New Jersey bill aims to block Trump admin's proposed rule for Association Health Plans

New Jersey is relatively well defended against the Trump administration efforts to fragment the individual and small group health insurance markets by allowing short-term plans to be sold for year-long terms and easing the path for association health plans (AHPs) to be deemed employers in their own right and so gain large group status.

New Jersey bans short-term plans outright, and tightly regulates association plans (the main species of  multiple employer welfare arrangements, or MEWAs, that is, plans that cover the employees of two or more unrelated employers). In Jersey, MEWAs are regulated as small group plans,even if they're self-funded. (While self-funded plans generally are subject to federal oversight under ERISA, which preempts state law, there has long been an exception enabling states to exert all but full  regulatory control over MEWAs.)

As small group plans, MEWAs in New Jersey are subject to the full suite of ACA coverage rules, including Essential Health Benefits. Small group plans are not available to self-employed individuals, or to small businesses that have no employees other than owner and spouse.. Under the Department of Labor's proposed rule for AHPs, these self-employed individuals and small business owners would be eligible to enroll in AHPs that gain large group status.

Does the proposed rule threaten New Jersey's current regulation of AHPs? That's not clear. On the one hand, "The proposed rules also would not modify the States’ authority to regulate health insurance issuers or the insurance policies they sell to AHPs" (p. 42). At the same time, Kevin Lucia, a professor in Georgetown University's Health Policy Institute, cites concern among experts "that this is potentially going to have to be litigated. If you're an association and you set up in Oklahoma, if you read these regulations, you think, well I can sell everywhere -- and yet, California tells me I can't come in?"

Bottom line for Lucia: "It's a big question whether states will be able to maintain their authority to regulate MEWAs."

That uncertainty likely drives a provision addressing MEWAs in a bill introduced in the New Jersey legislature, S-1877, that would establish a state individual mandate to replace the federal mandate effectively repealed by the Republican Congress.

Can blue states protect their health insurance markets from Trump's executive order?

Can a state that wants to preserve ACA consumer protections protect itself from the executive order Trump signed today, which opens paths to segmenting the risk pools in the individual and small group markets? Consider the case of New Jersey, which had guaranteed issue (and, with no individual mandate, sky-high premiums) pre-ACA.

The Trump EO instructs Treasury, DOL and HHS to expand availability of short-term insurance, allowing it "to cover longer periods and be renewed by the consumer."  That's understood to mean allowing coverage for up to a year -- and so, via renewal, indefinitely, though subject to medical underwriting at renewal as well as at first purchase.  Short-term plans are not subject to ACA coverage rules.

At present, plan duration is limited to three months. Since  that rule only went into effect this April, extending the term to up to a year is not a radical shift from the ACA status quo.  But combined with weak enforcement of the individual mandate, and more exemptions from the mandate stemming from rising premiums, temporary plans available continuously are likely to weaken the ACA risk pool.

Temporary plans are subject to state regulation, however, and health law scholar Nicholas Bagley expects that to continue:

13/ The states should still retain authority to regulate short-term plans -- and to require them to adhere to ACA rules.

— Nicholas Bagley (@nicholas_bagley) October 12, 2017

Pre-ACA, patchwork protections worked for the lucky

The pre-ACA individual market was not entirely devoid of protections for people with pre-existing conditions. These varied widely by state, however. Five states -- Maine, Massachusetts, New Jersey, New York, and Vermont -- had guaranteed issue and community rating, meaning that insurers could not deny coverage based on medical history or charge more to people on the basis of their medical history. In New Jersey, an insurer could bar coverage for the applicant's pre-existing condition for up to twelve months, though that period could be reduced or eliminated if the person had maintained continuous coverage prior to applying. In the other 45 states, the rules according to which insurers could ascribe a pre-existing condition to an applicant varied.

HIPAA, the Health Insurance Portability and Accountability Act of 1996, though focused mainly on rules governing employer-sponsored plans, provided some "continuous coverage" protection in the individual market, though the degree of protection varied by state. In some states, if you had maintained continuous coverage in a group health plan or via COBRA for eighteen months, any insurer selling individual coverage in the state had to offer you coverage, though HIPAA did not regulate how much the insurer could charge. Different states offered different degrees of protection, however.

Recently, a well-informed retired attorney in Atlanta, Gary Ratner, recounted to me how HIPAA, enhanced by Georgia state law, enabled him and his wife to maintain good if eventually very expensive coverage...not in the individual market per se, but as individuals without access to conventional group coverage, until they qualified for Medicare. Gary's tale makes an interesting counterfactual for older current enrollees in the individual market who wonder how they may have fared pre-ACA. Gary and his wife fared pretty well -- though if they were in the ACA-compliant individual market today, as his calculations below indicate, they would fare comparably. And they were lucky. They threaded a couple of needles.