In a recent letter to HHS Secretary Sebelius, Wisconsin Insurance Commissioner Ted Nickel requested that states be allowed 60 days after HHS issues final rules regarding EHBs to select a benchmark plan for their respective states. The objection to making a decision on EHB in the absence of clear guidance is not new, but Commission Nickel's letter goes on to request that HHS refrain from interpreting the lack of a decision on state benchmark as an admission that the state would prefer a federally imposed benchmark. "With no EHB regulations issued to date, two days before states are to identify their EHB Benchmark plans, we respectfully request that HHS not make this important decision on behalf of Wisconsin," the letter states.

In addition, West Virginia Governor Earl Ray Tomblin, a Democrat up for reelection, took an approach more common among Republican governors in stating concerns over the lack of guidance from HHS with regard to EHBs as justification for what will at least be a delay in his selection of a benchmark benefit plan. "It is critical to our analysis of essential health benefits that we measure the impact of this federal requirement on our citizens in as accurate a manner as possible, which can only happen through the clarity of final federal rules," Tomblin wrote.