Gadfly Stings Idaho's Insurance Exchange

     BOISE, Idaho (CN) - Idaho's response to Obamacare, Your Health Idaho, could be breaking state law, claims a man who says Idaho's federally mandated, state-run health exchange is publishing ads that contain "misleading" information.
     Steve Ackerman, a political science professor at the College of Idaho, claims the state's health exchange is violating Idaho Code: Title 41-1304, which prohibits "untrue, deceptive or misleading" information in insurance advertisements.
     Ackerman claims Your Health Idaho's ads fit the bill, but no one is paying attention.
     "The Department of Health and Human Services reports a number representing how many people have signed up for a plan using the exchange," Ackerman said in an interview.
     "That number is misleading and is being used to promote Your Health Idaho. State law says you can't make false or misleading statements in advertising concerning insurance."
     Ackerman distinguishes between people who signed up for a plan and those who have actually paid for one, and claims HHS is trying to manipulate public perception of a controversial and problematic program.
     "The HHS reports that of the 260,000 Idaho residents that do not have insurance, 30,000 have chosen plans," Ackerman told Courthouse News on Tuesday.
     "That number is low, but the concern is that it is very misleading. It only reflects the number of people who 'chose a plan,' not the number of people who actually 'signed up.' You can't say you have sold 6 billion burgers unless people actually paid for them. I think they are trying to make it look like more people are signing up and paying than really are."
     
     Is There Really a Problem?
     Governor Butch Otter's press secretary, Jon Hanion, said he was not aware of any violations of Idaho Code for false or misleading advertising involving the exchange.
     "This is the first I've heard of it," Hanion said. "I get a lot of inquiries, but it's the first time something like this has come up."
     Your Health Idaho doesn't seem troubled, either.
     "Because Idaho is using the federal application platform for this first year, we base our metrics on the 'Health Insurance Marketplace: February Enrollment Report' issued by the U.S. Department of Health and Human Services on February 12, 2014," Your Health Idaho Director of Marketing and Communication Jody Olson said in an email.
     "According to this report, 32,899 Idahoans have completed the application process and signed up for/selected a marketplace plan. We understand these individuals will not be enrolled in their health plan until they pay their first premium to the carrier of their choice. Our advertising says, 'More than 30,000 have signed up,' which is a factual statement."
     Your Health Idaho board member, Dr. John Livingston, says he does not believe the exchange is breaking any laws because it is using the only information available.
     "We are dealing with identifying metrics," Livingston said. "The problem is that we are dealing with the inadequacies of the federal platform.
     "We couldn't build our own in three months, before the start of the first enrollment cycle, so we went with the federal government's platform and we have to work with the numbers they give us.
     "It's very difficult to get a firm handle on what products have been bought and paid for until the carriers report it, 30 to 60 days after the fact."
     But Ackerman claims that since the information in the exchange's advertising is open to interpretation, it shouldn't be used at all.
     "No exchange can claim enrollment numbers unless it can tell how many people purchased the product," Ackerman said. The problem is that they are touting it.
     "Why did they need to point out they are 'second in the nation per capita' on enrollments? If it is only factual, then why is Jody Olson quoted as saying she is 'excited enrollment numbers have reached nearly 33,000?' That sounds like bragging to me."
     Your Health Idaho's Olson says she isn't worried.
     "Regarding Idaho Code: Title 41-1304, our legal counsel states that he has reviewed this issue and is not concerned that there has been a violation of this statute," she wrote in her email.
     Livingston said he does not believe the exchange has done anything wrong.
     "There is no false advertising going on," he said. "We would have to give out information we knew was wrong [for it to be false advertising], but we are giving out the best information we have, provided by the federal platform."
     
     Is There an Out?
     Ackerman's beef is not the first claim of problems and probably won't be the last concerning the state exchange.
     Gov. Otter, a Republican in an extremely Republican state, surprised the political world last year when he declared that Idaho would set up a health exchange rather than mount a legal challenge to it, as Republicans in other red states have done.
     Ackerman warned Idaho lawmakers during the 2013 legislative session that the state would be stepping into a hornets' nest by agreeing to a government-mandated health care program.
     Some lawmakers were afraid of what might happen if the state defaulted to the federal program, but Ackerman says the state could have rejected the federal intrusion because, he claims, under the U.S. Constitution, states are not obligated to accept government-imposed programs.
     "If we say no to a state exchange, the federal exchange cannot enforce tax mandates on businesses and citizens," Ackerman told the state's Commerce and Human Resources Committee in March 2013.
     Lawmakers, however, said Idahoans had "no choice" but to accept a state-run health exchange if they wanted to have local control over a federal health care mandate.
     But Ackerman said: "Control over the governance doesn't really matter when federal rules control the buying and selling of insurance, the true operations or the guts of the exchange."
     Ackerman also warned against an appointed board that has no state legislative oversight.
     It didn't take long for that fears to become substantiated. Just months after the Your Health Idaho board of directors was appointed, it awarded a $375,000 no-bid contract to one of its own members.
     That member has stepped down and the contract has been canceled. The Legislature is working on changes that would impose some degree of oversight.
     "I also question their [Your Health Idaho's] performance," Ackerman said. "The Kaiser Family Foundation estimates 258,000 people in Idaho are without insurance. The enrollment period is more than two-thirds over and Your Health Idaho has 'enrolled' 32,899 people? That is 12.8 percent. And how many of them lacked insurance in the first place? We don't know. How many of them got their policies canceled and then went to Your Health Idaho? We don't know."
     President Obama said Tuesday that 4 million people have signed up for health insurance so far under the Affordable Care Act.