The health insurance marketplace at a glance:
- The Affordable Care Act called for the creation of an exchange in each state, but implementation varies by state.
- States can take action to protect (or harm) their exchanges in the face of changing federal regulations
- Exchange models include the state-based exchange (SBE), federally facilitated exchange (FFE) — including the state partnership model and the marketplace plan management model — bifurcated exchanges, and supported state-based exchanges.
- Ten states were ‘early adopters,’ including, California – the first state to pass legislation authorizing an exchange.
- Among other states, there were some ‘passive resisters’ and ‘active resisters.
- For 2018, there are 12 state-based exchanges, 5 federally supported exchanges, 6 state-partnership exchanges and 28 federally facilitated exchanges.
- Some states have changed their exchange models over the years — most recently, Arkansas, Kentucky and Hawaii.
The term “health insurance exchange” (also known as a “health insurance marketplace”) has become part of the mainstream conversation about health insurance and healthcare reform over the last few years. The Affordable Care Act (ACA), enacted in March 2010, called for the creation of an exchange in each state, but the practical implementation of those exchanges varies considerably from one state to another. As a result, questions about what the exchanges are, what they offer, and how they work, are still widespread. And as with most aspects of the ACA, health insurance exchanges became yet another battleground in the political fight over the ACA.
Twenty-seven states joined a federal lawsuit in 2010/2011 trying to overturn the ACA, but in 2012 the Supreme Court upheld all but one of the challenged provisions. (The ruling in that case allowed ACA implementation to move forward, but made Medicaid expansion optional for each state, effectively creating the Medicaid coverage gap that still exists in 18 states.)
Although the Supreme Court ruled that the bulk of Obamacare was constitutional, many states continued to resist the ACA by refusing to act on health insurance exchanges. And some states simply felt that creating their own exchanges would be too costly or administratively burdensome, and opted to leave the heavy lifting to the federal government. There have also been technical issues over the last few years that have caused some states to adjust their exchange model for logistical — rather than political — reasons.
In 2018, the exchanges are functioning the same way they were in 2017, with no additional changes to any state’s exchange structure (although Nevada is planning to stop using HealthCare.gov and operate its own enrollment platform beginning in 2020). And despite a year of GOP efforts to unravel the ACA, it remains intact (the GOP tax bill, enacted in December 2017, will repeal the ACA’s individual mandate penalty starting in 2019, but the rest of the ACA remains unchanged). The ACA’s subsidies, including cost-sharing reductions, and consumer protections remain unchanged.
States’ regulatory actions and how they impact the exchanges
Although GOP lawmakers and the Trump Administration were unsuccessful in their efforts to repeal the ACA, there are ongoing threats to the stability of the individual health insurance markets. The elimination of the individual mandate penalty starting in 2019, along with the proposed expansion of short-term plans and association health plans, are likely to result in fewer healthy people obtaining coverage in the ACA-compliant market, and ever-increasing premiums.
Several states are implementing or considering various actions designed to stabilize their insurance markets, while others are taking actions that could lead to further instability in the ACA-compliant markets (with a focus on making coverage for healthy people less expensive, at the expenses of the ACA-compliant market). You can click on a state in the map above to see more details, but here’s an overview of the changes states have made or are considering:
Alaska, Oregon, and Minnesota secured federal funding (via pass-through savings from 1332 waivers) for reinsurance programs prior to 2018, and all three states avoided the sharp premium increases that applied in most states’ individual markets for 2018. Reinsurance just means that a separate entity (ie, the reinsurance program) covers a portion of the risk that the insurance companies would otherwise have to cover. Reinsurance kicks in when a claim reaches a certain dollar amount ($50,000 is a common level, but it can vary), and then the reinsurance program covers a portion of the claim until another threshold is reached (typically in the range of $250,000 to $1 million). The ACA included a federal reinsurance program, but it was temporary and expired at the end of 2016.
With reinsurance in place, premiums are lower. And lower premiums result in smaller premium subsidies. Smaller premium subsidies result in savings for the federal government, since premium subsidies are federally funded. But by using a 1332 waiver, a state can keep the savings, rather than letting the federal government keep it. The state then uses the federal savings to fund the majority of the cost of the reinsurance program (this is called “pass-through” funding).
