What’s YOUR state doing to save the ACA?

Last week, California lawmakers went on a marathon voting session, presenting or passing a whopping 19 healthcare-related bills. Most of these either repair damage done to the Affordable Care Act, protect existing provisions from being ripped away, or expand on the law. A few aren’t directly related to the ACA itself but will have indirect benefits to it in the future.

California isn’t the only state doing this, though. More than a dozen states have passed at least ten or more measures to repair, protect or strengthen the ACA since it went into effect, and five states have passed at least ten or more in just the 2 ½ years since Donald Trump took office (and the GOP’s war on the ACA went into overdrive).

Stiff resistance from the start

When the Patient Protection and Affordable Care Act was signed into law in 2010, it had squeaked through Congress by the skin of its teeth. Like every other law impacting millions of people and billions of dollars, there were compromises made along the way in order to secure the votes needed to just barely get it passed.

With most legislation, those opposed to a new law usually spend a couple of years grumbling about its shortcomings. Eventually, they realize that it’s probably here to stay, so they might as well try and make the best out of it by working with the proponents to fix problems, shore up weak spots and generally make the law work better in the future.

With the ACA, that didn’t happen. For seven years, supporters of the law had to watch in frustration as flaws, shortcomings and gaps in the ACA – some of which would be easily fixable with a few slight tweaks to the wording and/or formulas – were left to fester. At the same time, supporters watched as other parts of the law – which were working properly – were undermined.

All-out war on the ACA

The situation worsened in 2017, of course, as the Trump Administration and Congressional Republicans declared all-out war on the ACA and took numerous steps to weaken, sabotage or mutate various ACA provisions. Most notably, they pursued the elimination of the individual mandate, the cut off of cost sharing reduction (CSR) reimbursement payments, the expansion of non-ACA-compliant short-term plans and the encouragement of work requirements for Medicaid expansion.

In 2019, having retaken the U.S. House for the first time since losing it in 2010, Democrats are now finally in a position to pass any number of bills to repair, protect, strengthen and expand the ACA that they want to. But to date, their legislative efforts have died in the GOP-held Senate (or would be vetoed by Trump if they somehow managed to get past Mitch McConnell). Any significant improvements to the ACA at the federal level are likely destined to go nowhere until at least 2021, while the shortcomings and sabotage continue to take their toll.

Three ways states are fighting back to save the ACA

That’s where the states come in. There’s a lot which can be done to replicate or even improve upon the ACA’s requirements at the state level – and some states have been doing just that. (It’s important to note that some states had some of the following provisions in place before the Affordable Care Act. In fact, some ACA provisions were actually inspired by state-level legislation, even beyond Massachusetts’ “RomneyCare” law.)

Generally speaking, there are three types of measures states can take to push back – and strengthen the ACA:

ACA PROTECTIONS: The easiest steps states can take involve simply codifying some of the ACA’s consumer protections at the state level – just in case the insane Texas vs. Azar lawsuit ends up tearing down the entire law en masse. The worst-case scenario for that likely wouldn’t happen until the end of 2020, however, making it relatively painless for states to pass “just in case” legislation. If the ACA isn’t repealed, those state laws won’t ever be triggered anyway … and none of them cost a dime in the meantime.

ACA REPAIRS: Repairs include restoring or otherwise mitigating the damage already done to the law: Repeal of the individual mandate; the cut-off of CSR reimbursements; the expansion of short-term plans; the shortening of the open enrollment period and the like.

ACA IMPROVEMENTS: These are actions which either fix problems the ACA had in the first place or take the law to the next step. This includes things like expanding financial subsidies, codifying restrictions on short-term and other non-ACA compliant policies or adding mandatory protections or services to insurance policies.

Fourteen states going all out to preserve the ACA

In all, I’ve categorized 36 different measures states can take. Every state in the country – even most GOP-held states – have at least one of these provisions, with one exception: Mississippi, which scores zero to date.

Here are the 14 states that have either locked in – or made progress toward – at least ten provisions that will help preserve the ACA’s impact.

I’ve linked to a reliable source for every item below; many are via The Commonwealth Fund.

View my spreadsheet detailing the measures state by state. (I’ll update it as states make progress on implementation of their individual measures.

California – 12 provisions enacted, 5 in progress, 8 extras

California is clearly setting the pace for ACA preservation. As noted above, the state’s lawmakers just recently passed 19 bills that repair damage done to the Affordable Care Act.

