Montana health plan strikes victory over cost-sharing reduction payments

https://www.healthcarefinancenews.com/news/montana-health-plan-strikes-victory-over-cost-sharing-reduction-payments?mkt_tok=eyJpIjoiTWpNM05qYzVPR1k0TldKbCIsInQiOiJTd2RzaU9sS1FuKzBOaVF3RXp5RkNqc3plbXp0NFlhdkk1MFlSNGY1NUJKa2NHd3IrXC9OdlJoSW1EQ2FIM3hkVkVzZ2FuaUhkcTNXcUtNczhNQWI2NFd1ckNCOHViSzdFbjRUS2xGMTdrXC90M1BjbCtRcVVnbkxweFwvdlY5VnZGViJ9

Montana Health Co-Op. Credit: Google Street View

The insurer says it is owed $5 million in payments mandated under the Affordable Care Act.

Health insurers in the Affordable Care Act market got a major win Tuesday when the Montana Health Co-op became the first plan to win its case for cost-sharing reduction payments.

Montana Health Co-op said it is owed an estimated $5 million in CSRs for 2017.

United States Court of Federal Claims Judge Elaine Kaplan said it didn’t matter that Congress never appropriated the funds, as argued by the Department of Justice. Kaplan sided with the Montana Health Co-op that said the Affordable Care Act created the mandatory obligation whether Congress approved the funds or not.

Judge Kaplan directed the parties to file a joint status report on or before October 4.

CSRs were set up under the ACA to allow insurers to pay the deductibles and other out-of-pocket costs for lower-income consumers.

The Department of Health and Human Services began making the CSR payments in 2014.

In that same year, Republicans in the House of Representatives sued the Obama Administration over the payments, saying they and others in Congress had never approved the funds. They won and an appeal was brought, but under President Donald Trump, the appeal became moot.

In 2017, Attorney General Jeff Sessions issued an opinion that the funds were never appropriated and the government stopped the payments.

While insurers no longer received the funds, they were still mandated under the ACA to offer to qualifying consumers the benefit of lower out-of-pocket costs.

Several insurers filed lawsuits, including Blue Cross Blue Shield of Vermont, Maine Community Health Options, LA Care Health Plan and Sanford Health Plan, according to Health Affairs. Common Ground Healthcare Cooperative led a class action lawsuit.

Insurers have also filed lawsuits to get payments promised through another ACA program, risk corridors. Under the three-year, budget neutral risk corridors program, the government was to take money from plans that had fewer higher risk beneficiaries and give the  funds to those that suffered losses in insuring higher risk consumers.

In making her decision Tuesday, Judge Kaplan cited a lawsuit brought by Moda Health Plan over risk corridor payments. In that case, the Federal Circuit Court said the government was obligated to make risk corridor payments to insurers.

But that case was overturned in mid-June, when a majority of a three-judge panel of the Court of Appeals for the Federal Circuit said the government did not have to pay health insurers the full amount owed to them in risk corridors payments.

 

 

Health Insurance Premiums Are Stabilizing

http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2018/08/16/health-insurance-premiums-are-stabilizing-despite-gop-attacks

Stateline Aug16

 

Despite Republican efforts to undermine the Affordable Care Act, insurance premiums will go up only slightly in most states where carriers have submitted proposed prices for next year. And insurance carriers are entering markets rather than fleeing them.

The improvements stem from less political uncertainty over health policy, steeper than necessary increases this year, better understanding of the markets, improvements in care and a host of actions taken by individual states.

Average proposed premiums for all levels of plans in California, Colorado, Delaware, Florida, Indiana, Nevada, Ohio and Pennsylvania will increase less than 9 percent in 2019, according to the Kaiser Family Foundation.

By contrast, this year’s mid-priced plans increased an average of 37 percent nationally compared to 2017.

In some states, 2019 premiums are projected to decrease. Prices also are expected to drop for people in a number of metropolitan areas, including Atlanta, Baltimore, Denver, New York and Washington, D.C.

