An Obamacare Provision Even Republicans

Can Love
Buying health insurance across state lines has been proposed as an
alternative to the Affordable Care Act but its already in the law.

By Kimberly Leonard, Staff Writer |Jan. 6, 2016, at 12:01 a.m.

Meet the unlikely champions of Obamacare: Donald Trump, Sen. Ted Cruz and Sen. Marco
Rubio.

The Republican presidential frontrunners, along with their trailing competitors, are all big
fans of allowing Americans to buy health insurance across state lines, arguing that doing so
would boost competition, resulting in lower costs and greater choice for consumers. Often,
conservatives have framed such a plan as part of a replacement package for Obamacare.

The thing is, such permission is already part of President Barack Obama's health care law.

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The littleknown provision, found in section 1333 of the roughly 1,000page Affordable
Care Act, allows for states to create "health care choice compacts" permitting insurers to
sell policies to consumers in any state participating in the compact, as long as they follow
specific rules. Five states Georgia, Kentucky, Maine, Rhode Island and Wyoming already
have enacted interstate compact statutes, according to the National Conference of State
Legislatures.

So why haven't consumers taken advantage of the provision? Probably, at least in part,
because the administration hasn't fully implemented it a lapse that could provide
additional ammunition for Republicans seeking to dismantle Obamacare.

Under the Affordable Care Act, the Department of Health and Human Services was directed
to consult with the National Association of Insurance Commissioners on regulations for the
compacts and issue them by July 2013. The regulations would clarify how such plans would
work, given that health insurance plans usually offer coverage in specific areas. Consumers
were supposed to be able to buy insurance in states other than the one in which they live
should they reside in a state that had joined a compact starting Jan. 1 of this year.
USN&WR

However, the NAIC says HHS Secretary Sylvia Burwell has not even reached out to the
group for consultation. "Under the law they were supposed to come up with regulations
and they haven't yet," an NAIC spokesman says.

Officials with the Department of Health and Human Services did not provide comment
despite multiple requests.

The idea of buying insurance across state lines is not new. Arizona Sen. John
McCain included it in his proposal for health care reform when he ran for president in
2008, and it was part of former Massachusetts Gov. Mitt Romney's plan to replace
Obamacare when he ran for president in the 2012 cycle.

So it's not surprising the idea has surfaced again during this election it's just not clear that
the candidates know it's already part of Obamacare. In an August oped in Politico, Rubio
wrote: "Americans should be able to purchase coverage across state lines so they can seek
out affordable coverage regardless of where they live." In August's Fox News Republican
debate, Trump said erasing state lines for insurance would result in "great plans."

GOP members of Congress also have repeatedly introduced the Health Care Choice Act,
which would permit the sale of insurance across state lines. A recent draft in the Senate
was introduced by Cruz and billed as an Obamacare alternative. In addition, a Rasmussen
poll released in February 2014 found that 77 percent of Americans support being able to
purchase health insurance across state lines.

Encouraging the sale of insurance across state lines would make more sense if Republicans
were first able to repeal the Affordable Care Act and remove its baseline provisions, says
Sabrina Corlette, a senior research professor at Georgetown University's Center on Health
Insurance Reforms. Under the law, health insurance plans must abide by federal standards
that include providing 10 essential health benefits ranging from mental health coverage to
maternity services and dental care for children.

"It sounds really great in concept clear out regulatory barriers and let insurance
companies market plans that can be more affordable," Corlette says. "But it's much more
difficult to actually do this."

But while Republican proposals are similar to what is permitted by the Affordable Care Act,
their versions as targeted attacks on the existing law likely would not be subject to the
same regulatory requirements already in place under its umbrella, nor those the
Department of Health and Human Services is supposed to finalize.
Democrats, meanwhile, are concerned that selling insurance across state lines would drive
healthier customers to states where coverage is less expensive, leaving other states with
fewer healthy customers to balance the costs incurred by those who are sick.

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Though health care choice compacts are technically written into Obamacare, "it is not a
provision of the law that has much of a constituency," Corlette says. "The administration
has never been enamored with it. Some of the drafters [of the Affordable Care Act] thought
they needed to include it."

If a Republican were to win the White House, she adds, then he or she could direct the
Department of Health and Human Services to finish the regulations.

Congress also likely could not sue the administration for failing to issue regulations for the
compacts, says Tim Jost, a professor at the Washington and Lee University School of Law.
That tactic to attack the health care law was pursued previously by House lawmakers who
attempted to sue the administration for moving the deadline back for Obamacare's
employer mandate, which requires large companies to offer health coverage to employees
who work 30 hours or more.

A federal judge dismissed the House's challenge last year, and Jost predicts the same
outcome if Congress were to try to sue the administration for not issuing compact
regulations.

However, Republicans still could seek to capitalize on the HHS lapse by, for example,
holding an oversight hearing and trying to make it a political issue, Jost says.

"They would run into considerable pushback from state regulators, however, who are not
enamored with the idea of having insurers selling coverage in their state not fully subject to
their oversight," he says.

Tags: public health, Affordable Care Act, health care reform, health insurance

Kimberly Leonard is a former health care reporter for the News division at U.S. News.
Previously she worked in Health Rankings as a multimedia producer and rep... full bio