The state has already …

• Fully expanded Medicaid under the ACA
• Established their own full state-based ACA exchange
• Fully banned short-term, limited-duration plans (STLDs)
• Fully implemented “Silver switching” to mitigate CSR payment cut-off
• Banned non-ACA compliant “transitional” policies
• Codified community rating (limits pricing variables to age and location)
• Extended their open enrollment period (OEP) to three months
• Eliminated the 50% smoker surcharge (which has backfired anyway)
• Cracked down on abuse of association health plans (AHPs)
• Codified the ACA’s 80/85% medical loss ratio (MLR) for carrier revenue
• Codified a $250/month cap on co-pays for prescription drugs
• Mandated that all ACA exchange plans conform to simplified standards

In addition, California is in the process of …

• Establishing their own individual mandate penalty
• Cracking down on “surprise medical billing” aka “balance billing”
• Increasing tax credits for those earning more than 400% of the Federal Poverty Line
• Expanding tax credits to those earning more than 400% FPL
• Expanding Medicaid to another ~150,000 undocumented immigrants

… and is considering these 8 ‘bonus’ measures as well …

• Ending the state’s Medicaid “senior penalty”
• Making it easier for WIC enrollees to enroll in Medicaid
• Requiring insurers to inform and direct cancelled enrollees toward the state exchange
• Requiring legislative approval to apply for ACA 1332 waivers
• Mitigating the “assets test” for seniors on Medicaid
• Requiring a Medicaid MCO rating system and more transparency about insurance carrier cost-disparity reduction efforts
• Making it illegal for brand-name drugmakers to bribe generic drugmakers into delaying the release of their generics
• Requiring large-group plans to cover prescription drugs

New Jersey – 9 provisions in place, 9 in progress

New Jersey has already …

• Fully expanded Medicaid under the ACA
• Fully banned short-term, limited-duration plans (STLDs)
• Implemented “Silver loading” to mitigate CSR payment cut-off
• Eliminated the 50% smoker surcharge
• Established their own individual mandate penalty
• Instituted a reinsurance program via ACA 1332 waiver
• Cracked down on “surprise medical billing” aka “balance billing”
• Implemented a single statewide rating area
• Cracked down on abuse of association health plans (AHPs)

… and is in the process of …

• Establishing their own full state-based exchange
• Codifying community rating
• Codifying a provision that allows young adults stay on their parents’ plan until age 26
• Extending their open enrollment period to three months
• Codifying the ACA’s 10 Essential Health Benefits
• Codifying guaranteed issue
• Codifying the ACA’s maximum 3:1 age band for premium rates
• Implementing the ACA’s 80/85% medical loss ratio (MLR)
• Codifying the ACA’s no-cost preventative services

Massachusetts – 17 provisions enacted

Massachusetts has already …

• Fully expanded Medicaid under the ACA
• Established their own full state-based ACA exchange
• Fully banned short-term, limited duration plans (STLDs)
• Implemented “Silver loading” to mitigate CSR payment cut-off
• Banned non-ACA compliant “transitional” plans
• Codified community rating
• Codified a provision that allows young adults stay on their parents’ plan until age 26
• Extended their open enrollment period to three months
• Codified ACA’s 10 Essential Health Benefits
• Codified guaranteed issue
• Eliminated the 50% smoker surcharge
• Established their own individual mandate penalty
• Mandated that carriers with more than 5,000 enrollees must participate in the exchange
• Codified a 2:1 age band for premium rates
• Implemented additional tax credits for those earning less than 300% of the federal poverty level (FPL)
• Merged their individual and small-group market risk pools
• Mandated that all ACA exchange policies conform to simplified standards

Rhode Island – 7 provisions enacted, 10 in progress

Rhode Island has already…

• Fully expanded Medicaid under the ACA
• Established their own full state-based ACA exchange
• Fully implemented “Silver switching” to mitigate CSR payment cut-off
• Banned non-ACA-compliant “transitional” policies
• Extended their annual open enrollment period (OEP)
• Eliminated the 50% smoker surcharge
• Implemented a single, statewide rating area

