Coronavirus likely forced 27 million off their insurance

The coronavirus pandemic is hitting Main Street and triggering ...

Roughly 27 million people have likely have lost job-based health coverage since the coronavirus shocked the economy, according to new estimates from the Kaiser Family Foundation.

Why it matters: Most of these people will be able sign up for other sources of coverage, but millions are still doomed to be uninsured in the midst of a pandemic, Axios’ Bob Herman reports.

By the numbers: For the 27 million people who are losing their job-based coverage, about 80% have other options, said Rachel Garfield, a health policy expert at the Kaiser Family Foundation and lead author of the report.

  • Roughly half are eligible for Medicaid or the Children’s Health Insurance Program.
  • Another third are eligible for subsidized health plans on the Affordable Care Act’s marketplaces.
  • The remaining 20% are pretty much out of luck because they live in a state that didn’t expand Medicaid or are ineligible for other kinds of subsidized coverage.
  • House Speaker Nancy Pelosi’s latest coronavirus relief bill would fully subsidize the cost of maintaining an employer plan through COBRA — an option that would otherwise be prohibitively expensive for many people. But that’s a long way from becoming law.

The bottom line: The coronavirus is blowing up health insurance at a time when people need it most.





Eligibility for ACA Health Coverage Following Job Loss

Eligibility for ACA Health Coverage Following Job Loss

Eligibility for ACA Health Coverage Following Job Loss – Methods ...

The economic consequences of the coronavirus pandemic have led to historic level of job loss in the United States. Social distancing policies required to address the crisis have led many businesses to cut hours, cease operations, or close altogether. Between March 1st and May 2nd, 2020, more than 31 million people had filed for unemployment insurance. Actual loss of jobs and income are likely even higher, as some people may be only marginally employed or may not have filed for benefits. Some of these unemployed workers may go back to work as social distancing curbs are relaxed, though further job loss is also possible if the economic downturn continues or deepens.

In addition to loss of income, job loss carries the risk of loss of health insurance for people who were receiving health coverage as a benefit through their employer. People who lose employer-sponsored insurance (ESI) often can elect to continue it for a period by paying the full premium (called COBRA continuation) or may become eligible for Medicaid or subsidized coverage through the Affordable Care Act (ACA) marketplaces. Over time, as unemployment benefits end, some may fall into the “coverage gap” that exists in states that have not expanded Medicaid under the ACA.

In this analysis, we examine the potential loss of ESI among people in families where someone lost employment between March 1st, 2020 and May 2nd, 2020 and estimate their eligibility for ACA coverage, including Medicaid and marketplace subsidies, as well as private coverage as a dependent (see detailed Methods at the end of this brief). To illustrate eligibility as their state and federal unemployment insurance (UI) benefits cease, we show eligibility for this population as of May 2020 and January 2021, when most will have exhausted their UI benefits.

What are coverage options for people losing ESI?

Eligibility for health coverage for people who lose ESI depends on many factors, including income while working and family income while unemployed, state of residence, and family status. Some people may be ineligible for coverage options, and others may be eligible but opt not to enroll. Some employers may temporarily continue coverage after job loss (for example, through the end of the month), but such extensions of coverage are typically limited to short periods.

Medicaid: Some people who lose their jobs and health coverage—especially those who live in states that expanded Medicaid under the ACA— may become newly eligible1 for Medicaid if their income falls below state eligibility limits (138% of poverty in states that expanded under the ACA). For Medicaid eligibility, income is calculated based on other income in the family plus any state unemployment benefit received (though the $600 per week federal supplemental payment available through the end of July is excluded). Income is determined on a current basis, so prior wages for workers recently unemployed are not relevant. In states that have not expanded Medicaid under the ACA, eligibility is generally limited to parents with very low incomes (typically below 50% of poverty and in some states quite a bit less); thus many adults may fall into the “coverage gap” that exists for those with incomes above Medicaid limits but below poverty (which is the minimum eligibility threshold for marketplace subsidies under the ACA). Undocumented immigrants are ineligible for Medicaid, and recent immigrants (those here for fewer than five years) are ineligible in most cases.