And unless the Trump administration launches new attacks on the Affordable Care Act in the coming months, analysts believe the average increase across the United States will hold to the single digits.

To be sure, not all areas will fare as well. Some can still expect to see big increases next year, according to the Kaiser Family Foundation. For instance, proposed premium increases in Maryland average 30 percent for 2019.

(In some states, carriers have not yet had to file their rate proposals for 2019, but will in the coming weeks.)

But after a couple years in which carriers fled many markets around the country, insurers are planning to enter exchanges in many states, including Arizona, Florida, Michigan, New Mexico and Wisconsin. In some states, existing insurers are pushing into new areas.

“That they are entering markets is a sign that the insurers are pretty confident about those markets,” said Rabah Kamal, who analyzes health reform and health insurance for Kaiser.

“After several years of big losses, insurers are actually turning a profit,” said Kamal. “They’re doing well, so overall, there’s no justification for big increases.”

To a large extent, premiums in 2019 appear to be moderating because carriers raised rates higher than necessary in 2018 in reaction to the uncertainty over how Congress and the Trump administration might undermine the ACA. “It boils down to the fact that last year’s rates were too high,” said Emily Curran, a research fellow at Georgetown University’s Health Policy Institute.

Carriers also understand the marketplace much better than they did in 2014 when the exchanges were launched across the country, Curran and others say. Carriers have a better sense of who they are covering and how to predict their health risks, Curran said. Insurers and medical providers also have better coordinated care to reduce duplication.

State Roles

States also have had a major hand in stabilizing their markets, seeking to limit the damage the federal government is doing to the ACA.

Massachusetts had its own individual mandate before the ACA, and now New Jersey does as well. Three states, Massachusetts, New Jersey and New York, have passed outright bans on issuing short-term health insurance policies, while 12 others have adopted standards more restrictive than federal policy. Some states, including Alaska, Minnesota and Oregon, have also created state-funded reinsurance pools, which protect carriers from financially crippling individual medical claims.

Finally, a number of states have done their own outreach to publicize their exchanges and promote enrollment in the absence of federal efforts.

Pennsylvania is one of those states. The insurance market has stabilized there, said Jessica Altman, the state’s insurance commissioner. She projects the average state premium increase in 2019 will amount to 0.7 percent, compared to 30.6 percent this year. She said in 31 of 67 Pennsylvania counties, there will be more carriers selling policies next year compared to 2018. And, she said, many carriers are pushing into new territories.

Her agency estimates that the increase this year would have been only 7.6 percent absent the federal government’s elimination of cost-sharing reductions, which were federal payments to insurance carriers to cushion them from exorbitant individual medical claims.

“We had pretty significant increases last year, and we shouldn’t have,” Altman said.

Julie Mix McPeak, commissioner of the Department of Commerce and Insurance in Tennessee, where premiums are expected to fall and more carriers are intending to operate, said the ACA brought more than 200,000 Tennesseans into health plans — many of whom previously had not sought routine health care — which meant higher claims in the first years.

“We had a pretty negative health score in terms of dollars spent on claims because so many people coming into primary care had health issues that needed to be addressed. Now that they’ve been in care for several years now, we aren’t seeing those claims rising any more. They are leveling off.”

Whether the stability that appears to be settling the markets in 2019 will continue beyond that largely depends on what Washington does. “No one,” said Curran, “wants to see more uncertainty.”

Undermining the ACA

A Brookings Institution study released this month estimated that insurers on the health insurance market this year will enjoy an underwriting profit margin of 10.5 percent, up from 1.2 percent last year.

The study estimated that, absent federal policies disrupting the marketplaces, premiums would have dropped 4.3 percent nationwide in 2019.

Many health care analysts agree. “In cases where we are seeing modest increases, we might have seen decreases,” said Myra Simon, executive director of individual market policy for America’s Health Insurance Plans, a lobbying arm of the health insurance industry.

