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As states reach the midway point of their 2018 legislative sessions, many are looking for ways to stabilize their insurance marketplaces now that Congress has effectively eliminated the individual mandate that required all residents to be insured or pay a penalty. Without guaranteed participation by healthier consumers, marketplaces risk having more high-cost consumers in their pools, which will drive up premiums and destabilize markets.

Several states are considering implementing a state-based mandate, with bills proposed in Hawaii, Maryland, New Jersey, Vermont, and Washington. Connecticut recently released a study about the effect of a mandate and a Washington, DC, working group has adopted a recommendation to implement a mandate. Policymakers are looking carefully at how Massachusetts, which has the lowest uninsured rate in the country, implemented its mandate 11 years ago.
Key Lessons Learned from Massachusetts
Earlier this month, the National Academy for State Health Policy (NASHP) hosted a webinar to explore implementation of a state-based mandate. During the event, Massachusetts officials described their mandate and identified three key elements that state policymakers should consider. (View Massachusetts’ webinar slides here.)

• Coverage standards: What is the minimum standard of coverage that individuals must purchase in order to be considered insured and avoid a penalty?
• Affordability standards: Are there limits that should be put in place to exempt consumers from having to purchase coverage that is unaffordable?
• Penalties/exemptions: What should the penalty be for individuals who do not purchase coverage? What exemptions should be offered to avoid the penalty? How should penalty revenue be used?

State officials also discussed operational considerations when crafting a mandate, including:

• Cost and governance: What agencies should have authority over monitoring and enforcement, and at what cost?
• Outreach and education: What educational and outreach efforts are required to ensure that consumers are adequately informed about the mandate? When and how should educational efforts occur?

Massachusetts officials described the mandate as an “integral” part of their overall coverage strategy. They explained that the mandate has provided many indirect benefits to their state. Notably, the detailed information the program has provided about consumers who lack coverage has enabled the state to design effective policies and fine-tune outreach strategies to reach these consumers and enroll them in affordable programs.
Officials also described the benefits of instituting a common benefit “floor” for coverage, which has helped Massachusetts:

• Provide a quality standard of coverage that benefits all consumers; and
• Insulate the state’s insurance market from detrimental fragmentation, and consumer gaming that can be exacerbated by the existence of limited coverage options.

Such system gaming may be of particular concern pending recently proposed federal actions to grant greater flexibility over short-term and association health plans.
Massachusetts officials acknowledged the difficulty of measuring the direct impact of the mandate on reducing the number of uninsured. The state’s mandate evolved over time and did not occur in isolation. It was part of a package of reforms designed to improve affordability and access in Massachusetts. Collectively, these policy decisions have resulted in Massachusetts achieving the lowest uninsured rate in the country (currently at 2.5 percent). Recent data released by Massachusetts’ Health Policy Commission show that Massachusetts has the second-lowest average premium costs for benchmark plans sold through its exchange, a clear sign of market stability.
Ultimately, any state considering a mandate must decide how to balance each of these considerations based on its intent to:

• Improve affordability and stability;
• Establish a quality standard for required coverage; and
• Ensure the program is not overly burdensome on consumers or state systems.

Maryland’s Proposed Health Insurance Escrow Fund
Democratic state legislators in Maryland have sponsored legislation (SB 1011/HB 1167) that would use Maryland’s health insurance exchange to automatically enroll individuals in health insurance plans. The proposal is based on a concept developed by Stan Dorn, a senior fellow at Families USA, under which Maryland would institute an individual mandate and imposepenalties for lack of coverage. Under this model, consumers could use the penalties they owe to purchase future coverage. As described by Dorn, the intent of this proposal is to ensure that penalties are used to help individuals purchase coverage to the maximum extent possible. During NASHP’s webinar, Dorn outlined four phases of this plan:

• Open enrollment “pre-payment:” During the open enrollment season, consumers would come into the exchange and estimate the amount of penalty they would owe during their next tax filing for not purchasing coverage. The consumer can then opt to “pre-pay” this penalty to the exchange, and apply that payment toward the purchase of insurance coverage.
• Tax season: Upon filing tax returns, consumers would be asked to self-identify whether or not they were insured on their tax form. If they were uninsured and owed a penalty, consumers could choose to have the penalty used to purchase insurance. At this point, the exchange would check to see if the consumer was eligible for coverage at zero-cost, meaning that when tax credits and the penalty are applied, the consumer would owe zero in monthly premiums for the plan. If a zero-cost plan is available, the consumer would be automatically enrolled in that plan.
• Post-tax season: If consumers do not qualify for a zero-cost plan, their penalty would be held in escrow until the next open enrollment period. At that point, consumers can apply the penalty toward the purchase of coverage for the following year.
• Continuation of coverage: If consumers decide to drop coverage before the full year, the state keeps any amount of the penalty left after payments are made to insurers for whatever months the consumer was covered. Any penalty funds collected would be used to finance operation of this program, and to help fund a reinsurance program to help defray the cost of insuring high-cost consumers.

The Maryland proposal raises questions about consumer behaviors, underscoring that successful implementation requires the development of sufficient tools and resources to ensure that consumers can adequately make decisions about whether to use of their penalty toward the purchase of coverage. The legislation proposes an ambitious timeline for implementation, mandating that it become fully operational by Jan. 1, 2020. The Maryland exchange have not officially taken a position on the model, though legislators are consulting with them to assess the feasibility of the plan.