Marketplace: ACA marketplace coverage is available to legal residents who are not eligible for Medicaid and do not have an affordable offer of ESI; subsidies for marketplace coverage are available to people with family income between 100% and 400% of poverty. Some people who lose ESI may be newly-eligible for income-based subsidies, based on other family income plus any state and new federal unemployment benefit received (including the $600 per week federal supplement, unlike for Medicaid).2 While current income is used for Medicaid eligibility, annual income for the calendar year is used for marketplace subsidy eligibility. Advance subsidies are available based on estimated annual income, but the subsidies are reconciled based on actual income on the tax return filed the following year. People who lose ESI due to job loss qualify for a special enrollment period (SEP) for marketplace coverage.3 As with Medicaid, undocumented immigrants are ineligible for marketplace coverage or subsidies. However, recent immigrants, including those whose income makes them otherwise eligible for Medicaid, can receive marketplace subsidies.

ESI Dependent Coverage: People who lose jobs may be eligible for ESI as a dependent under a spouse or parent’s job-based coverage. Some people may have been covered as a dependent prior to job loss, and some may switch from their own coverage to coverage as a dependent.

COBRA: Many people who lose their job-based insurance can continue that coverage through COBRA, although it is typically quite expensive since unemployed workers generally have to pay the entire premium – employer premiums average $7,188 for a single person and $20,576 for a family of four – plus an additional 2%. People who are eligible for subsidized coverage through Medicaid or the marketplaces are likely to opt for that coverage over COBRA, though COBRA may be the only option available to some people who are income-ineligible for ACA coverage.

Short-term plans: Short-term plans, which can be offered for up to a year and can sometimes be renewed under revised rules from the Trump administration, are also a potential option for people losing their employer-sponsored insurance. These plans generally carry lower premiums than COBRA or ACA-compliant coverage, as they often provider more limited benefits and usually deny coverage to people with pre-existing conditions. Even when coverage is issued, insurers generally may challenge benefit claims that they believe resulted from pre-existing medical problems; given the long latency between initial infection and sickness with COVID-19, these plans are riskier than usual during the current pandemic. People cannot use ACA subsidies toward short-term plan premiums.

Our analysis examines eligibility for Medicaid, marketplace subsidies, and dependent ESI coverage. We do not estimate enrollment in COBRA, short-term plans, or temporary continuation of ESI. See Methods for more details.

How does coverage and eligibility change following job loss?

Between March 1st, 2020 and May 2nd, 2020, we estimate that nearly 78 million people lived in a family in which someone lost a job. Most people in these families (61%, or 47.5 million) were covered by ESI prior to job loss. Nearly one in five (17%) had Medicaid, and close to one in ten (9%) were uninsured. The remaining share either had direct purchase (marketplace) coverage (7%) or had other coverage such as Medicare or military coverage (6%) (Figure 1).

Eligibility for ACA Health Coverage Following Job Loss | The Henry ...

We estimate that, as of May 2nd, 2020, nearly 27 million people could potentially lose ESI and become uninsured following job loss (Figure 1). This total includes people who lost their own ESI and those who lost dependent coverage when a family member lost a job and ESI. Additionally, some people who otherwise would lose ESI are able to retain job-based coverage by switching to a plan offered to a family member: we estimate that 19 million people switch to coverage offered by the employer of a working spouse or parent. A very small number of people who lose ESI (1.6 million) also had another source of coverage at the same time (such as Medicare) and retain that other coverage. These coverage loss estimates are based on our assumptions about who likely filed for UI as of May 2nd, 2020 and the availability of other ESI options in their family (see Methods for more detail).

Among people who become uninsured after job loss, we estimate that nearly half (12.7 million) are eligible for Medicaid, and an additional 8.4 million are eligible for marketplace subsidies, as of May 2020 (Figure 2). In total, 79% of those losing ESI and becoming uninsured are eligible for publicly-subsidized coverage in May. Approximately 5.7 million people who lose ESI due to job loss are not eligible for subsidized coverage, including almost 150,000 people who fall into the coverage gap, 3.7 million people ineligible due to family income being above eligibility limits, 1.3 million people who we estimate have an affordable offer of ESI through another working family member, and about 530,000 people who do not meet citizenship or immigration requirements. We project that very few people fall into the coverage gap immediately after job loss (as of May 2020) because wages before job loss plus unemployment benefits (including the temporary $600 per week federal supplement added by Congress) push annual income for many unemployed workers in non-expansion states above the poverty level, making them eligibility for ACA marketplace subsidies for the rest of the calendar year.