Several other states are in the process of obtaining federal funding for reinsurance programs:
- Wisconsin (1332 waiver proposal under consideration by CMS)
- Maine (1332 waiver proposal under consideration by CMS)
- Maryland (1332 waiver proposal under consideration by CMS)
- New Jersey (1332 waiver proposal under consideration by CMS)
- Rhode Island (legislation passed, not yet signed; state funding needs to be secured and 1332 waiver submitted)
Reinsurance legislation failed in Connecticut, Hawaii, Colorado, Missouri, Washington, and Louisiana in 2018. Louisiana officials had already posted a draft 1332 waiver proposal for public comment during the legislative session, but because the legislation failed, it wasn’t submitted to CMS. In general, reinsurance legislation that failed did so because lawmakers couldn’t agree on funding for the state’s portion of the cost of the reinsurance program.
The New Hampshire Insurance Department published a draft 1332 waiver proposal in 2017 that would have requested pass-through funding for a reinsurance program, but the state never submitted the proposal to CMS. Oklahoma and Iowa both submitted reinsurance waivers to CMS in 2017, but later withdrew them when it became apparent that they wouldn’t be approved in time to affect 2018 premiums (Iowa’s waiver proposal included reinsurance, but was also much more complex).
Oklahoma enacted legislation in 2018 that allowed the state to seek a 1332 waiver for reinsurance, but the state confirmed that the 1332 waiver is not being pursued as of June 2018.
The ACA’s individual mandate penalty still applies to people who are uninsured in 2018, but it will be eliminated after the end of 2018, and people who are uninsured in 2019 and beyond will not be subject to an IRS penalty. That’s welcome news for people who would otherwise have to pay the penalty, but it’s expected to result in higher premiums in the individual market (an average of 10 percent higher, according to the CBO), which will make coverage increasingly unaffordable for people who don’t qualify for premium subsidies. So some states are considering their own individual mandates:
- Massachusetts has had an individual mandate since 2006. It will remain in effect in 2019 and beyond.
- District of Columbia (mandate has been approved by the city council, will take effect in 2019, assuming it’s signed into law by Mayor Bowser).
- New Jersey (legislation enacted; mandate will take effect in 2019).
- Vermont (legislation enacted; mandate will take effect in 2020)
Hawaii considered legislation to create an individual mandate, but it did not pass. Rhode Island’s market stability working group has recommended a state-based individual mandate, which is expected to be considered during the 2019 legislative session.
Open enrollment schedule
One of the reasons nationwide enrollment was lower in 2018 than it had been in prior years was the shorter enrollment period that was implemented in the fall of 2017. California was one of the state-run exchanges that extended open enrollment for 2018 coverage, and the state has enacted legislation that sets a three-month open enrollment period going forward as well. The District of Columbia will run a three-month open enrollment for 2019 coverage, from November 1, 2018, to January 31, 2019.
Allowing non-compliant plans to be sold
Some states are working to expand access to non-ACA-compliant health plans. The idea is that these plans will provide a cheaper alternative for healthy people who can’t afford ACA-compliant coverage. But this is short-sighted and perpetuates a vicious cycle: When healthy people can leave the ACA-compliant market and purchase sub-par insurance, the ACA-compliant market is left with a sicker risk pool, leading to more rate increases and less stability in the market.
Tennessee has allowed non-ACA-compliant Farm Bureau plans to be sold from the beginning, to the detriment of the ACA-compliant market in the state. Iowa enacted legislation in April 2018 to allow similar Farm Bureau plans to be sold in Iowa as well (they’ll be available for 2019 and beyond). Idaho issued regulations allowing non-compliant plans to be sold in 2018, but CMS stepped in to prevent Idaho’s proposal from taking effect.
States’ options for exchange structure
Initially, there were only two options from which states could pick: A state could run its own exchange (state-based exchange, or SBE) or it could opt to have the federal government run the exchange (federally-facilitate exchange, or FFE).
Then in the summer of 2011, HHS added a state partnership exchange model as a variation of the federally-run exchange. In a partnership exchange, enrollment is conducted through Healthcare.gov, and the state uses the federal call center, but the state can retain functions like outreach and education, as well as oversight of participating plans.
In early 2013, HHS also allowed for a marketplace plan management exchange, which is another variation of the federally-run exchange. States utilizing this option are generally categorized together with the states that have left the entire process to the federal government, but they retain plan management functions, which includes certification of plans that are sold in the exchange, as well as monitoring and regulatory control over the plans that are sold (similar regulatory processes were already undertaken by insurance commissioners in many states prior to the implementation of the ACA).
