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
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