By January 2021, when UI benefits cease for most people, we estimate that eligibility shifts to nearly 17 million being eligible for Medicaid and about 6 million being eligible for marketplace subsidies (Figure 2), assuming those who are recently unemployed have not found work. Many unemployed workers who are eligible for ACA marketplace subsidies during 2020 would instead be eligible for Medicaid or fall into the coverage gap during 2021. The number in the coverage gap grows to 1.9 million (an increase of more than 80% of its previous size), and the number ineligible for coverage due to income shrinks to 0.9 million.

Estimates of coverage loss and eligibility vary by state, depending largely on underlying state employment by industry and Medicaid expansion status. Not surprisingly, states in which the largest number of people are estimated to lose ESI are large states with many people working in affected industries (Appendix Table 1). Eight states (California, Texas, Pennsylvania, New York, Georgia, Florida, Michigan, and Ohio) account for just under half (49%) of all people who lose ESI. Five of the top eight states have expanded Medicaid, and people eligible for Medicaid among the potentially newly uninsured as of May 2020 in these five states account for 40% of all people in that group nationally. Overall, patterns by state Medicaid expansion status show that people in expansion states are much more likely to be eligible for Medicaid, while those in non-expansion states are more likely to qualify for marketplace subsidies (Figure 3). However, the number of people qualifying for marketplace subsidies is similar across the two sets of states, as more people live in expansion states. Three states that have not expanded Medicaid, including Texas, Georgia, and Florida, account for 30% of people who become marketplace tax credit eligible nationally in May 2020. Assuming unemployment extends into 2021 when UI benefits would likely expire for most families, the proportion eligible for Medicaid would increase in expansion states while non-expansion states may see more nonelderly adults moving into the Medicaid coverage gap (Figure 4; Appendix Table 2).

Figure 3: May 2020 Eligibility for ACA Coverage among People Becoming Uninsured Due to Loss of Employer-Sponsored Insurance, by State Medicaid Expansion Status

Figure 4: January 2021 Eligibility for ACA Coverage among People Becoming Uninsured Due to Loss of Employer-Sponsored Insurance, by State Medicaid Expansion Status

Nearly 7 million people losing ESI and becoming uninsured are children, and the vast majority of them are eligible for coverage through Medicaid or CHIP. Within the 26.8 million people losing ESI and becoming uninsured in May 2020, 6.1 million are children. Because Medicaid/CHIP income eligibility limits for children are generally higher than they are for adults, the vast majority of these children are eligible for Medicaid/CHIP in May 2020 (5.5 million, or 89%) or January 2021 (5.8 million, or 95%).


Given the health risks facing all Americans right now, access to health coverage after loss of employment provides important protection against catastrophic health costs and facilitates access to needed care. Unemployment Insurance filings continue to climb each week, and it is likely that people will continue to lose employment and accompanying ESI for some time, though some of them will return to work as social distancing curbs are loosened. The ACA expanded coverage options available to people, and we estimate that the vast majority of people who lose ESI due to job loss will be eligible for ACA assistance either through Medicaid or subsidized marketplace coverage. However, some people will fall outside the reach of the ACA, particularly in January 2021 when UI benefits cease for many and some adults fall into the Medicaid coverage gap due to state decisions not to expand coverage under the ACA.

Both ACA marketplace subsidies and Medicaid are counter-cyclical programs, expanding during economic downturns as people’s incomes fall. In return for additional federal funding to help states finance their share of Medicaid cost during the public health crisis, states must maintain eligibility standards and procedures that were in effect on January 1, 2020 and must provide continuous eligibility through the end of the public health emergency, among other requirements. These provisions may help eligible individuals enroll in and maintain Medicaid, particularly in light of state and federal actions prior to the crisis to increase eligibility verification requirements or transition people off Medicaid.

Our estimates only examine eligibility among people who lost ESI due to job loss and potentially became uninsured. Additional uninsured individuals—including some of the 9% of the 78 million individuals in families where someone lost employment—may also be eligible for Medicaid or subsidized coverage. It is possible that contact with state UI systems may lead them to seek and enroll in coverage, even if they were eligible for financial assistance before job loss but uninsured.