Steps taken by Republicans in Washington to undermine the exchanges include Congress’ repeal starting next year of the individual mandate, which requires all Americans to obtain health insurance, and the Trump administration’s decision to end the Obama-era cost-sharing reduction payments.

The administration also eliminated most funds for outreach to encourage enrollment in the markets and shortened the periods during which people could sign up for plans. In addition, the administration has moved forward with plans to loosen regulation on association and short-term health plans that don’t have to be as comprehensive as plans sold under the Affordable Care Act.

Health insurance analysts of all stripes had said those actions would draw people away from the insurance exchanges, particularly the young and healthy. Their departure, analysts said, could drive up premiums for all those remaining and set the markets on a “death spiral” that would ultimately drive all carriers from the exchanges.

The president has been clear about his intentions. “Essentially, we are getting rid of Obamacare,” he said in April.

But as carriers file their plans with state insurance offices for next year, it appears that warnings of imminent catastrophe were, at the least, premature.

“The administration has done almost everything on its list to destabilize the market or, in their words, ‘create more choice,’” said Chris Sloan, a director at Avalere Health, a Washington-based health policy research and consulting firm. “They’ve done it all and the market is still standing.”

 

 

 

Molina still considering returning to Obamacare in Utah and Wisconsin

https://www.washingtonexaminer.com/policy/healthcare/molina-still-considering-returning-to-obamacare-in-utah-and-wisconsin

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Health insurer Molina is considering providing Obamacare plans in Wisconsin and Utah for 2019, after taking a one-year hiatus from these states, company executives said in an earnings call Wednesday.

Molina left these states for 2018 after suffering $230 million in overall losses and undertaking 1,500 planned layoffs. Company executives said in April that they would consider re-entering the market, and on Wednesday they said they were still evaluating how the plans are performing in the states where they still have Obamacare customers.

“I’m inclined to say that we would re-enter, but we have until the end of the summer to decide,” said Joseph Zubretsky, the company’s CEO.

Roughly 409,000 people are still enrolled in Molina’s Obamacare plans, and premiums for these customers increased by an average of 55 percent from 2017 to 2018, though many of them received subsidies from the federal government to cover the cost.

Zubretsky said that the current prices on their plans were “no longer corrective” but were priced about right in order to cover medical claims. Molina has customers on Obamacare plans in California, Florida, New Mexico, Michigan, Ohio, and Texas. It also has plans in Washington state but scaled back its participation by reducing the number of counties in which it offered plans.

“The strategy was to maintain [enrollment] and grow profits,” Zubretsky said of 2018, adding that re-entering Utah or Wisconsin would likely increase growth in enrollment for 2019.

Molina scaled back during a time of uncertainty, when President Trump had not yet announced he would be cutting off payments to insurers known as cost-sharing reduction subsidies, which under Obamacare help insurers offer lower out-of-pocket prices to their low-income customers. Though the payments were ended, many insurers have restructured their plans to make up for the loss by raising premiums, a move that shifts more expenses to the federal government and offers cheaper prices to Obamacare customers who get subsidies.

Early filings show that Obamacare customers will have more options for coverage in 2019, largely because of this strategy employed by insurers.

Molina’s overall performance is improving. Net income for the second quarter of 2018 was $202 million, compared with a net loss of $230 million for the second quarter of 2017. The company’s business focuses on managed care plans in Medicare and Medicaid.

Though Molina is a relatively small insurer, it drew headlines for enthusiastically embracing Obamacare. The company’s former chief executive, J. Mario Molina, was a major industry supporter of Obamacare and he has been a vocal critic of Republican efforts to repeal and replace the law. He and his brother, former Chief Financial Officer John Molina, were fired from their positions in May 2018 after poor first-quarter financial results.

