ACA Sabotage

Last fall I wrote about Yet Another Sabotage Attack® on the ACA by the Trump administration, this time in the form of CMS Administrator Seema Verma completely warping the entire point behind the 1332 Waiver provision. Here's the backstory:

One of the great strengths and dangers of the ACA is that it includes tools for individual states to modify the law to some degree by improving how it works at the local level. The main way this can be done is something called a "Section 1332 State Innovation Waiver":

Section 1332 of the Affordable Care Act (ACA) permits a state to apply for a State Innovation Waiver to pursue innovative strategies for providing their residents with access to high quality, affordable health insurance while retaining the basic protections of the ACA.

I don't know if I'm just asleep at the wheel when it comes to healthcare happenings in Washington State lately, but this one caught me by surprise as well:

Today I signed a bill that protects Affordable Care Act health care insurance practices in WA state. This bill assures Washingtonians that regardless of what happens in D.C., we’re protecting your access to care here here at home. #waleg #ACAhttps://t.co/e3g35Fch68

— Governor Jay Inslee (@GovInslee) April 17, 2019

From the official press release:

There's been so many Big Important Breaking News stories about healthcare this week I haven't been able to keep up. On top of the ACA 2.0 rollout and Trump's kamikaze #TexasFoldEm maneuver via the Dept. of Justice memo and the release of the 2019 Open Enrollment Period report and a major judicial ruling which torpedoed Medicaid expansion work requirements in Kentucky (again) and Arkansas which also had immediate implications for Idaho and Iowa...and potentially other states as well!!

And then, this evening, THIS just happened:

(sigh) I was planning on writing up an in-depth analysis of the 2019 ACA Open Enrollment Period report which was just released by CMS a few hours ago.

Instead, in a bit of sick irony, I have to spend the evening writing about this (via Nicholas Bagley):

The Trump Administration Now Thinks the Entire ACA Should Fall

In a stunning, two-sentence letter submitted to the Fifth Circuit today, the Justice Department announced that it now thinks the entire Affordable Care Act should be enjoined. That’s an even more extreme position than the one it advanced at the district court in Texas v. Azar, when it argued that the court should “only” zero out the protections for people with preexisting conditions.

(sigh) Well, it was a good run while it lasted. As I noted last week, New Mexico's new Democratic trifecta government has been on something of a tear in the first few months of 2019, either passing or advancing a number of positive healthcare policies, including:

In addition, there was one more important piece of legislation which looked like it was going to go through without too much fuss: HB 436, which would simply lock in protections for New Mexico residents with pre-existing conditions at the same level that the Affordable Care Act already does nationally:

(sigh) Here we go again...via CMS:

CMS seeks recommendations that allow Americans to purchase health insurance across state lines
Administration continues efforts to increase consumer choice, promote competition and drive down prices in the health insurance market

The Centers for Medicare & Medicaid Services (CMS) issued a request for information (RFI) today that solicits recommendations on how to eliminate regulatory, operational and financial barriers to enhance issuers’ ability to sell health insurance coverage across state lines. This announcement builds on President Trump’s October 12, 2017 Executive Order, “Promoting Healthcare Choice and Competition Across the United States,” which intends to provide Americans relief from rising premiums by increasing consumer choice and competition.

A big shout-out to Josh Dorner for providing a roundup of the current status of a five different lawsuits (six, really, although two of them are on the same topic in two different states) fighting back against GOP/Trump Administration sabotage of the Affordable Care Act, including:

There's also the various CSR reimbursement payment lawsuits filed by various insurance carriers. Those should have been a fairly minor issue only relating to about $2 billion in payments dating back to the 4th quarter of 2017...but as I explained in detail here, these suits may instead turn into an even more massive headache for the Trump Administration, and rightly so.

Note: Huge props to Amy Lotven for breaking this story!

WARNING: Before you read any of the following, first read this entire post, which explains the latest insane twist in the never-ending Cost Sharing Reduction legal saga. Yeah, I know, I know...just do it. I'll wait.

....

OK, now that you're all caught up, there's yet another aspect to this craziness which has arisen.

Towards the end of the first post, I noted that:

I'm not sure of the details on how those MLR rebates are allocated, but I know in 2018, nearly 6 million people received an average rebate of $119 apiece. Most of that came from the large and small group markets, but around 1 million people on the ACA individual market received $137 apiece (around $133 million total). That's right: It's theoretically possible that the carriers could have to dole out up to 75 times as much in MLR rebates for 2018 as they did last year.

First of all, it turns out that the amount of money potentially at stake is even higher than that:

Note: Huge props to Amy Lotven for breaking this story.