It is unclear whether people losing ESI and becoming uninsured will enroll in new coverage. We did not estimate take-up or enrollment in coverage options but rather only looked at eligibility for coverage. Even before the coronavirus crisis, there were millions of people eligible for Medicaid or marketplace subsidies who were uninsured. Eligible people may not know about coverage options and may not seek coverage; others may apply for coverage but face challenges in navigating the application and enrollment process. Still others may find marketplace coverage, in particular, unaffordable even with subsidies. As policymakers consider additional efforts to aid people, expanding outreach and enrollment assistance, which have been reduced dramatically by the Trump Administration, could help people maintain coverage as they lose jobs.

This is the first economic downturn during which the ACA will be in place as a safety net for people losing their jobs and health insurance. The Trump Administration is arguing in case before the Supreme Court that the ACA should be overturned; a decision is expected by next Spring. The ACA has gaps, and for many the coverage may be unaffordable. However, without it, many more people would likely end up uninsured as the U.S. heads into a recession.





Trump will urge Supreme Court to strike down Obamacare

Trump will urge Supreme Court to strike down Obamacare - YouTube

Attorney General Bill Barr had urged the White House to soften its attack on the law during the pandemic.

President Donald Trump on Wednesday said his administration will urge the Supreme Court to overturn Obamacare, maintaining its all-out legal assault on the health care law amid a pandemic that will drive millions of more Americans to depend on its coverage.

The administration appears to be doubling down on its legal strategy, even after Attorney General William Barr this week warned top Trump officials about the political ramifications of undermining the health care safety net during the coronavirus emergency.

Democrats two years ago took back the House of Representatives and statehouses across the country by promising to defend Obamacare, in particular its insurance protections that prevent sick people from being denied coverage or charged more because of a health condition. The issue may prove to be even more salient in November amid the Covid-19 outbreak that health experts believe will persist through the fall.

The Justice Department had a Wednesday deadline to change its position in a case brought by Republican-led states, but Trump told reporters Wednesday afternoon his administration would stand firm. DOJ declined to comment.

“Obamacare is a disaster, but we’ve made it barely acceptable,” Trump said.

The Supreme Court later this fall will hear a lawsuit from the GOP-led states that argue the Affordable Care Act was rendered invalid after Congress eliminated its tax penalty for not having health insurance. A coalition of Democratic state attorneys general and the Democratic-led House of Representatives are defending the law in court.

The Trump administration had previously shifted its legal position in this case, but appears to have decided against doing so again. DOJ originally argued the courts should throw out just Obamacare’s preexisting condition protections, before last year urging that the entire law be struck down.

The Supreme Court is expected to hear the case during its next term starting in October, but it hasn’t scheduled arguments yet. A decision is unlikely before the Nov. 3 election. The court has previously upheld Obamacare in two major challenges that threatened the law’s survival.

About 20 million people have been covered by Obamacare, and the law is expected to provide a major safety net during the economic freefall brought on by the coronavirus. Millions more are expected to join the Medicaid rolls, especially in states that joined Obamacare’s expansion to poor adults. Others who lost workplace health insurance can sign up on the law’s health insurance marketplaces, though the Trump administration isn’t doing much to advertise coverage options.

House Democrats in a filing to the Supreme Court on Wednesday said the pandemic showcased why justices should preserve the law.

“Although Congress may not have enacted the ACA with the specific purpose of combatting a pandemic, the nation’s current public-health emergency has made it impossible to deny that broad access to affordable health care is not just a life-or death matter for millions of Americans, but an indispensable precondition to the social intercourse on which our security, welfare, and liberty ultimately depend,” their brief read.

Obamacare has grown more popular since the GOP’s failed repeal bid during Trump’s first year in office, though the law is still broadly disliked by Republicans. Many Democrats are eager to again run on their defense of Obamacare this fall. That includes presumptive presidential nominee Joe Biden, who has advocated for building on the health care law rather than pursuing a comprehensive progressive overhaul like “Medicare for All.”

