When CMS told Idaho it couldn’t move ahead with plans to allow health insurers to offer coverage which doesn’t comply with the Affordable Care Act (ACA), Idaho Gov. Butch Otter didn’t see it as a rejection but rather the start of a negotiation.

Otter had proposed allowing “state-based plans” which brought back elements of pre-ACA individual market insurance design, like charging more or denying coverage based on pre-existing conditions and placing lifetime or annual caps on benefits. One insurer, Blue Cross of Idaho, was already set to offer the plans at less than half the monthly premium cost of a similar ACA exchange plan. But CMS Administrator Seema Verma, MPH, said the policy would be a failure to “substantially” uphold the law.

That’s the key word Otter and lawyers for Blue Cross of Idaho—what does “substantially” mean?

The argument obtained by the Idaho Statesman from attorney Anthony Shelley, outside counsel to Blue Cross of Idaho, is Congress meant to give “leeway for a state to decide sometimes not to enforce” the ACA, such as how certain “grandmothered” pre-ACA plans have been allowed to continue.

The almost-apologetic tone of the CMS letter, which said it “is certainly not our preference” to take over enforcement of the ACA from a state, did encourage Idaho to continue discussing options with federal agencies to offer insurance which it determines to comply with the law.

“We consider the letter an invitation from CMS to continue discussing the specifics of what can and cannot be included in state-based plans,” Otter said in a statement. “We will consider all possible options and then continue discussions with CMS and HHS on how best to achieve our shared goals of reducing the costs of coverage and stabilizing our health insurance market.”

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