Implementation of the Affordable Care Act in Maryland

Lobbying, government relations, public advocacy.  These terms all describe the same thing:  the effort to have government act in a way that avoids harm or provides a benefit to someone. Public officials are awash in a sea of information.  Like any person, a legislator or regulator must filter that information, decide what is relevant to a particular issue, and place it in the context of other information before acting.

The source of information is important.  It must be credible, trustworthy and reliable.  The information itself must be accurate.  Relevant information, properly presented, can be pivotal in determining the ultimate position of the public official on an issue.  For a legislator, it can be the reason for supporting, opposing or seeking to amend a bill.  For a non-elected official, it can be the difference between adopting a particular regulation, or not, or enforcing a statute in a particular way, or not.

At Bryson F. Popham P.A., we understand these dynamics.  We help our clients influence the decision-making process by public officials in order to achieve the desired results.  Together with our clients, we analyze a set of facts, identify issues, agree upon an action plan, and help execute the plan.   The subject of health care reform offers a useful example of how we work

Maryland State Government is activist by nature, and that is most evident in the area of health policymaking.  From the establishment of the Health Services Cost Review Commission in the 1970s to set rates for acute care hospitals, to the creation of the Health Care Access and Cost Commission in 1994 (now the Maryland Health Care Commission) to develop public health policy in the State, to the issuance of a Governor’s Executive Order to implement the federal Patient Protection and Affordable Care Act (the “ACA”) on the day following the signing of that Act into law by the President, Maryland has always in been the vanguard of states experimenting with new health policies.

Our clients include a cross-section of insurers, agents, brokers, third-party administrators and others whose businesses are significantly affected by these policies.  We successfully opposed the creation of health insurance exchanges in the State prior to the enactment of the ACA; since then, we have sought to guide State officials implementing the ACA in ways that limit its impact on our insurance clients.

The health distribution network was a principal target of the ACA.  Agents, brokers, third-party administrators and others involved in designing and procuring health insurance plans for businesses were at risk.  The ACA authorized and funded state-run health insurance exchanges, affording states wide latitude in structuring and operating their exchanges.   States could, for example, sell products other than health insurance on the exchanges, require all health insurance sold in a state to be funneled through an exchange, or prohibit licensed agents and brokers from using an exchange.  Such proposals were numerous – and dangerous to the business models of our clients.

While our clients in the distributions system recognized that a health insurance exchange would be coming to Maryland with the passage of the ACA, they also recognized the need to educate public officials, both elected and nonelected, about the services they provide, the value of those services, and also their political power as an industry in Maryland.  To accomplish this goal, we recommended combining several of the tools we use (see Advocacy Tools and Methods) and creating the Health Insurance Buyers and Brokers Coalition (HIBBC).  The primary goal of HIBBC was to retain the benefit of an effective and efficient health insurance distribution network in Maryland while opposing some of the radical changes offered by other interests, both public and private, in the name of the ACA and health care reform.

HIBBC is a coalition formed and funded by two clients of Bryson F. Popham, P.A.: the Maryland Association of Health Underwriters (MAHU) and the National Association of Insurance and Financial Advisors of Maryland (NAIFA-MD).  These two organizations represent a significant segment of health insurance distributors in the State, but to make its voice even more effective, membership in HIBBC also includes businesses that purchase group health insurance for their employees.  HIBBC was co-chaired by a health insurance broker and a small business-owner representing buyers.  That combination brought instant credibility to the HIBBC public advocacy effort.

HIBBC also recognized the value of respected third party opinions in this debate.  It commissioned a report by Jonathan Gruber, an economics professor from the Massachusetts Institute of Technology and a nationally recognized authority on health care policy, to compare the current private sector health insurance distribution system in Maryland with the health insurance exchange in Massachusetts.  The report observed that “Maryland is well-positioned to leverage the existing private sector infrastructure rather than expend scare public resources to establish a new public entity.”   This served as an important affirmation of the value of our clients, at a time when public officials were considering a complete overhaul of the health insurance distribution system in Maryland.

HIBBC also hired a Maryland economist to examine the impact of health insurance brokers in Maryland.  That report, entitled “20,000 Direct Jobs in Maryland,” clearly illustrates the effect of this industry on jobs in the State.  Copies of both reports were submitted to legislative committees, Executive Branch agencies and provided to the media to help in shaping the public debate.

Armed with these tools, HIBBC members contacted elected officials throughout the State advising them that the distribution component of the health insurance system works well in Maryland and recommending against wholesale changes to it.  Their message was simple: the distribution system isn’t broken, so don’t toss it out and start over.

As a result of the efforts of HIBBC members, several important provisions were included in the Maryland legislation implementing the ACA:

• It includes a statement that the purpose of the new insurance exchange created by the last is to supplement (not replace) the existing market for health insurance in the State;
• It prohibits  the exchange from offering products or services unrelated to health insurance without prior authorization by the legislature;
• It limits the role of navigators and similar persons to offering exchange products only, and prohibiting them from unfairly competing with licensed producers by advising consumers on products off the exchange.

In sum, HIBBC proved to be a very effective tool to supplement the advocacy effort extended on behalf of our clients.