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Freedom Blue: Idaho’s Challenge to the ACA Gets Serious

By: Brady Bizarro, Esq.

You may recall that, in our January webinar, we mentioned some of the efforts to roll back the Affordable Care Act (“ACA”) at the federal and state levels. Some states were considering proposing (and some actually did propose) their own individual health insurance mandate. Others, like Massachusetts, were considering applying for waivers to their Medicaid programs to permit them to reduce the number of benefits covered in an effort to save money. None of these actions have been as bold as what it taking place in the state of Idaho.

In early January, Governor Butch Otter signed an executive order that would let health insurers in his state sell new plans to market that do not comply with ACA rules. The order would permit the creation of a separate health insurance marketplace where pre-ACA rules would govern. Specifically, the Department of Insurance (“DOI”) announced that insurers would be able to:

  • Carve out benefits, such as maternity care;
  • Restore co-pays for preventive care, such as colonoscopies;
  • Limit annual claims to $1 million before moving high-cost patients onto the state’s exchange;
  • Deny coverage for pre-existing conditions (though somewhat limited); and
  • Charge individuals more because of a history or high risk of expensive medical conditions.

Despite many protestations from both sides of the political aisle, including analysis by legal experts that this move is likely unconstitutional, the Trump administration has remained silent on these developments so far. On February 14th, the state’s largest insurer, Blue Cross of Idaho, announced that it will sell five “state-based” plans according to the guidance issued by the DOI. These plans, known as “Freedom Blue,” will be much cheaper than ACA plans, as much as 30 to 50 percent less.

What is important to note here is that Idaho is responding (albeit in its own way) to a recognized, serious problem with the current state of the ACA: many lower to middle class residents who earn too much money to qualify for ACA subsidies are dropping out of the market because they cannot afford their premiums. In Idaho, approximately 110,000 have done just that. Combined with the effective repeal of the individual mandate, this spells potential disaster for state exchanges because those healthy individuals who pay full price are leaving sicker individuals reliant on subsidies in the risk pool. This is not a sustainable situation, and Idaho’s bold reaction is an attempt to lower prices to keep its risk pool healthy. It is unclear how the new Secretary of Health and Human Services, Alex Azar, will respond, but finding ways to stabilize risk pools will be extremely important in 2018, or else we should expect more states to flaunt federal rules and test the administration.




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