States that opted not to set up exchanges have opportunity to go their own way in 2017

Nearly three dozen states opted not to operate their own health benefit exchanges serving the individual and small group markets starting in 2014. In these states, the federal government became the default exchange operator under a provision of the Patient Protection and Affordable Care Act that’s invoked if states decline to establish an exchange. Typically red states hostile to the health reform law, these states also aren’t keen on other provisions of the law such as the individual and employer mandates. An Affordable Care Act provision that takes effect next year allows them to apply to the federal government to dispense with these mandates and the individual and small business exchanges as well as other major ACA health insurance market reform elements.

Section 1332 of the law affords states broad latitude to create their own health insurance programs serving individuals and small employers for coverage beginning in 2017. Section 1332 waivers even provide states federal funding for them, paying states what they would otherwise receive in the form of advance tax credit premium assistance payments to state residents to subsidize premiums for coverage purchased through exchanges.

The freedom and the federal funding come with some important provisos. According to federal guidance issued in December 2015, states must provide coverage for a comparable number of their residents and on terms that are as comprehensive and affordable as would be the case without the waiver. Funding for the states also cannot increase the federal deficit. The waivers would be for renewable five year periods.

While health plan issuers would still be barred from medical underwriting, states could even do away with foundational insurance market reforms such as those defining small and large employer group markets and those that affect rating such as a single statewide risk pool, rating territories and limited annual enrollment periods.

For those states that defaulted to the federal government to operate their exchanges, the guidance makes clear that if they want a Section 1332 waiver to set up their own state programs, they will be making a clean break with any federal government involvement other than monitoring to ensure they comply with the major waiver provisos. They would not be permitted, for example, to continue using the federal eligibility and enrollment portal,, or to receive some modified form of advance premium tax credits in support of their programs. Nor could they mix Section 1332 funding with any federal Medicaid funding received under a state Section 1115 Medicaid waiver, according to the guidance.


Need a speaker or webinar presenter on the Affordable Care Act and the outlook for health care reform? Contact Pilot Healthcare Strategies Principal Fred Pilot by email or call 530-295-1473. 

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Frederick Pilot

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