Bills
| 3.23.22

Should the Trump Admin’s Rule That Makes it Easier for States to Obtain Obamacare Waivers be Repealed? (S. Joint Res. 52)

Do you support or oppose this bill?

What is S. Joint Res. 52?

(Updated October 12, 2020)

This resolution would repeal the Trump administration’s rule reforming state innovation waivers under section 1332 of the Affordable Care Act (ACA or Obamacare), which aims to streamline the waiver process for states so they can adopt policies to reduce health insurance premiums and stabilize the marketplace.

The Secretary of the Treasury and the Secretary of Health and Human Services submitted this rule relating to “State Relief and Empowerment Waivers” under section 1332 of the ACA as guidance on October 24, 2018. A letter of opinion from the Government Accountability Office (GAO) was dated on July 15, 2019 was printed in the Congressional record on July 17, 2019.

Congress has the authority to overturn rules within 60 legislative days with simple majority votes in both chambers along with the president’s signature under the Congressional Review Act. If this resolution were enacted, future similar rules couldn’t be enacted without Congressional approval.

Argument in favor

The Affordable Care Act’s (ACA) provision prohibiting insurance companies from discriminating against people with pre-existing conditions is an important one, as it ensures that all Americans can access health care coverage regardless of their medical history. Rolling this rule back hurts patients and destabilizes the ACA marketplaces — two bad outcomes that should be avoided.

Argument opposed

It’s simply untrue that the Trump administration’s waivers allowing states to deviate from certain ACA provisions allows plans to not cover pre-existing conditions. The waivers merely allow states to create innovative new plans and be considered in compliance with the ACA as long as their plans cover the same number of people as would have been covered without the waiver.

Impact

A CBO cost estimate is unavailable.

Cost of S. Joint Res. 52

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Mark Warner (D-VA) introduced this resolution to stop the Trump administration from pushing “junk plans” that don’t fully protect Americans with pre-existing conditions and which undermine the Affordable Care Act (ACA): 

“It’s clear that the Trump Administration is determined to limit Americans’ access to health care and undermine protections for millions of people with pre-existing conditions. The junk plans pushed forward by this Administration will inevitably disrupt our health care system, stripping basic coverage while increasing costs for Virginia families. Congress should protect coverage for vital services like prescription medicines, visits to the emergency room, and maternity care by overturning the Administration’s ill-advised plan to expand the use of junk plans. We have an opportunity here to send a message to the President that instead of attacking the Affordable Care Act, he must work with Congress on targeted, bipartisan fixes that will lower health care costs and expand access to comprehensive, affordable health care coverage.”

Senate Minority Leader Chuck Schumer (D-NY), who is an original cosponsor of this resolution, adds: 

“President Trump is proving yet again that we have to believe what he does, not what he says. That he can claim to care about protecting Americans with pre-existing conditions, while simultaneously rolling back pre-existing condition protections, reeks of the utmost hypocrisy. I challenge my Republican colleagues who claim to support pre-existing condition protections to actually do something about it, and join us in voting in favor of our resolution to get rid of this harmful rule. When Senate Democrats force a vote on this resolution, we will see if Republicans finally put their money where their mouth is.”

A coalition of 29 patient and consumer advocacy organizations including the American Heart Association (AHA), American Diabetes Association (ADA), and March of Dimes wrote a letter in support of this resolution on July 31, 2019: 

“[T]he 1332 guidance substantially erodes the guardrails of coverage that people with pre- existing conditions such as cystic fibrosis, lung disease, cancer, cardiovascular disease, diabetes, pregnancy, and psoriasis rely on in the individual marketplace. Of particular concern, the guidance would allow states to let individuals use advanced premium tax credits to purchase non-compliant short-term, limited-duration insurance plans—which could further draw younger, healthier people out of the risk pool for comprehensive insurance and drive up premiums for those who need comprehensive coverage. The guidance also eliminates protections for vulnerable populations such as individuals with low incomes and those with chronic and serious health issues by removing the requirement to safeguard those populations under any waiver. We are concerned by this as these changes fundamentally alter the nature of the Section 1332 waiver program and jeopardize adequate, affordable coverage for people with pre-existing conditions in the individual market. Halting the implementation of this guidance will protect people with pre-existing conditions from the repercussions of these market destabilizing actions. This legislation represents a significant step towards protecting patients and consumers… We support your efforts to repeal the 1332 guidance and promote stability in the individual marketplace, and urge members of Congress to cosponsor this legislation.”

