Maybe not, argues University of Michigan law professor and all-around ACA legal expert Nicholas Bagley.
What's happening: The Health and Human Services Department proposed new rules last week for the 2019 enrollment period, including changes to the ACA's requirement that insurance plans sold through the exchanges cover a set of "essential" benefits.
- The ACA spells out the 10 benefits plans have to cover, but HHS lets states fill in many of the details by pegging their benefit requirements to an existing insurance plan.
- The new rules would give states three new ways to set their benefits, largely by borrowing other states' standards — either as a whole, or for one benefit or another.
The issue: As an ostensible check against defining down these benefits too far, HHS said it would require the new standards to match a "typical" employer plan. But it's defining "typical" simply as any plan that covers at least 5,000 people — even if that one large plan is, in fact, not at all typical of what employers in a state offer.
- "In other words, HHS wants to define a 'typical employer plan' to include atypical plans — which the agency emphatically cannot do," Bagley writes in the Incidental Economist blog. "If HHS presses ahead with the rule, it could face tough sledding in the courts."