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Regulation and Compliance > State Regulation

On the Third Hand: Meanie

By Allison Bell

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I sincerely think that, whatever is wrong with the Patient Protection and Affordable Care Act (PPACA) — and I’m certain that plenty is wrong with it — states with governors and other officials who hate PPACA still ought to do their sincere best to make the law work as well as it can work, if it’s going to be the law of the land.

If Republicans try to kill PPACA by tying it in mile after mile of red tape and get it stuck in inertia quicksand, that won’t provide any serious test of whether the ideas in PPACA work or don’t work. All of those efforts to cripple PPACA will just show what we already know: That a bill that’s implemented by officials who are, effectively, wrapped up in a bureaucratic straightjacket will probably function poorly. No kidding.

But, on the other hand: Federal regulators could show that they are genuinely interested in letting free markets (or, at least, freeish markets) work their magic by letting the more Republican-flavored ideas in PPACA work as well as they can possibly work.

One example is the Multi-State Plan Program (MSPP).

Drafters of PPACA included the MSPP provision in PPACA to see if the “association health plan” (AHP) concept could help control costs.

Advocates of the AHP concept want, basically, for all small employers (or all individuals, or some other group of prospects) to be able to sign up for a big, multi-state, self-insured health plan that’s mostly or entirely regulated under the laws of one state.

The idea is that the enrollees in the AHP could get the same freedom from onerous state benefits mandates and other burdensome state laws and regulations that big self-insured health plans now enjoy. (The Employee Retirement Income Security Act (ERISA) has freed the big self-insured plans from state benefits mandates since 1974.)

PPACA calls for each PPACA health insurance exchange, or Web-based insurance supermarket, to offer at least two multi-state plans (MSPs).

The U.S. Office of Personnel Management (OPM) points out that PPACA has tied its hands by requiring that the MSPP be governed by the state laws that govern other exchange plans.

The problem with that concept is that, if the MSPs have to obey most state health insurance rules, they don’t really seem to get much benefit from the fact that they’re multi-state plans.

Idea: Maybe OPM and other federal agencies could persuade the states that like the MSP concept — or simply want to give association plans a chance to prove to all that they are demon spawn  – to sign up for a multi-state compact that would adopt the health insurance rules of the meanest, toughest regulators in the compact as the rules for the whole compact.

An MSP that would agree to submit to the rules of that one really mean regulatory agency could just be regulated by that one plan and not have to worry about meeting the other plans’ standards.

On the one hand: Some states are pretty tough, by health insurers’ standards. But I think those tend to be the states that refuse to participate in multi-state compacts, anyway. If this is going to be a fairly standard kind of compact, maybe there’s a way this compact could be appended to the existing Interstate Insurance Product Regulation Compact (IIPRC) system.

On the other hand: If OPM and other federal agencies tried to do this and failed because the states — including the states with Republican governors — refused to cooperate, maybe that would be a chance for the Obama administration that it made a serious effort to give the PPACA version of the AHP concept a test and that they ought to have some serious conversations about the concept with the Republicans.

On the third hand: If Republican governors thought the Democrats were going to make them look like the bad guys on the AHP issue, maybe Republican governors would find a way to expedite the creation of an IIPRC MSP system.

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