 

Stabilizing and strengthening the individual health insurance market

https://www.brookings.edu/research/stabilizing-and-strengthening-the-individual-health-insurance-market/?utm_campaign=Economic%20Studies&utm_source=hs_email&utm_medium=email&utm_content=64960143

Image result for Stabilizing and strengthening the individual health insurance market

Stability has long been an issue for the individual health insurance market, even before the Affordable Care Act. While reforms adopted under the ACA initially succeeded in addressing some of these market issues, market conditions substantially worsened in 2016.

Insurers exited the individual market, both on and off the subsidized exchanges, leaving many areas with only a single insurer, and threatening to leave some areas (mostly rural) with no insurer on the exchange. Most insurers suffered significant losses in the individual market the first three years under the ACA, leading to very substantial increases in premiums a couple of years in a row.

For a time, it appeared that rate increases in 2016 and 2017 would be sufficient to stabilize the market by returning insurers to profitability, which would bring future increases in line with normal medical cost trends. However, Congress’s decision to repeal the individual mandate and the Trump Administration’s decision to halt “cost-sharing reduction” payments to insurers, along with other measures that were seen as destabilizing, created substantial new uncertainty for market conditions in 2018.

This uncertainty continues into 2019, owing both to lack of clarity on the actual effects of last year’s statutory and regulatory changes, and to pending regulatory changes that would expand the availability of “non-compliant” plans sold outside of the ACA-regulated market. These uncertainties further complicate insurers’ decisions about whether to remain in the individual market and how much to increase premiums.

In “Stabilizing and strengthening the individual health insurance market: A view from ten states” (PDF), Mark Hall examines the causes of instability in the individual market and identifies measures to help improve stability based off of interviews with key stakeholders in 10 states.

The condition of the individual market

In the states studied—Alaska, Arizona, Colorado, Florida, Iowa, Maine, Minnesota, Nevada, Ohio, and Texas—opinions about market stability vary widely across states and stakeholders.

While enrollment has remained remarkably strong in the ACA’s subsidized exchanges, enrollment by people not receiving subsidies has dropped sharply.

States that operate their own exchanges have had somewhat stronger enrollment (both on and off the exchanges), and lower premiums, than states using the federal exchange.

A core of insurers remain committed to the individual market because enrollment remains substantial, and most insurers have been able to increase prices enough to become profitable. Some insurers that previously left or stayed out of markets now appear to be (re)entering.

Political uncertainty

Premiums have increased sharply over the past two to three years, initially because insurers had underpriced relative to the actual claims costs that ACA enrollees generated. However, political uncertainty in recent years caused some insurers to leave the market and those who stayed raised their rates.

Insurers were able to cope with the Trump administration’s halt to CSR payments by increasing their rates for 2018 while the dominant view in most states is that the adverse effects of the repeal of the individual mandate will be less than originally thought. Even if the mandate is not essential, many subjects viewed it as helpful to market stability. Thus, there is some interest in replacing the federal mandate with alternative measures.

Because most insurers have become profitable in the individual market, future rate increases are likely to be closer to general medical cost trends (which are in the single digits). But this moderation may not hold if additional adverse regulatory or policy changes are made, and some such changes have been recently announced.

Many subjects viewed reinsurance as potentially helpful to market conditions, but only modestly so because funding levels typically proposed produce just a one-time lessening of rate increases in the range of 10-20 percent. Some subjects thought that a better use of additional funding would be to expand the range of people who are eligible for premium subsidies.Actions to restore stability

Concerns were expressed about coverage options that do not comply with ACA regulations, such as sharing ministries, association health plans, and short-term plans. However, some thought this outweighed harms to the ACA-compliant market; thus, there was some support for allowing separate markets (ACA and non-ACA) to develop, especially in states where unsubsidized prices are already particularly high.

Other federal measures, such as tightening up special enrollment, more flexibility in covered benefits, and lower medical loss ratios, were not seen as having a notable effect on market stability.

Measures that states might consider (in addition to those noted above) include: Medicaid buy-in as a “public option”; assessing non-complying plans to fund expanded ACA subsidies; investing more in marketing and outreach; “auto-enrollment” in “zero premium” Bronze plans; and allowing insurers to make mid-year rate corrections to account for major new regulatory changes.

