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UPDATED: Senate, House conferees agree to compromise plan to narrowly align state insurance rules with 'Obamacare'

Senior Political Reporter

June 20. 2013 3:01PM

CONCORD – Senate and House negotiators Thursday reached a compromise deal on a scaled-back proposal to narrowly align some state insurance rules with President Barack Obama's Affordable Care Act.

But the two key Republican senators who negotiated the deal in the end refused to sign off on the committee of conference report. Senate Majority Leader Jeb Bradley, R-Wolfeboro, and Sen. Andy Sanborn, R-Bedford, were replaced by Senate President Peter Bragdon, R-Milford, and Sen. Bob Odell, R-Lempster.

The plan will now go to the full House and Senate, and if, approved, on to Gov. Maggie Hassan.

The House had passed a plan to broadly align the state small market insurance rules with the ACA, but Senate Republicans were concerned that the House, along with Hassan and the state Insurance Department were trying to force the state into creating its own state-based exchange under the federal law.

Those Republicans cited an existing state law, passed last year when the GOP controlled both the House and Senate, that forbids the state from creating its own exchange. Democratic Gov. John Lynch signed that bill at the time.

The plan agreed to Thursday carves out state-regulated rules on "age banding" to avoid the potential implementation of pure community rating, which both sides realized would most likely lead to increased premiums and an upward costs spiral.

Bradley and Sanborn were concerned that the insurance department may have moved to fully align the state rules with the federal rules through the state rule-making process, and so they insisted that the plan include a provision stating that nothing in the bill should be construed as expanding the department's authority to adopt rules.

Senate Republicans initially killed the broad House bill, choosing instead to have the federal government pre-empt state rules and take full responsibility for administering it.

But the insurance department then warned that not all of the state rules would be preempted and the potential conflicts would cause confusion in the market, especially on the age issue, through the implementation of community rating.

The Senate, as a result, then agreed but agreed to negotiate with the House.

Even as an agreement was about to be reached, Bradley said he was unhappy with it, and, ultimately, he did not sign it.

"I still have the same reservations I had (on Wednesday). Whether we really need to do this is the question I'm struggling with," Bradley said.

"I accept the fact that pure community rating will be a problem for the people of New Hampshire. There is no question about that. But what's the best way to avoid it?"

"To me," Bradley said, "it's for the insurance department to recognize that federal law says what federal law ways, which is one-year age banding. However, we're not in that place and so I don't want to have bureaucratically-imposed community rating."

Sanborn said, "We've all been in discussions on these issues since the first week of February and here we sit at the end of June and I don't think there is any more clarity today than there was in February or even two years ago."

"I remain exceptionally concerned about the approach of the Department of Insurance and Governor Hassan and how they're trying to coerce 'Obamacare' down onto the taxpayers of the state," Sanborn said. "And it makes me uncomfortable enough based on what's happened over the four months that I did not sign it."

Bradley said he refused to sign the report due to "an accumulation of factors that began with the fact that the insurance department and the governor tried, without getting proper approval" from the legislative Health Care Oversight Committee to create "a state-based partnership, which was expressly forbidden by state law.

"It's been a winter and spring of constant disagreements and battling and the desire of the governor's office and insurance department to basically eviscerate New Hampshire law and align them with the Affordable Care Act and basically cede any regulatory control of New Hampshire's insurance regulations to the Affordable Care Act," Bradley said. "The only thing we get out of that is the ability of our department to push around the federal bureaucrats' paperwork. That, to me, is not a benefit."

But Rep. Donna Schlachman, D-Exeter, said the bill that passed the House was "very extensive," and the plan agreed to "is very different from where the House started and we've come along way."

Rep. Ed Butler, D-Hart's Location, said he believed "there has been no malintent in what the insurance department has done. I believe it has not been political but to move what they believe their responsibilities are forward."

The state Democratic Party criticized Bradley for negotiating a compromise and then "backing away" to appease "his Tea Party base."

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