In June 2013, HHS also outlined provisions for a state to operate a bifurcated exchange, with the state running the small business (SHOP) exchange, and the federal government running the individual exchange. Initially, only Utah took this approach, but Mississippi started running its own SHOP exchange in May 2014, and Arkansas began running its own SHOP exchange in November 2015.
For states that want to run their own exchange but also rely on the economies of scale and technological success of Healthcare.gov, another option is a supported state-based exchange, which is considered a variation of the state-run exchange model. In a supported exchange, the state is in charge of its own exchange, but enrollment is done through the Healthcare.gov platform (the current terminology used by HHS to describe these exchanges is “state-based exchange on the federal platform,” or SBE-FP).
This option was created once it became obvious that Idaho and New Mexico – both of which had received conditional approval to run their own exchanges – wouldn’t have their own enrollment platforms ready to go by October 2013. And the SBE-FP model has subsequently been adopted by states that struggled to efficiently run their own enrollment platforms. Starting in 2017, HHS is charging a fee (initially 1.5 percent of premiums, increasing to 2 percent in 2018 and 3 percent in 2019) for SBE-FPs’ use of HealthCare.gov. Prior to 2017, state-run exchanges that used HealthCare.gov did not have to pay for the enrollment platform service.
While some states began evaluating the options nearly immediately after President Obama signed the ACA into law, others charged the federal government hadn’t provided enough information to support a decision and that none of the options gave states any meaningful control. Knowing the political leanings in a state made it fairly easy to predict how states would proceed.
How states approached the exchange decision
Early adopters – A handful of states jumped into exchange planning shortly after the ACA passed. California was the first state to pass legislation authorizing an exchange – doing so in September 2010. Colorado, Connecticut, Hawaii, Maryland, Oregon, Vermont and Washington all authorized state-run exchanges in 2011. Massachusetts and Utah were operating exchanges prior to ACA, and both began moving ahead on changes needed to comply with ACA requirements (Utah ultimately ended up with a federally-run exchange for individuals, but kept their state-run exchange for small businesses).
In general, it was blue states that moved quickly to establish state-run exchanges in time for the first open enrollment period that began in October 2013, and many of the early adopters had Democratic governors.
Pragmatists – A number of states took a pragmatic approach. Despite the uncertainty about the ACA in general and exchange requirements in particular, the pragmatists did enough work to keep their options open.
In some cases, legislatures failed to authorize exchanges, yet federal grants were accepted and spent as executive branches authorized significant planning work to proceed. Minnesota is a good example. While the Republican-controlled legislature failed to authorize an exchange in 2011 or 2012, Democratic Gov. Mark Dayton’s administration made quiet, extensive progress on an exchange.
Dayton used an executive order to appoint a task force that began working in October 2011, and Minnesota was awarded about $75 million in federal grants. In November 2012, Minnesota submitted a letter of intent and blueprint for a state-run exchange. The November elections returned both the House and the Senate to Democrats, who passed exchange legislation in March 2013, and MNsure was operational when open enrollment began in the fall of 2013 (albeit with considerable technical problems, as was the case for many exchanges).
Some states remained opposed to the ACA, but took the position that if the state must have a health insurance exchange, it would better for the state — as opposed to the federal government — to have control over it. Idaho is an example. Republican Gov. Butch Otter is on record opposing the ACA. However, shortly after the Supreme Court upheld most ACA provisions in 2012, Otter established workgroups to consider a state-run exchange and expansion of the Medicaid program. Otter announced in December 2012 that Idaho would run its own exchange, although the state used the federal enrollment platform in 2014 and didn’t launch their own enrollment platform until the second open enrollment period.
Passive resisters – A few Republican-controlled states took the approach opposite to that of Idaho: they were opposed to the ACA and did little or nothing to establish an exchange. States in this category include Pennsylvania, South Dakota and Wyoming. All three eventually opted for federally run exchanges.
Active resisters – A number of states – mostly led by Republican governors adamantly opposed to the ACA – said early and often that they would not implement state-run health insurance exchanges. Alaska, Florida, Louisiana, South Carolina and Texas are all examples.
