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Does this end the individual mandate debate?


States can choose to get rid of the individual mandate.

Whether you believe the mandate to be a good and necessary element of reform or a problematic and troubling gift to the insurance industries may not really matter. Section 1302 of the bill, "the Waiver for State Innovation," makes it easy to wait and see.

The waiver was inserted by Ron Wyden and it gives states considerable flexibility to walk away from parts of the bill if they believe they can better address cost and coverage on their own. The legislative language itself is complicated, but during the Senate Finance Committee's mark-up, Wyden clarified it with the committee's counsel. "My reading of what we have in the bill now," Wyden said, "is if a state can demonstrate that they can meet the criteria -- particularly on cost containment, improving the delivery system -- they can do it without an individual mandate. And can I ask, counsel, is that a correct reading of the Waiver Amendment that I offered?"

Counsel's reply was one word: "Yes."

Reading the waiver, I could imagine some fearing it's too strongly worded. It forces the state to show that compared to current law, a similar number of people would have insurance and the federal deficit would not be adversely affected. But insofar as one of the fears in this debate is that insurers will jack up prices and make insurance less affordable and available, and insofar as one of the positions in this debate is that a fairly similar level of coverage could be achieved through subsidies and regulations, then this may be appealing.

And if the waiver is too stringent, would slightly looser language solve the problem? For instance, if we added a provision saying that a state could also secure a waiver if they could show their change would improve affordability? Rather than the debate being about the existence of the mandate, which many believe is essential to the architecture of the system, would it make sense to move it to the conditions under which the mandate is judged a failure and states can opt out?

Photo credit: By Melina Mara/The Washington Post

By Ezra Klein  |  December 18, 2009; 12:59 PM ET
Categories:  Health Reform  
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Hey, Ezra, I think the state innovation waiver is section 1332, not 1302.

Posted by: StokeyWan | December 18, 2009 1:14 PM | Report abuse

I remember thinking it was just a way to waiver-out Massachusetts...

Posted by: ThomasEN | December 18, 2009 1:18 PM | Report abuse

This is flat-out disingenuous. There is no way to cover the same number of people without a mandate, because there are millions of people who won't sign up out of laziness alone. Also the law bars the Secretary from waiving ERISA requirements, which means nothing a state wants to do can apply to big companies. The bill is a joke.

Posted by: bmull | December 18, 2009 1:20 PM | Report abuse

Gee Ezra, the Obama admin must be getting scared. They can't feed you new talking points fast enough.

Posted by: kmblue | December 18, 2009 1:23 PM | Report abuse

WOW. I thought Wyden was smarter than that. So basically any individual state can walk away from various provisions if they like. This from the smart man who put together the idea of the Free Choice Ammendment.

This is NOT going to go well.

Posted by: visionbrkr | December 18, 2009 2:06 PM | Report abuse

Wouldn't that sort of kill any national plans from being offered?

Posted by: spotatl | December 18, 2009 2:45 PM | Report abuse

ummmmm. Really?? You can't think of ANY way that a state could innovate a health care plan to cover as many people as prescribed by the federal mandate. I thought about it for like 6 seconds and it occurred to me that states could offer some sort of public plan for example. Yeah, real disingenuous of him to think that there might be room for innovative ideas that you haven't thought of.

Posted by: JH11 | December 18, 2009 3:00 PM | Report abuse


seriously? Whose funding that entitlement when states are going bankrupt?

Can states utilize Medicare's network of doctors and hospitals? There'd be a lot of questions needing to be answered before anyone would do that which is exactly why no one has done it to this point.

Posted by: visionbrkr | December 18, 2009 3:27 PM | Report abuse

JH11, that sounds reasonable on its face but the problem is that states have TRIED to expand Medicaid or create other types of in-state public plans before, and it usually hasn't worked. For example, many states tried to set up their own high risk pools but most are either shut down or closed to new enrollees at this point.

But I still think this kind of cooperative federalist approach can be really useful. There's no rule that says that mainstream wonkery has all the answers -- it's very possible that some state out there can draw the line a different way. And many states can just draw different/better compromises because of various demographic issues (e.g. younger-than-average population, super-physically active population, etc...).

And perhaps most importantly, exit valves like these are the BEST way to protect against industry capture or a regressive presidency. Under Bush the cooperative federalist structure of the Clean Air Act was about the only thing keeping climate policy moving forward. And many states have used the Medicaid waiver to do some really interesting coverage experiments. This is the kind of thing that's a big question mark now but could ripen into something distinctive that leads the whole health system forward.

Posted by: NS12345 | December 19, 2009 8:39 PM | Report abuse

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