Top Trump officials have long been split on the legal strategy in the Obamacare lawsuit. Barr and Alex Azar, the Health and Human Services secretary, both opposed a broader attack on the law, but White House officials have been more supportive, seeing it as a chance to fulfill Trump’s pledge to repeal Obamacare. Barr, in a Monday meeting with Vice President Mike Pence and other White House officials, made an eleventh-hour plea for the administration to soften its legal stance ahead of the Supreme Court’s briefing deadline.




Barr urges Trump administration to back off call to fully strike down Obamacare

Barr urges Trump administration to back off call to fully strike ...

Attorney General William Barr made a last-minute push Monday to persuade the administration to modify its position in the Obamacare dispute that will be heard at the Supreme Court this fall, arguing that the administration should pull back from its insistence that the entire law be struck down.

With a Wednesday deadline to make any alterations to its argument looming, Barr made his case in a room with Vice President Mike Pence, White House counsel Pat Cipollone, members of the Domestic Policy Council, press secretary Kayleigh McEnany and several other officials. The meeting ended without a decision and it was not immediately not clear if any shift in the Trump administration’s position will emerge.
Barr and other top advisers have argued against the hard-line position for some time, warning it could have major political implications if the comprehensive health care law appears in jeopardy as voters head to the polls in November.
According to four sources familiar with the meeting, Barr argued for modifying the administration’s current stance to preserve parts of the law, rather than fully back the lawsuit filed by a group of Republican states. As it stands now, the Trump administration’s position seeks to invalidate the entire Affordable Care Act, signed by President Barack Obama in 2010 and commonly known as Obamacare.
Barr and Health and Human Services Secretary Alex Azar have argued against supporting invalidating the law in full, engaging in a heated debate on this point with then-acting White House chief of staff Mick Mulvaney and policy officials allied with him, CNN reported last year. But Barr and others have recently brought an additional dimension to their efforts, highlighting the coronavirus pandemic that has swept the nation. If the justices were to accept the Trump administration position, its decision could cause substantial disruptions to the health care of millions of Americans and cause the uninsured rate to spike.
The Affordable Care Act is expected to serve as an important safety net for the millions of people who lose their jobs and work-based health insurance amid the pandemic. If the unemployment rate hits 15%, nearly 17.7 million Americans could lose their employer-sponsored policies, according to a recent Urban Institute report. More than 8 million people could enroll in Medicaid, particularly in states that expanded the program to more low-income adults under the sweeping health care law. Also, more than 4 million people could obtain coverage through the Affordable Care Act exchanges or other private policies, leaving just over 5 million uninsured, the report found.
Even before the pandemic, more than 11.4 million people signed up for Obamacare coverage for 2020 and roughly 12.5 million were enrolled in Medicaid expansion.
Trump’s domestic policy aides have resisted any change in the Trump administration’s legal arguments at this point, contending that the legal position should move forward without changes because Republicans have campaigned on repealing Obamacare for a decade. Those aides have brushed off the possibility of any new political repercussions, and pushed back on Barr in the meeting Monday.
The Justice Department declined to comment.
The divide has been a long-running battle inside the administration, but it has a new sense of urgency because the administration is up against a deadline on Wednesday if it wants to modify its argument.
The administration currently contends that the individual insurance requirement is unconstitutional, and because that mandate is tied to other provisions of the law, the entire Affordable Care Act must fall. If the administration is going to back off that absolute position, it would likely submit a filing to the Supreme Court within the next 48 hours, based on the court’s current briefing schedule for the dueling parties. Otherwise, the administration’s brief would not be due to the high court until June.
Barr has long favored tempering the administration’s position, which has shifted multiple times since the lawsuit began in early 2018. The administration argued that only two key provisions that protect Americans with pre-existing conditions should fall, but the rest of the law could remain. In a dramatic reversal soon after Barr became attorney general in early 2019, the Justice Department said the entire Affordable Care Act should be invalidated. Several months later, the administration argued before a federal appeals court that the law should only be struck as it applies to the coalition of Republican-led states that brought the challenge.
The argument that the entire law should be struck down already might have been a tough one to make to a Supreme Court majority that has twice rejected broad-scale challenges.
After a decade, the Affordable Care Act has affected nearly every aspect of the health care system. It required all Americans obtain coverage and created a marketplace for purchasing insurance. It also expanded Medicaid for poor people and protected diabetics, cancer patients and other individuals with pre-existing conditions from being denied coverage or charged higher premiums.
The current Supreme Court dispute began when Texas and other Republican-led states sued after the Republican-led Congress in 2017 cut the tax penalty for those who failed to obtain insurance to zero. Because the individual mandate is no longer tied to a specific tax penalty, the states argue, it is unconstitutional. They also say that because the individual mandate is intertwined with a multitude of ACA provisions, invalidating it should bring down the entire law, including protections for people with preexisting conditions.
On the other side are California and other Democratic-led states and the now Democratic-controlled US House of Representatives. The Affordable Care Act has remained in effect through the litigation.
The Supreme Court agreed earlier this year to take up the ACA dispute. The case is likely to be heard in the fall, but a decision would not be expected until 2021, after the November presidential election.
The case will mark the third time that the Supreme Court takes up a major ACA dispute. In 2012, the justices upheld the law, by a 5-4 vote, with Chief Justice John Roberts casting the deciding vote with the four liberal justices over the dissent of four conservatives. Roberts grounded his opinion in Congress’ taxing power.