… and is in the process of …

• Codifying community rating
• Codifying a provision that allows young adults to stay on their parents’ plan until age 26
• Codifying ACA’s 10 Essential Health Benefits
• Codifying guaranteed issue
• Establishing their own individual mandate penalty
• Seeking out a reinsurance program via an ACA 1332 waiver
• Codifying the ACA’s maximum 3:1 age band for premium rates
• Eliminating annual or lifetime coverage claims limits
• Codifying the ACA’s 80/85% medical loss ratio (MLR)
• Codifying no-cost preventative services

Connecticut – 12 provisions enacted, 4 in the works

Connecticut has already …

• Fully expanded Medicaid under the ACA
• Established their own full state-based ACA exchange
• Restricted short-term, limited-duration plans (STLDs)
• Fully implemented “Silver switching” to mitigate CSR payment cut-off
• Banned non-ACA-compliant “transitional” policies
• Codified community rating
• Codified a provision that allows young adults stay on their parents’ plan until age 26 (if they’re unmarried)
• Extended their open enrollment period (last year, anyway)
• Codified ACA’s 10 Essential Health Benefits
• Codified guaranteed issue
• Replicated the ACA’s 50% maximum smoker surcharge
• Codified the ACA’s no-cost preventative services

… and is in the process of …

• Implementing a reinsurance program via an ACA 1332 waiver
• Petitioning the federal government to be able to import prescription drugs from Canada
• Further expanding Medicaid eligibility back up to 160% FPL
• Petitioning to be able to import prescription drugs from Canada
• Empowering the state to monitor healthcare spending and establish an annual cost growth benchmark

New York – 16 provisions enacted

New York has already …

• Fully expanded Medicaid
• Established their own full state-based ACA exchange
• Restricted short-term, limited-duration plans (STLDs)
• Implemented “Silver Switching” to mitigate CSR payment cut-off
• Banned non-ACA-compliant “transitional” policies
• Codified community rating (limits pricing variables to age & location)
• Codified a provision that allows young adults stay on their parents’ plan until age 29 (if unmarried)
• Extended their open enrollment period to three months
• Codified the ACA’s 10 Essential Health Benefits
• Codified guaranteed issue (policies must be offered to anyone)
• Eliminated the 50% smoker surcharge
• Tied state MCO contracts to participation in the exchange
• Codified a 1:1 age band for premium rates
• Eliminated annual or lifetime coverage claims limits
• Implemented the ACA’s Basic Health Plan program
• Codified a minimum 60% actuarial value (AV) for health policies

Washington State – 18 provisions enacted

Washington State has already …

• Fully expanded Medicaid under the ACA
• Established their own full state-based ACA exchange
• Restricted short-term limited-duration plans (STLDs)
• Fully implemented “Silver switching” to mitigate CSR payment cut-off
• Banned non-ACA compliant “transitional” plans
• Extended the open enrollment period
• Codified community rating
• Codified a provision that allows young adults stay on their parents’ plan until age 25
• Codified ACA’s 10 Essential Health Benefits
• Codified guaranteed issue
• Tied state school employee coverage contracts to participation in the state’s exchange
• Cracked down on “surprise medical bills”
• Eliminated annual or lifetime coverage claim limits
• Implemented a public option (privately administered)
• Expanded eligibility for tax credits to those earning 400-500% FPL
• Codified a minimum 60% actuarial value (AV) to health policies
• Codified maximum out-of-pocket expenses
• Prohibited rescissions without a reasonable cause

Colorado – 13 provisions enacted, 3 in the works

Colorado has already …

• Fully expanded Medicaid under the ACA
• Established their own full state-based ACA exchange
• Restricted short-term limited-duration plans (STLDs)
• Fully implemented “Silver switching” to mitigate CSR payment cut-off
• Banned non-ACA compliant “transitional” policies
• Codified community rating
• Codified a provision that allows young adults stay on their parents’ plan until age 25 (if unmarried)
• Extended their open enrollment period
• Codified ACA’s 10 Essential Health Benefits
• Codified guaranteed issue
• Restricted the smoker surcharge to 15%
• Petitioned the federal government to be able to import prescription drugs from Canada
• Placed a $100/month cap on co-pays for insulin

… and is in the process of …

• Implementing a reinsurance program via an ACA 1332 waiver
• Cracking down on “surprise medical bills”
• Implementing a public option

