comply with the ACA rules that apply to the individual market. Idaho’s guidance exempting insurers from those rules conflicts with that requirement.

As a general rule, federal law provides that states are the primary regulators of health insurance. However, state standards or rules that conflict with or prevent the application of federal law, including the ACA, are preempted under the U.S. Constitution’s supremacy clause. In practice, this means that state laws that do not meet federal minimum standards are preempted. In the case of a state that refuses to comply with or enforce federal law, the U.S. Department of Health & Human Services (HHS) is required to step in and enforce the law. And indeed, HHS has been directly enforcing federal law in Texas, Wyoming, Missouri, and Oklahoma because these states have refused to enforce the ACA. In light of Idaho’s new guidance, HHS will likely soon be asked to step in and directly enforce the ACA in that state.

How will Idaho’s state-based plans impact the market and the consumers who buy in it?

There are significant legal and financial risks for insurers who might want to sell SBPs. First, by doing so they will be in violation of federal law. This exposes them to the risk of large federal fines (as much as $365,000 in potential fines per customer every year). These insurers also face the threat of private litigation for offering an essentially illegal product.

If insurers do decide to market these plans, they pose significant risks for consumers and the stability of the individual market. Insurers could charge older, sicker consumers premiums as much as 15 times that of a young, healthy person. Insurers can design skimpy benefit packages that don’t cover critical items or services for people with chronic diseases, leaving them exposed to high out-of-pocket costs. While young, healthy consumers may find these plans attractive, older, sicker ones will gravitate to ACA-compliant plans both on and off the exchanges. This adverse selection will result in higher premiums for ACA-compliant plans, rendering coverage unaffordable for many Idahoans who don’t qualify for the ACA’s premium tax subsidies and aren’t young or healthy enough to afford the state-based plans. Further, taxpayers will need to pick up the tab for the higher federal subsidies needed to pay for the more expensive exchange plans.

Looking ahead

It’s far from clear that Idaho’s insurers are interested in offering these products, although one of the state’s Blue Cross Blue Shield companies has expressed some interest, with the CEO saying “…we believe the [DOI’s] direction will provide uninsured middle class families in Idaho with choices in health insurance at a price that fits their budget and meets their needs.” At the same time, it’s also far from clear whether the Trump administration will step in and enforce the law, given its longstanding opposition to the ACA. This could make insurers breathe a little easier about entering this market. It could also lead other states to follow in Idaho’s footsteps, further crippling the availability of affordable, adequate insurance coverage promised under the ACA.