How the Trump administration accidentally insured over 200,000 through Obamacare

Silver-Loading Means 28% Uninsured Can Get $0 Premium Bronze Plan

With an eye on replacing the Affordable Care Act, the Trump administration took one particularly critical action in October 2017. It discontinued cost-sharing reduction subsidy payments to health insurers participating in the ACA marketplaces.

But the response to those cuts was likely not what President Trump expected. State insurance commissioners and insurers used them to make marketplace health plans more affordable.

Premium decreases were large – so large that 4.2 million potential enrollees had the option to purchase a marketplace plan for free in 2019.

These changes made us wonder: Did President Trump’s effort to sabotage the Affordable Care Act backfire? I’m a health economist at the University of Pittsburgh. Along with my colleague David Anderson, a policy expert on the Affordable Care Act, we tried to answer that question shortly after the payment cuts. We discovered that more than 200,000 people, using the platform in 2019, gained insurance in 37 states due to the Trump administration’s actions. This finding may even be more important now as massive unemployment from the coronavirus pandemic leads to huge losses of employer-based insurance coverage – and ultimately more people enrolling in the marketplaces.

Subsidies and silver loading

People who sign up for a plan in the Health Insurance Marketplaces may qualify for two types of subsidies. The first type is the advanced premium tax credit, which reduces the premium paid by the enrollee; lower-income enrollees receive larger premium tax credits. The second type is the cost-sharing reduction subsidy, which decrease deductibles and co-pays.

Premium tax credits may be applied to any marketplace plan, though they’re based on silver plan premiums, which cover 70% of an average enrollee’s health care expenses. Cost-sharing reduction subsidies can only be applied to silver plans; that means qualifying enrollees in less generous bronze plans and more generous gold plans don’t benefit from reduced deductibles and co-pays provided by these subsidies.

When Trump ended those payments, marketplace insurers were suddenly in a bind. They are legally required to provide cost-sharing reduction subsidies to enrollees whether or not the federal government was paying. The expectation: marketplace insurers, forced to make up the lost revenue, would either increase premiums or exit the marketplaces altogether. And Obamacare would implode.

But that’s not what happened. Why did the plans become more affordable? Insurers increased only the premiums of their silver plans. That approach – known as silver loading – did two things. First, the cost of silver plan premiums rose drastically. Second, premium tax credits increased along with premiums. So those enrollees receiving premium tax credits saw no increase in the premiums of their silver plans.

At the same time, non-silver plans became cheaper. Many bronze plans, already costing less, became so cheap they were free after applying premium tax credit subsidies. Lower-income enrollees benefited the most.

The silver lining in silver loading

In 2019, 4.2 million enrollees could enter the marketplace for free through a zero-dollar bronze plan, largely due to silver loading. Without those zero-premium plans, our analysis showed more than 200,000 lower-income marketplace enrollees would have gone uninsured.

Another 60,000 would have gained insurance had California and New Jersey eliminated regulations that prohibited zero premium plans — and if Indiana, Mississippi and West Virginia had adopted silver loading. Many more likely got coverage in states not included in our study.