Vermont – 14 provisions enacted

Vermont has already …

• Fully expanded Medicaid under the ACA
• Established their own full ACA exchange
• Restricted short-term, limited-duration plans (STLDs)
• Fully implemented “Silver switching” to mitigate CSR payment cut-off
• Banned non-ACA-compliant “transitional” plans
• Codified community rating
• Codified guaranteed issue
• Eliminated the 50% smoker surcharge
• Codified a 1:1 age band for premium rates
• Implemented a single, statewide rating area
• Increased tax credits for those earning less than 300% FPL
• Merged the state’s individual and small-group risk pools
• Petitioned the federal government to be able to import prescription drugs from Canada

… and is in the process of …

• Establishing their own individual mandate penalty (details fuzzy)

New Mexico – 10 provisions enacted, 2 in progress

New Mexico has already …

• Fully expanded Medicaid under the ACA
• Restricted short-term limited-duration plans (STLDs)
• Fully implemented “Silver switching”
• Banned non-ACA compliant “transitional” plans
• Codified community rating
• Codified a provision that allows young adults stay on their parents’ plan until age 25 (if unmarried)
• Codified ACA’s 10 Essential Health Benefits
• Codified guaranteed issue
• Cracked down on “surprise medical bills”
• Eliminated annual or lifetime coverage claims limits

… and is in the process of …

• Establishing their own full ACA exchange
• Implementing a Medicaid buy-in program

Washington, DC – 11 provisions enacted

The District of Columbia has already …

• Fully expanded Medicaid under the ACA
• Established their own full state-based ACA exchange
• Restricted short-term, limited duration” plans (STLDs)
• Banned non-ACA compliant “transitional” policies
• Extended their open enrollment period to three months
• Eliminated the 50% smoker surcharge
• Established their own individual mandate penalty
• Implemented a single rating area districtwide
• Merged their individual and small-group market risk pools
• Mandated that all individual and small-group policies be sold on-exchange only

Maryland – 11 provisions enacted

Maryland has already …

• Fully expanded Medicaid
• Established their own full state-based ACA exchange
• Restricted short-term, limited duration plans (STLDs)
• Fully implemented “Silver Switching” to mitigate CSR payment cut-off
• Banned non-ACA compliant “transitional” policies
• Codified a provision that allowed young adults to stay on their parents’ plan until age 24 (if unmarried)
• Implemented a reinsurance program via an ACA 1332 waiver
• Mandated that carriers with more than $10 million in annual revenue must participate in the exchange
• Cracked down on abuse of Association Health Plans (AHPs)
• Integrated an “Easy Enrollment” program into their state tax-filing process
• Established a statewide “all-payer” rate-setting requirement

Minnesota – 11 provisions enacted

Minnesota has already …

• Fully expanded Medicaid under the ACA
• Established their own full state-based ACA exchange
• Restricted short-term, limited-duration plans (STLDs)
• Fully implemented “Silver Switching” to mitigate CSR payment cut-off
• Banned non-ACA compliant “transitional” policies
• Codified community rating
• Codified a provision that allowed young adults to stay on their parents’ plan until age 25 (if unmarried)
• Extended their open enrollment period
• Codified the ACA’s 10 Essential Health Benefits
• Implemented a reinsurance program via an ACA 1332 waiver
• Implemented the ACA’s Basic Health Plan program

Nevada – 10 provisions enacted, 1 in the works

Nevada has already …

• Fully expanded Medicaid under the ACA
• Restricted short-term, limited-duration plans (STLDs)
• Fully implemented “Silver switching” to mitigate CSR payment
• Banned non-ACA compliant “transitional” plans
• Codified community rating
• Codified a provision that allows young adults stay on their parents’ plan until age 24 (if unmarried and a student)
• Codified the ACA’s 10 Essential Health Benefits
• Codified guaranteed issue
• Provides higher MCO contract bidding scores for carriers who participate in the state exchange

… and is in the process of

• Establishing their own full state-based ACA exchange (starting this fall).

And the rest of the states?

Every other state (except Mississippi) has implemented at least one or two of these provisions. You can view the entire table here. Keep in mind that this may be incomplete: I have missed a few items in some states, but there’s also new legislation being introduced, moved through the process all the time.

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Charles Gaba is the founder of https://acasignups.net/, which has been live-tracking Obamacare enrollments since the exchanges launched in October 2013. His work has been cited by major publications from the Washington Post and Forbes to the New York Times as being the most reliable source available for up-to-date, accurate ACA enrollment data in the country.