The tax bill destroys an important part of Obamacare. The states can save it.

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States don’t have to stand by and watch the ACA implode.

To finance a massive corporate tax cut, congressional Republicans appear poised to repeal the Affordable Care Act’s individual mandate — the requirement that Americans secure health insurance or pay a penalty.

If they succeed, the human toll could be immense: The Congressional Budget Office warns that premiums will surge as healthier people opt out of the system, leaving insurers to cover a relatively sicker group of people. An estimated 13 million people could lose coverage.

But all is not lost. In fact, the mandate’s demise could cement the rest of the health care law into place. That’s because animosity toward the mandate has been the engine driving the Republicans’ years-long campaign to repeal and replace Obamacare. Without the mandate, that campaign may finally sputter out — leaving intact the ACA’s subsidies, its prohibition on discriminating against the sick, and even the Medicaid expansion.

But won’t the entire Obamacare system collapse without the mandate? Not if the states step into the breach. They’ve got the power to patch the hole that repeal of the mandate would leave in the ACA. The most ambitious states could even take steps to strengthen the law.

Massachusetts had an individual mandate well before the US did
For starters, the states can adopt their own individual mandates to replace the one that Congress repeals. There’s nothing stopping them. Before the ACA existed, Massachusetts had a mandate; it’s still on the books. And, as Vox’s Sarah Kliff reported last week, a number of states — including California, Maryland, and Washington, as well as the District of Columbia— are toying with creating their own mandates.

Adopting mandates at the state level would help stabilize insurance markets, thereby keeping premiums in check and forestalling coverage losses. It would also provide a welcome source of revenue: Some people will still prefer to pay a penalty than buy insurance. Plus, the states don’t need to stick with the precise terms of the federal mandate, which has been reviled (from different quarters) both for heavy-handedness and its ineffectuality. Stiffer state-level penalties would still be unpopular, but at least they’d work better.

States with an income tax could enforce the mandate by way of a tax, as the feds now do. But states without an income tax have options, too. Their state health departments could impose the penalty as a standard-issue fine — something like a parking ticket — and enforce the fine through liens, civil penalties, and the like. Getting a driver’s license or renewing an occupational license could be made contingent on compliance with the mandate. (Alternatively, residents could demonstrate financial hardship.)

Again, there’s no legal bar to this solution. Even if the repeal goes through, Congress has no plans to forbid states to impose their own mandates. Indeed, such a rule would give the lie to Republicans’ oft-repeated claim that the states should be laboratories for health-care experimentation. Meanwhile, the ACA itself will preempt only those state laws that pose an obstacle to achieving its objectives. State-level mandates advance the ACA’s goals, so there’s no problem there.

Those states that can’t abide a mandate could experiment with other approaches to coaxing the healthy to buy insurance. States that run their own exchanges could automatically enroll the uninsured in a standard-issue plan. People could opt out, but many will stick with the default. (That’s a classic behavioral-science “nudge.”)

Alternatively, states might explore lock-out periods for those who go without insurance — an approach congressional Republicans once flirted with. Although insurers are required to sell coverage to all comers during open enrollment, the Secretary of HHS can waive the ACA rule requiring annual open enrollment periods. A state could then establish special enrollment periods available only to people who have maintained continuous coverage.

People whose coverage had lapsed would be allowed to enroll only after a prespecified, perhaps lengthy, period, providing an incentive to avoid going bare. A lock-out period might not work as well as a straightforward mandate, and some people who accidentally or irresponsibly allow their coverage to lapse will get screwed. But it’s something.

States can also restrict the skimpy “short term” plans that Trump wants to allow

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https://www.vox.com/the-big-idea/2017/12/14/16773294/obamacare-aca-states-protect-coverage-after-tax-bill