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Some historical perspective on association health plans and the perils associated with them.
States have already tried Trump’s health care order. It went badly.
Given the rules in place now, the entire purpose of the EO does indeed seem to be to repeat the mistakes of the past by creating different sets of rules for different plans:
States have already tried Trump’s health care order. It went badly.
A version of these self-insured association health plans first became widespread in the 1980s, but they failed in droves because many were undercapitalized. More troubling, these earlier association plans had a history of becoming what the Labor Department termed “scam artists” and the Government Accountability Office reported were “bogus entities [that] have exploited employers and individuals seeking affordable coverage.” More than two dozen states reported in 1992 that these early association plans had committed “fraud, embezzlement or other criminal law” violations.
Because less-regulated association health plans compete with fully regulated markets, actuaries and regulators have long warned that association plans create an uneven playing field that can disrupt markets. People who don’t need to cover preexisting conditions or don’t want to pay community rates gravitate to the better deals offered by associations, leaving sicker people in the regulated markets. Naturally, regulated insurance prices increase as a result, sometimes causing a death spiral that crashes the market.
That’s just what happened in Kentucky in the 1990s when it reformed its individual market but exempted association plans from the reforms. Enrollment with associations shot up, and most insurers selling in the regulated market pulled out. Within two years, the state repealed its reforms. Association health plans were only one part of Kentucky’s failed market reforms, but they are still a major reason why the so-called Kentucky disaster now serves as a lesson for other states to avoid similar measures.
We could avoid such market disruption by making association health plans abide by the same regulations that govern individuals and small groups, but the whole point of Trump’s executive order is to sidestep existing regulations. The only other option for avoiding market disruption is to keep association plans separate from the regular market by ensuring that people cannot simply choose between association plans and regulated insurance based solely on their health status.
Given the rules in place now, the entire purpose of the EO does indeed seem to be to repeat the mistakes of the past by creating different sets of rules for different plans:
The Affordable Care Act did not outlaw association health plans. It took several steps to limit their abuses, however. First, it imposed reporting requirements on MEWAs, imposed criminal penalties on MEWA fraud, and authorized the Department of Labor to take immediate action to deal with fraudulent MEWAs. It also dropped from the “guaranteed availability” provision of the PHSA an exception that had existed for bona fide association plans. An insurer that offers coverage through an association must offer the same plan to non-members who want it, if they can find out about it. Associations themselves are not subject to guaranteed availability requirements and will likely be able to find ways to winnow healthy from unhealthy applicants.
But most importantly, the ACA nowhere recognizes associations as having special status. Distinctions under prior law for “bona fide” associations, more or less disappear. The ACA simply defines large group, small group, and individual plans, without reference to how they are offered. Association plans continue under the ACA, but under regulations and guidance, associations that offer coverage to individuals are subject to the individual market rules and associations that offer coverage to small groups are subject to the small group coverage rules. These include the essential health benefit requirements and rules intended to prohibit cherry picking.