
HHS has already submitted a proposal of new rules to OMB. [Under the proposal,] insurers would have more leeway to vary prices by age, so that premiums for the oldest customers could be 3.49 times as large as those for younger customers. Today, premiums for the old can be only three times as high as premiums for the young, which is what the Affordable Care Act stipulates. According to sources privy to HHS discussions with insurers, officials would argue that since 3.49 “rounds down” to three, the change would still comply with the statute.
This is kinda dumb. It’s also not so legal. The ACA says that “the rates” for health plans “shall not vary by more than 3 to 1 for adults.” The statute couldn’t be clearer. As I said to Jonathan: ”If I told you not to sell something for more than $3.00, and you went ahead and sold it for $3.49, then you’ve disregarded my instruction. It doesn’t matter if it rounds to $3.00. It’s more than $3.00.”
Under Chevron, agencies have lots of room to interpret ambiguous statutes. But there’s no ambiguity here. The statute says no more than 3, period. As Monty Python might say, 3.49 is right out. (Here’s where I insert the standard caveat that the administration hasn’t offered a legal argument—or any public comment, for that matter—and it’s possible I’m missing something. Also, the rule could easily be amended during OMB review.)