All this is clearly not what the Trump administration had in mind when it cut subsidy payments. Other changes to the marketplaces probably masked some coverage gains that occurred. Notably, cuts in the public outreach for, along with the elimination of the individual mandate, decreased enrollment. But the popularity of zero premium plans resulting from silver loading likely stopped much of the damage – and Trump’s attempt to destabilize the marketplaces.

Increasing health coverage post-2020

Now states can take advantage of the attractiveness of zero premium plans to increase health coverage through the marketplaces. One way: States requiring marketplace insurers to provide extra benefits – again, like California and New Jersey – can pick up the small tab for those extras. For example, California enrollees pay for abortion coverage through a one-dollar monthly premium surcharge. This is not covered by premium tax credits. By shifting premiums from even one dollar to zero dollars, our estimates indicate enrollment would increase by approximately 13% among those with lower incomes.

Another way: States without silver loading should adopt it. This is not a partisan issue. Conservative states – or at least, GOP-controlled states like Alabama, Wyoming and Florida – have silver-loaded. State governments pay nothing, revenue for insurers is increased, and most critically, lower-income Americans are provided with affordable health insurance. Put simply, there’s no downside for states.

The Trump administration is prevented from restricting silver loading through 2021. However, a forthcoming Supreme Court case, Texas v. Azar, may yet repeal the entire ACA. If the court’s conservative majority rules in favor of the GOP plaintiffs, they will put affordable health insurance out of reach for the 11.4 million Americans that purchased health insurance in the marketplaces. They will also eliminate Medicaid coverage for an additional 16.9 million Americans.

If the case succeeds, the uninsured rate could easily surpass levels not seen since the height of the Great Recession. And for millions of Americans, access to health insurance – desperately needed, particularly during the COVID-19 pandemic – will be eliminated.




U.S. Supreme Court sides with insurers in battle over risk corridor payments

Supreme Court seems to side with insurers in ACA risk corridor ...

The Supreme Court sided with insurers in a years-long battle over billions in payments promised under the Affordable Care Act.

The nation’s highest court ruled (PDF) 8-1 on Monday that the ACA’s risk corridor program created an obligation for the federal government to pay health plans promised funds.

The insurers suing for damages sought $12 billion in unpaid funds from the program.

The ACA established the risk corridors to encourage health plans to participate in the exchanges. If an insurer earned massive profits through the individual market, the government would claim some of those funds and pay it out to insurers that are performing poorly.

The government did collect those funds, but did not pay out money to struggling insurers. The risk corridor program closed in 2016 after three years.

The justices argued that the government was compelled to make the payments.

“The plain terms of the risk corridors provision created an obligation neither contingent on nor limited by the availability of appropriations or other funds,” the court argued.

Justice Samuel Alito was the lone dissent in the case.

The justices also disputed the government’s argument that Congress implied a repeal of the risk corridors through appropriations riders. The justices said that any riders did not actually change the payment methodology or suggest the payments were not required.

The court also argued that the health plans had standing to sue under the Tucker Act.

“Petitioners clear each hurdle: The risk corridors statute is fairly interpreted as mandating compensation for damages, and neither exception to the Tucker Act applies,” the court said.

In his dissent, Alito blasts the opinion as a bailout for health plans.

America’s Health Insurance Plans CEO Matt Eyles praised the ruling in a statement.

“The federal government made a clear commitment in the interest of building stable markets and making coverage more affordable for individuals and small employers,” Eyles said. “Health insurance providers kept their commitments while incurring substantial losses.”

Today’s decision, as the Supreme Court observes, reflects ‘a principle as old as the Nation itself: The Government should honor its obligations,’” he added. “We appreciate that today’s Supreme Court 8-1 decision ensures that the federal government honors the obligations it made for services the private sector already delivered.”


Pandemic spurs court fights over mail-in voting

Pandemic spurs court fights over mail-in voting | TheHill

Election officials are scrambling ahead of the November vote to ramp up alternative methods like mail-in voting as the coronavirus pandemic raises concerns about the safety of in-person voting.

That dash to expand polling options could bring a new wave of court fights around the 2020 election, legal experts say. As states move to bolster balloting options — or face challenges to such plans — both sides in the debate are likely to take those decisions to court.

And when Election Day arrives, questions over the handling of mail-in ballots could lead to more court fights.

