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Some states balk at enforcing health law’s insurance protections

Florida regulators won’t penalize insurance companies that violate new health law consumer protections that take effect in January but will report them to the federal government, according to an agreement between the state and federal officials.

Citing lack of money and legal authority, Pennsylvania’s top insurance regulator hasn’t decided whether his agency can enforce the provisions, which include some of the most popular elements of the 2010 federal health law, such as requiring insurers to provide coverage to all applicants regardless of their health status, prohibiting insurers from charging more based on gender or health, and greatly limiting what insurers can charge for premiums based on age.

At least three others— Missouri, Oklahoma and Wyoming — have informed the Obama administration that they can’t or won’t enforce the law. Some officials say they have not received the authority they need to do so from their state legislatures.

While federal officials say they will step in if necessary, policy experts note they have little experience enforcing health insurance laws and few resources in states to do it.

“HHS has no real record of enforcing health insurance rules in the states,” said Jay Angoff, who was in charge of developing the new online insurance marketplaces for HHS and is now a partner at the Washington, D.C., law firm Mehri & Skalet.

To be sure, many states have agreed to oversee the changes – including the 16 states, plus the District of Columbia, that won conditional approval to set up their own insurance exchanges. Even some states that defaulted to a federally run exchange, such as Texas, Mississippi, South Dakota and Alaska, have agreed to enforce the new provisions.

“We don’t pick and choose which laws to enforce or not enforce,” said Aaron Sisk of the Mississippi Insurance Department.

The Texas Insurance Department issued a directive today saying it would require health insurers and HMOs to “comply with the terms of the policies they have issued, regardless of whether a particular term is based on a federal or state law.”

The enforcement issue needs to be settled now because health plans are beginning this month to submit insurance products to state regulators that they hope to sell in the new online marketplaces beginning this fall. If states balk at reviewing the plans for compliance with Obamacare rules, insurers could face oversight from both state and federal regulators. It’s unclear what impact that would have on consumers seeking help.

“We will see a lot of variability,” in how the law is enforced, said Alan Weil, executive director of the National Academy of State Health Policy. But Weil noted that’s no different than today with some states approving insurance rates before policies are sold and many that do not.

Commonwealth Fund report last month found just 11 states and the District of Columbia had begun to change state laws to give their insurance regulators authority to enforce the law.

Wyoming’s Deputy Insurance Commissioner Stephanie Bryant McGee said her agency does not currently have that authority. But she said her staff has been successful on getting voluntary compliance by companies, and “I assume we will continue to similarly communicate with insurers in the future.”

She said she has been notified the federal government will also step in if need be.

Montana and Delaware have also agreed to evaluate plans and respond to consumer complaints, but leave any enforcement penalties to the federal government.

Pennsylvania Insurance Commissioner Michael Consedine said his reviewers could add the federal provisions to their annual audits of insurance plans, but he said it’s unclear if they have the legal authority to penalize violators. He said lack of funding may also impede enforcement efforts. “We may need help with having the dollars to do this,” he said.

Gary Cohen, director of the federal Center for Consumer Information and Insurance Oversight, said the administration has been in talks with states for months to persuade them to enforce the new rules. Cohen said states are in a better position to do it because they already enforce state health insurance laws.

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