FreedomWorks opposes this resolution. Its president, Adam Brandon, says: 

“State innovation waivers allow states to depart from certain provisions of the ACA provided that they still meet specific criteria. Specifically, a state must be able to explain how it will provide coverage that is at least as comprehensive and affordable as plans offered on the ACA’s individual market. A waiver also may not increase the budget deficit. Notably, states cannot use Section 1332 to waive guaranteed issue, the provision of Obamacare that purports to protect access to care for individuals with pre-existing conditions. Any Democrat who argues that the Trump administration’s revised guidance on these waivers is an attack on pre-existing condition protections, even as they are poorly done under Obamacare, is being flatly dishonest… The October 2018 guidance focuses on the coverage that is made available on the exchanges by health insurance companies rather than what consumers had purchased. States must still meet statutory requirements to be eligible for a waiver, but the guidance explains that the comprehensiveness and affordability requirement may be considered met ‘if access to coverage that is as affordable and comprehensive as coverage forecasted to have been available in the absence of the waiver is projected to be available to a comparable number of people under the waiver.’”

The Trump administration has expressed strong opposition to this resolution and threatened to veto it. In an October 28, 2019 statement of administration policy, it said: 

“This resolution would undermine the Administration’s progress in expanding affordable insurance options for American families, including those harmed by the failing insurance markets created by Obamacare. Obamacare has limited choice, forced Americans into unaffordable plans, and provided narrow networks, which prevent patients from accessing the doctors and hospitals they need. In 2019, approximately 17 percent of enrollees in the Obamacare exchanges were served by only one insurer, while another 25 percent had access to just two insurers. The percentage of Obamacare plans with narrow networks increased from 54% in 2015 to 72% in 2019, while the average Obamacare family monthly premium has increased by $742 — more than an average family’s monthly budget for groceries… By contrast, the Trump Administration’s guidance empowers States with flexibility to work around some of Obamacare’s most glaring failures and to give Americans more options to get health coverage that better meets their needs. States now have the opportunity to adopt innovative strategies for providing their residents with affordable health insurance options, including effective means of addressing the needs of people with higher than expected healthcare costs. Under this guidance, the Administration is taking steps to support States’ efforts to stabilize their markets… By invalidating the Administration’s guidance on Section 1332 waivers, S.J. Res. 52 would stymie [s]tates that are striving to provide affordable healthcare options for American families struggling to cope with rising health insurance premiums caused by Obamacare.” 

This resolution is supported by the entire Senate Democratic caucus (44 Democrats) and two Independents who caucus with Democrats, for a total of 46 Senate cosponsors. Its House version, sponsored by Rep. Annie Kuster (D-NH), has 31 Democratic House cosponsors.


Of Note: Section 1332 of the Affordable Care Act (ACA) allows states to apply for State Innovation Waivers (now also referred to as State Relief and Empowerment Waivers) to pursue innovative strategies for providing their residents with access to high quality, affordable health insurance while retaining the basic protections of the ACA. 

The Centers for Medicare & Medicaid Services (CMS) says “these waivers allow states to test innovative ways to provide access to quality health care.” Under these waivers, states must provide plans that are at least as comprehensive and affordable as would be provided absent the waiver, provides coverage to a comparable number of residents of the state as would be provided coverage absent a waiver, and not increase the federal deficit through their plans.

In 2018, the Trump administration established new guidance loosening the standards for evaluating whether 1322 waivers meet the statutory guardrails. The most important changes were:

  • Redefining “coverage” to include plans that aren’t in compliance with ACA rules, including short-term, limited duration plans and association health plans.
  • Changing the evaluation criteria of coverage comprehensiveness and affordability to be based on the nature of the coverage that’s made available to residents, rather than on the coverage that residents actually have.
  • Divorcing evaluations of the number of people covered under a waiver from the comprehensiveness and affordability standards.
  • Moving to aggregate, rather than year-by-year and population-specific, assessments of waiver effects.
  • Encouraging states to use private exchanges to offer subsidies for non-ACA compliant plans.
  • Loosening the requirement for state 1322 to be authorized through legislation.

The following 13 states have utilized section 1332 state innovation waivers: Alaska, Colorado, Delaware, Hawaii, Maine, Maryland, Minnesota, Montana, New Jersey, North Dakota, Oregon, Rhode Island, and Wisconsin. Most states have used their waiver authorities to receive federal pass-through funding to implement reinsurance programs that reimburse insurers for certain high cost claims in order to lower premiums overall. 


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / erdikocak)