Conclusion

The ACA’s individual market is in generally the same shape now as it was at the end of 2016. Prices are high and insurer participation is down, but these conditions are not fundamentally worse than they were at the end of the Obama administration. For a variety of reasons, the ACA’s core market has withstood remarkably well the various body blows it absorbed during 2017, including repeal of the individual mandate, and halting payments to insurers for reduced cost sharing by low-income subscribers.

The measures currently available to states are unlikely, however, to improve the individual market to the extent that is needed. Although the ACA market is likely to survive in its basic current form, the future health of the market—especially for unsubsidized people—depends on the willingness and ability of federal lawmakers to muster the political determination to make substantial improvements.

Read the full paper here

 

 

How Would Individual Market Premiums Change in 2019 in a Stable Policy Environment?

https://www.brookings.edu/wp-content/uploads/2018/08/Individual-Market-Premium-Outlook-20191.pdf

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Introduction

In recent weeks, insurers in many areas of the country have unveiled the premiums they propose to
charge for individual market health insurance policies in 2019. In setting premiums for 2019, insurers
are taking account of several policy changes that will be newly in effect for the 2019 plan year, including
repeal of the individual mandate penalty and Trump Administration actions to expand the availability
of plans that are exempt from various Affordable Care Act (ACA) requirements. These policy changes
are generally expected to cause many healthier people to leave the individual market and thereby raise
individual market premiums (e.g., CBO 2018a; Blumberg, Buettgens, and Wang 2018).

This analysis examines how premiums might have changed in 2019 in a stable policy environment. To
do so, I first estimate insurers’ revenues and costs in the ACA-compliant individual market through
2018, drawing primarily on insurers’ reports to state and federal regulators. With these estimates as a
starting point, I then estimate how premiums would have changed in 2019 under various assumptions
about how insurers’ costs and margins would have evolved in 2019 without the major pending policy
changes. This analysis reaches two main conclusions:

 Insurers will earn large profits in the ACA-compliant individual market in 2018:
I project that insurers’ revenues in the ACA-compliant individual market will far exceed their
costs in 2018, generating a positive underwriting margin of 10.5 percent of premium revenue.
This is up from a modest positive margin of 1.2 percent of premium revenue in 2017 and
contrasts sharply with the substantial losses insurers incurred in the ACA-compliant market
in 2014, 2015, and 2016. The estimated 2018 margin also far exceeds insurers’ margins in the
pre-ACA individual market. These estimates for 2018 as a whole are broadly consistent with
estimates for the first quarter of 2018 derived from insurers’ first quarter financial filings by
researchers at the Kaiser Family Foundation (Semanskee, Cox, and Levitt 2018).

The estimated improvement in insurers’ margins for 2018 is driven by the substantial
premium increases insurers implemented for 2018, which will almost certainly be more than
sufficient to offset the loss of cost-sharing reduction (CSR) payments and what appears likely
to be another year of moderate growth in underlying claims spending. Prior analysis of
insurers’ 2018 rate filings suggests that many insurers expected policy changes that are now
scheduled to take effect in 2019, notably repeal of the individual mandate penalty, to take effect
in some form during 2018 (Kamal et al. 2017). This may have led insurers to incorporate those
policy changes into their premiums a year early.

 In a stable policy environment, average premiums for ACA-compliant plans
would likely fall in 2019: In this analysis, I define a stable policy environment as one in
which the federal policies toward the individual market in effect for 2018 remain in effect for
3
2019. Notably, this scenario assumes that the individual mandate remains in effect for 2019,
but also assumes that policies implemented prior to 2018, like the end of CSR payments,
remain in effect as well. Under those circumstances, insurers’ costs would rise only moderately
in 2019, primarily reflecting normal growth in medical costs. Meanwhile, for reasons I discuss
in detail in the main text, it is unlikely that insurers would set 2019 premiums with the goal of
keeping margins at their unusually high 2018 level. Downward pressure on premiums from
falling margins would likely more than offset upward pressure on premiums from underlying
cost pressures, so premiums would fall on net.