“We do not want the election resolved in the courts and so I hope it does not come to that,” said Richard Pildes, a law professor at New York University.

Legal experts say the nightmare scenario would be a situation resembling the Supreme Court’s decision on Bush v. Gore, which was seen as an ideological one that undermined both the legitimacy of the court and the 2000 presidential election results among critics of the decision.

“We know that the current partisan divide over the legitimacy of the U.S. Supreme Court can be timed to the release of the Bush v. Gore decision,” said Charles Stewart, a political science professor and election expert at MIT. “So, we have to be worried both about the legitimacy of the result and the legitimacy of the courts.”

States are hoping to avoid the situation Wisconsin faced this week where widespread in-person voting took place, despite last-minute efforts to avoid that outcome amid a virus that had infected some 2,500 and killed nearly 80 in the state by the Tuesday vote.

“There’s nonstop work being done by election officials to plan for November,” Stewart said.

The hope is that the pandemic will have abated enough to allow for in-person voting, which could be done more safely if early voting is expanded to reduce crowding on Voting Day. But given the fears over inciting a second wave of infections, that may not be advisable by the fall.

All states allow at least some mail-in balloting for select voters. While some states have relatively expansive mail voting systems, others have few provisions.

The fight over expanding voting options has already sparked legal battles. Texas is one of the states that has cases pending in court over efforts to expand mail-in balloting.

Under the current state election rules in Texas, only voters with a “qualifying reason” — advanced age, disability, incarceration or planned travel — can mail in ballots, despite public health guidance to avoid public gatherings. But a lawsuit filed by Texas Democrats ahead of the July primary runoff seeks to have that criteria expanded by including social distancing as a qualifying disability.

Progress toward developing a voting failsafe by November is likely to be uneven among the states given that not all are beginning from the same starting point, and because the push has increasingly become riven by partisan politics.

States that have a head start will be better off, though, experts said.

“States that already have a well-developed vote-by-mail program may well have the capacity to supersize it, and states that don’t may well have the capacity to provide some incremental vote-by-mail capacity,” said Justin Levitt, a professor at Loyola Law School.

“But it will be a herculean task for a state without much vote-by-mail capacity to get to almost everyone voting by mail by November. That takes expertise and systems, equipment and personnel, and the capacity to print a lot more ballots. And it is not easy to get any of those quickly.”

Lorraine Minnite, a political science professor at Rutgers University-Camden, put it even more starkly.

“A large-scale change in procedure hastily administered will likely not run smoothly even under the best of conditions,” she said.

Experts warn that expanded mail-in voting could lead to more voter errors and omissions, create more opportunities for fraud or coercion, and pose special challenges for those who move frequently or lack a permanent address. 

Edward Foley, a law professor at Ohio State University, said that if states are too slow to mail out ballots, litigation could arise from those issues.

“The most likely problem to trigger litigation would be if voters request absentee ballots on time, but election officials because they are overwhelmed with the high volume of absentee ballot requests fail to send the ballots to voters in time for voters to return them by the legally specified deadline,” Foley said.

“This, then, creates a problem of wrongful disenfranchisement of eligible voters, through no fault of the voters but because of the government’s own problems, and requires a court to come up with an appropriate remedy,” he added.

Rick Hasen, a professor of law and political science at the University of California Irvine, said that more courts may be drawn into a battle similar to the one playing out in Texas over whether voting by mail should require a valid excuse.

“There are a number of issues courts may address related to the vote by mail and the coronavirus,” he said. “Do states have to expand ballot deadlines to deal with a flood of absentee ballots? Do voters have a right to be told their absentee ballots have been rejected and given the opportunity to ‘cure’ a problem for rejecting a ballot like a purported signature mismatch?”

According to Levitt, one common thread among states is the urgent need for money to ramp up mail-in operations.

“The single most important piece is funding,” he said. “There are a lot of logistics between here and there, including space and machinery and people to process mail ballots, and that takes money.”  

The more than $2 trillion coronavirus stimulus package included $400 million for states to expand early voting, election by mail and for other election matters.

“The recent funding from Congress is an extremely welcome start, but only barely a start,” he added. “There needs to be much more, and quickly: it does little good to get more funding for this in October.”