I've written about the CSR Saga so many times that I'm getting tired of explaining the backstory. However, once again, here's the short version:

Once again, the very short version is this:

  • The contract insurance carriers sign when they offer policies on the ACA exchanges is to cover a chunk of low-income enrollee deductibles, co-pays and other out-of-pocket costs which would normally be the enrollees' responsibility. These are called Cost Sharing Reductions (CSR).
  • The carriers then submit their CSR invoices to the federal government, which is supposed to reimburse the insurance carriers every month.
  • Donald Trump cut off contrctually-required CSR reimbursement payments to insurance carriers in October 2017...and hasn't made any payments since.

(I'm not going to rehash how Trump was able to cut off those payments with a Thanos-like snap of his fingers; suffice to say it's connected to a lawsuit filed so long ago that John friggin' Boehner was still Speaker of the House at the time).

 

I noted last week that Congress held not one, not two but three full hearings regarding various ACA-related issues, at which a couple of friends of mine testified (and a couple more were on the other side of the microphone, as sitting members of Congress).

Well, prepare for another one tomorrow (Wednesday, February 13th):

HEARING ON “STRENGTHENING OUR HEALTH CARE SYSTEM: LEGISLATION TO REVERSE ACA SABOTAGE AND ENSURE PRE-EXISTING CONDITIONS PROTECTIONS”

Date: Wednesday, February 13, 2019 - 10:30am
Location: 2322 Rayburn House Office Building
Subcommittees: Health (116th Congress)

The Subcommittee on Health of the Committee on Energy and Commerce held a legislative hearing on Wednesday, February 13, 2019, at 10:30 a.m. in room 2322 of the Rayburn House Office Building. The bills to be the subject of the legislative hearing are as follow:

As always, Louise Norris has the skinny:

In September 2018, the New Mexico Office of the Superintendent of Insurance (OSI) and Health Action NM (an advocacy group for universal access to health care) presented details about potential state actions to stabilize the individual market. OSI has the authority to regulate some aspects of the plans, including maximum duration, but they noted that legislation would be needed for other changes, including minimum loss ratios and benefit mandates.

New Mexico’s insurance regulations were amended, effective February 1, 2019, to define short-term plans as nonrenewable, and with terms of no more than three months. The regulations also prohibit insurers from selling a short-term plan to anyone who has had short-term coverage within the previous 12 months.

As I noted a few weeks ago, I haven't written a whole lot about the idiotic (but terrifyingly so) TexasFoldEm lawsuit in awhile. Part of this is because I was out of the country over the holidays; part is because there hasn't been a whole lot of movement on the case since right-wing federal Judge Reed O'Connor ruled that the ACA was unconstitutional using a legal argument so thin it hula hoops with a Cheerio.

Anyway, when I last checked in, a coalition of Attorneys General from 16 states (plus the District of Columbia) had formally filed to appeal Judge O'Connor's ruling, and the U.S. House of Representatives had also formally voted to intervene on behalf of defending the ACA from the lawsuit, which was filed last year by a coalition of 18 Republican Attorneys General, plus two Republican Governors.

This Just In from Covered California...

Covered California Plan Selections Remain Steady at 1.5 Million, but a Significant Drop in New Consumers Signals Need to Restore Penalty

  • Covered California finishes open enrollment with 1.5 million plan selections, which is virtually identical to 2018’s total, despite federal changes.
  • A key reason for the steady enrollment is that more people entered the renewal process for 2019 coverage after a strong enrollment period for 2018.
  • The federal removal of the individual mandate penalty appears to have had a substantial impact, leading to a decrease of 23.7 percent in new enrollment.

SACRAMENTO, Calif. — Covered California announced that more than 1.5 million consumers selected a health plan for 2019 coverage during the most recent open-enrollment period, a figure in line with last year’s total. There was a 7.5 percent increase in the number of existing consumers renewing their coverage and a 23.7 percent drop in the number of new consumers signing up for 2019.

Here's another wonky-but-important negative change which Trump's HHS Dept. is planning on making to the ACA exchanges starting in 2020:

We propose a premium adjustment percentage of 1.2969721275 for the 2020 benefit year, including a proposed change to the premium measure for calculating the premium adjustment percentage. Under §156.130(e), we propose to use average per enrollee private health insurance premiums (excluding Medigap and property and casualty insurance), instead of employer-sponsored insurance premiums, which were used in the calculation for previous benefit years, for purposes of calculating the premium adjustment percentage for the 2020 benefit year. The annual premium adjustment percentage sets the rate of increase for several parameters detailed in the PPACA, including: the annual limitation on cost sharing (defined at §156.130(a)), the required contribution percentage used to determine eligibility for certain exemptions under section 5000A of the Code (defined at §155.605(d)(2)), and the employer shared responsibility payments under sections 4980H(a) and 4980H(b) of the Code.

Here's what this seeming gobbledygook means, as explained by Matt Fiedler of the Brookings Institute:

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