New Hampshire has taken a step closer to passing an Affordable Care Act “backstop” law, which would write certain provisions of the ACA into state law. This would keep those provisions in effect if the ACA is repealed or revised at the federal level or shot down in court.  

This year, there are two ACA “backstop” bills – HB 233 in the House and SB 4 in the Senate. Those have each passed in their respective branches of the Legislature and are now being debated by elected officials from the other branch.  

Gov. Chris Sununu has previously stated his support for provisions of the ACA, particularly those increasing access to addiction treatment, and so there’s a good chance he would sign these bills if one of them passes. 

What an ACA backstop includes 

The two bills are extremely similar. Both would encode the following ACA rules into New Hampshire state law:  

They would restrict the reasons insurers can charge patients a higher premium. Insurers wouldn’t be able to charge more if someone has health problems or is disabled. They could charge more based on someone’s age or tobacco use, but only up to a certain limit.  

Insurance plans would be required to cover the list of ACA “essential health benefits”, which include mental health care, substance abuse treatment, prescription drug benefits and maternity and newborn care, among others.  

Plans would not be allowed to impose a lifetime or annual limit on someone’s insurance benefits.  

Plans could not refuse anyone coverage because of a preexisting condition.  

The bills also cover parts of the ACA that regulate emergency room care and set rules for open enrollment periods for employer-sponsored health plans.  

Exceptions and exclusions 

The bills do not include a state-level version of the ACA’s individual mandate, which required people to purchase health care coverage or pay a tax penalty. That provision of the ACA was shot down in court.  

They also wouldn’t apply to self-funded single employer health care plans, like those offered by large corporations. Those are only subject to federal, not state, regulation. That means that even if New Hampshire passed an ACA backstop bill, if the ACA was shot down those big employer plans would not be required to cover preexisting conditions.  

Similar moves in other states 

Four states – Colorado, Massachusetts, New York and Virginia – have adopted similar laws. More states have implemented protection just for preexisting condition coverage. 

Reasons for an ACA backstop law 

Supporters of the two bills point out that while over half of Americans support the ACA, there continue to be efforts at the federal level and through the courts to change or repeal it. By passing a backstop bill, New Hampshire lawmakers would ensure that patients here are still guaranteed their essential health benefits and preexisting condition coverage even if things go haywire in Washington.  

The bill would also give New Hampshire insurers confidence that even if things are uncertain at the federal level, they can anticipate consistency here in the Granite State, which would help them to create more stable pricing plans.  

Potential problems and pitfalls 

Opponents argue that the bills are precipitous. After all, if the ACA was repealed or shot down, wouldn’t New Hampshire want to sit down and revisit whether these benefit guarantees still made sense? In that case, why put them into state law now? Others expressed concern that the mandates would drive insurance companies out of state, if they weren’t shared nationwide. They argue that New Hampshire would be better served by encouraging competition in the insurance market, which would help keep prices low and offer consumers more choice.