Alaska and Louisiana have since elected Democratic Governors who have expanded Medicaid, but with HealthCare.gov running smoothly and efficiently by mid-2014, and with the significant financial costs involved, there was no longer much incentive for states to establish their own exchanges. Indeed, Medicaid expansion is a much more important aspect of state-based ACA implementation at this point, since HealthCare.gov provides the same private plan options and subsidies that enrollees would have under a state-run exchange, while states’ continued rejection of federal funding for Medicaid expansion means that 2.4 million people have no realistic access to coverage.
The active resister states turned down and returned federal grant money for exchange planning. Some have passed laws and constitutional amendments banning a state-run exchange. Oklahoma fought bitterly against the ACA in the court system, with Attorney General Scott Pruitt arguing (unsuccessfully) that the employer mandate and the ACA’s premium subsidies are both prohibited in states — like Oklahoma — that have a federally-run exchange.
States’ evolving exchange platforms, and the current tally
For 2014, 16 states and Washington D.C. opted for state-run health insurance exchanges, seven states established state-federal partnerships, and 27 states opted for the federal exchange. Although most states are still following the same model they used in 2014, there have been a few changes in the ensuing three years. See what type of exchange your state currently has.
By the start of the 2016 open enrollment period (November 1, 2016), four state-run exchanges were functioning as SBE-FPs: New Mexico (which has used the federal platform from the beginning), Nevada and Oregon (both of which made the transition for 2015), and Hawaii (switched to the federal enrollment platform for 2016). New Mexico had intended to use the supported model for 2014 only, but in early 2015, the exchange board decided that continuing to use HealthCare.gov for enrollment was in the exchange’s best interest.
Nevada and Oregon both struggled with serious technological problems in 2014, and HealthCare.gov allowed their enrollment and re-enrollment process to go much more smoothly in 2015. Hawaii maintained their own exchange enrollment platform in 2014 and 2015, but ultimately opted to become an SBE-FP due to funding problems. So for 2016, there were only 13 states that ran all aspects of their own exchanges. But Idaho – which had a supported state-based exchange model in 2014 – is among them, and has been running its own enrollment platform since the second open enrollment began in the fall of 2014.
- Arkansas became an SBE-FP, after having a partnership exchange for the individual market during the first three years of exchange enrollment.
- Kentucky became an SBE-FP, after three years of running a successful exchange that was fully state-based. Kentucky elected a new governor who took office in early 2016, and he campaigned on an anti-Obamacare platform. Since taking office, Governor Bevin has taken steps to roll back ACA implementation in the state, including the switch to using the HealthCare.gov enrollment platform.
- Hawaii now has a federally-run exchange, although the state has retained some plan management functions. For 2014 and 2015, Hawaii had a state-run exchange. For 2016, they had an SBE-FP. But for 2017, they have a fully federally-run exchange.
In 2017, there were six partnership exchanges and 28 federally-run exchanges. Among the states that have a federally-run exchange, eight have marketplace plan management exchanges: Hawaii, Kansas, Maine, Montana, Nebraska, Ohio, South Dakota, and Virginia. All of this remains unchanged as we head into 2018.
For the first half of 2015, there was significant concern about the King v. Burwell lawsuit among states with federally-run exchanges and partnership exchanges. The lawsuit hinged on the argument that the ACA only allows for subsidies to be provided by exchanges “established by the state.” Since subsidies are a cornerstone of every state’s exchange, the prospect of losing those subsidies was alarming; several states considered the possibility of building their own exchanges if subsidies were to be eliminated. But on June 25, 2015, the Supreme Court ruled 6 – 3 that subsidies are legal in every state, regardless of whether the state or federal government runs the exchange.
Arkansas, Pennsylvania and Delaware received conditional approval from HHS to create state-run exchanges in the lead-up to the King v. Burwell ruling. Pennsylvania and Delaware dropped those plans once the Supreme Court ruled that subsidies could continue to be provided via the federally-run exchange. But Arkansas moved forward with their plan to operate an SBE-FP, implementing it in time for the 2017 coverage year.
Nevada has announced plans to revert to a fully state-run exchange by 2020, and is working to secure a vendor to implement the change.
Louise Norris is an individual health insurance broker who has been writing about health insurance and health reform since 2006. She has written dozens of opinions and educational pieces about the Affordable Care Act for healthinsurance.org. Her state health exchange updates are regularly cited by media who cover health reform and by other health insurance experts.