In the wake of the failure of the legislative effort to repeal and replace the Affordable Care Act (ACA), the fate of another of the president’s health care priorities is unclear. In his first congressional address, President Trump articulated five principles for health care reform. His fifth and last called for giving “Americans the freedom to purchase health insurance across state lines,” a reform that, in his words, would create “a truly competitive national marketplace that will bring cost way down and provide far better care.” This concept was not in the House reconciliation bill (the “American Health Care Act” or AHCA) to repeal and replace key provisions of the ACA, but President Trump may be able to use his regulatory authority to promote the cross-border sales of health insurance.
The president has the authority to act on his own thanks in part to the ACA. That law includes a provision encouraging “health care choice compacts,” whereby an insurer could establish itself in one state and sell health insurance to consumers in multiple other states without having to follow those states’ laws and regulations. However, under President Obama, the U.S. Department of Health and Human Services (HHS) never published regulations enabling these cross-state sales.
While the ACA provision encourages states to enter into cross-state regulatory agreements in order to facilitate interstate sales, under Trump’s campaign and several congressional proposals, the federal government would effectively override states’ authority to regulate their markets. In the absence of legislative action, there is nothing preventing HHS Secretary Tom Price from issuing the required regulations and working with states to develop standards for interstate sales. In fact, several states already allow cross-state sales.