Indeed, under my base assumptions, I estimate that the nationwide average per member per
month premium in the individual market would fall by 4.3 percent in 2019 in a stable policy
environment. This estimate is subject to some uncertainty, primarily because of uncertainty
about underlying individual market claims trends and about the margins insurers are likely to
target for 2019. However, I estimate that average premiums would have declined in a stable
policy environment under a range of plausible alternative assumptions.

The remainder of this analysis proceeds as follows. The first section provides an overview of my
methodology for estimating insurers’ revenues and costs through 2018, and the second section
presents the resulting estimates. The final section examines what these estimates imply for premium
changes in 2019 in a stable policy environment. A pair of appendices provide additional detail.

 

 

Kavanaugh Supreme Court Fight Will Be All About Health Care

https://www.thefiscaltimes.com/2018/07/10/Kavanaugh-Supreme-Court-Fight-Will-Be-All-About-Health-Care

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he fight over President Trump’s pick of Appeals Court Judge Brett Kavanaugh to the Supreme Court is on, with Democrats launching what The Washington Post called “an all-out blitz” to defeat the nomination.

So get ready to hear a lot about health care in the coming days.

The Washington Post’s Dana Milbank notes that former Republican senator Jon Kyl, now a lobbyist for the pharmaceuticals industry, has been tapped to guide Kavanaugh’s path through the Senate. Why? Because by picking Kavanaugh, “Trump has guaranteed that health care will be at the center of the confirmation fight,” Milbank says.

Democrats welcome that fight, even if they have little chance of actually blocking the nomination. “The liberal base is fired up about abortion rights, but Senate Democratic Leader Charles Schumer (N.Y.) will seek to emphasize access to affordable health care as much as Roe v. Wade in the battle over the Supreme Court,” The Hill’s Alexander Bolton reports.

Focusing on health care might make sense for Democrats in a number of ways:

  • It reinforces the party’s preferred midterm election messaging in an area where voters say they trust Democrats more than Republicans.
  • Framing women’s reproductive rights as a matter of access to health care will be less polarizing in red states where seats are at stake in November, Bolton writes.
  • Playing up access to affordable health care may also put more pressure on Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, both of whom voted against Obamacare repeal last year.

If confirmed, Kavanaugh may get to weigh in on any of a number of cases with the potential to reshape health policy well beyond abortion rights. Despite his long legal record, “many of his health-related decisions are open to parsing from either side of the aisle and don’t actually provide a clear insight into where he’d stand on the Supreme Court,” The Washington Post’s Colby Itkowitz says.

Here are some key issues and cases that could be decided by the Supreme Court and Kavanaugh:

Obamacare’s protections for people with pre-existing medical conditions: Americans overwhelmingly support keeping these protections in place, according to a Kaiser Family Foundation poll from last month, but Trump’s Justice Department has asked a federal court to rule that those provisions of Obamacare are invalid. The case will soon be heard in a district court in Texas and could make its way to the Supreme Court before long. Sen. Joe Manchin of West Virginia, one of the few Democrats who might back Kavanaugh, said in a statement that he wants to hear where the judge stands on the ACA protections for those with pre-existing conditions before deciding whether to confirm him.

Medicaid: A federal court late last month blocked Kentucky’s plan to introduce work requirements for Medicaid recipients. The Trump administration is likely to appeal the ruling. Other states are also implementing work requirements. “As more states experiment with these programs and the cases wind their way through the courts, the Supreme Court may weigh in and shape how low-income Americans access Medicaid across the country,” Arielle Kane, director of health care at the Progressive Policy Institute, writes at the New York Daily News. The high court could also be asked to consider whether private health care providers can sue over Medicaid reimbursement rates, a question that could open the door to state funding cuts.

