Those who fail to sign up during the annual open enrollment period for the ACA then find out they have a health problem have few other options and would have to wait until the next ACA open enrollment, he noted.
Under Idaho's plan, such consumers could buy a state-based plan and "have coverage on everything else, except for the 'pre-ex' (pre-existing condition), until the next open enrollment period," Cameron said.
Q: What could happen legally?
A: At a minimum, states must follow federal law, although they generally can set more stringent standards. Some states, for example, are considering putting in place their own "individual mandate" to replace the ACA tax penalty for those who are uninsured. The tax bill Congress passed in December removes that federal penalty as of 2019.
But states cannot create rules that fall short of federal law. If the state doesn't enforce federal rules, the ACA grants the federal government authority to step in.
Idaho may be "banking on ... the Trump administration (not enforcing) the ACA," Bagley said.
This could be one of the first tests for new Health and Human Services Secretary Alex Azar.
"If HHS does not go in and enforce the federal floor ... then Idaho can do whatever it wants. Any other state can do whatever it wants," said benefits attorney Christopher Condeluci, who formerly served as the tax and benefits counsel to the Senate Finance Committee.
He noted a parallel with the immigration debate: "If a state says, 'hey ICE, we are going to resist you', then the Department of Justice is allowed to come in and say these immigration officers can do what the law says they can do."
Fallout could hit Trump, who might find himself defending a law he has adamantly opposed.
"If HHS declines to step in to enforce the law, the executive branch headed by the president is responsible for enforcing the law," Bagley said. "His job is to make sure his agencies enforce federal law."
Q: Insurers have not said if they will offer such plans. What are their liabilities?
A: The ACA set fines of $100 per day, per enrollee, for violating provisions of the law. Multiplied by thousands of enrollees across several violations, that could quickly add up. The state may allow the plans, but "it's not clear that a future administration could be prevented from looking back at past violations and imposing pretty significant penalties," said Georgetown's Corlette.
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