Risk adjustment payments to insurers: The Trump administration just froze billions of dollars of payments to insurers who enroll costlier-than-expected patients. The payments come from money collected from other insurers in the individual market. Legal challenges involving these payments are making their way through the courts. In the meantime, “the insurers in the individual market must manage uncertainty and constant change — resulting in higher prices for health care consumers,” Kane writes.

Industry consolidation: “Last year, four of the largest insurers tried, and failed, to merge into two. This year, CVS has proposed merging with Aetna, Amazon has acquired PillPack, and Walmart is seeking to combine with Humana,” Kane writes. “This so called ‘vertical integration’ raises questions about monopolies, competition and health-care pricing. It is likely that at some point courts will weigh in.”

 

 

Federal appeals court says HHS doesn’t have to make ACA risk corridor payments

https://www.fiercehealthcare.com/payer/moda-health-risk-corridor-payments-us-court-appeals-hhs-aca?mkt_tok=eyJpIjoiTkRBMk5UWXpOemhpT1RsaCIsInQiOiIzbWdsem9qRzZ0RDJPb0pTR1pRVVA1NjgzcmNZd1dnMzNoNWh0N2xVMlwvZXlMN0EyenFKVVFEUU9ZRFFRZXZYMm9acFVcL0creEt5TWpxY3V1aUE2b2tvZU1QcHNBSHFHN1VrUEswYVkxckRoMEh6clhFZ0lsQ3lvR2RzTm5cLzdodiJ9&mrkid=959610

Legal Review

A federal appeals court ruled the federal government does not have to make risk corridor payments, dealing a blow to insurers that claim they are owed billions in payments under the Affordable Care Act.

In a closely watched case brought by Moda Health Plans, the three-judge panel for the United States Court of Appeals for the Federal Circuit reversed a decision by the Court of Federal Claims, ruling that the Department of Health and Human Services is not obligated to make risk corridor payments to insurers under the ACA.

The payments were built into the ACA as a way to protect insurers from extreme gains or losses on the ACA exchanges in a market that was still untested by insurers.

“Although section 1342 obligated the government to pay participants in the exchanges the full amount indicated by the formula for risk corridor payments, we hold that Congress suspended the government’s obligation in each year of the program through clear intent manifested in appropriations riders,” wrote Chief Judge Sharon Proust in the decision (PDF). “We also hold that the circumstances of this legislation and subsequent regulation did not create a contract promising the full amount of risk corridors payments.”

The court acknowledged the section of the ACA requiring the HHS Secretary to establish risk corridor payments is “unambiguously mandatory,” but said Congress included appropriations riders during each of the program’s three years to ensure risk corridor payments were budget neutral.

The court added that the program “lacks the trappings of contractual agreement,” rebuffing Moda Health’s argument that HHS is required to make payments.

In a statement to FierceHealthcare, Moda Health President and CEO Robert Gootee said the insurer plans to appeal the decision.

“We are disappointed by today’s decision,” he said. “If it is upheld on appeal, it will effectively allow the federal government to walk away from its obligation to provide partial reimbursement for the financial losses Moda incurred when we stepped up to provide coverage to more than 100,000 Oregonians under the ACA. We continue to believe, as our trial court did, that the government’s obligation to us is clearly stated in the law and we will continue to pursue our claim on appeal.”

In a dissenting opinion, Judge Pauline Neman argued that the appropriations riders did not cancel out HHS’s obligation to make risk corridor payments. She said the court’s decision “undermines the reliability of dealings with the government.”

So this isn’t the end of the road for insurers, and there’s some good language in the majority opinion about their statutory entitlement. But it’s a Michigan-size pothole in their path to getting paid.

Dozens of insurers have sued the government to reclaim billions in unpaid risk corridor payments. Moda Health claimed it is owed $214 million, while Blue Cross Blue Shield of North Carolina filed for nearly $150 million in unpaid payments and Humana claims its owed $611 million.