|The politics and substantive rules of the road for the Affordable Care Act are more stable now than they have been in years. But chaos is never far away.
What to watch: The upcoming ACA enrollment season, which starts Nov. 1, will be the first one with the Trump administration’s agenda fully in place, and it will test just how effective that agenda is.
This period of relative certainty could come undone in court.
The bottom line: We’re either adjusting to the new normal, or in the calm before the storm. A federal judge in Texas and a six-week enrollment period will tell us which. — Sam Baker
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With less than a month before the midterm elections, endangered Republican lawmakers are mounting a defense against attacks they’re trying to dismantle a core element of the health-care law they fought to eliminate.
Democratic candidates on the campaign trail now regularly accuse Republicans of wanting to take away health-care protections for people with preexisting conditions. They’ve pointed to a lawsuit brought by 20 attorneys general in Republican-led states aiming to overturn the Affordable Care Act as proof the GOP wants to let such protections go down with the health-care law. That’s after Republicans whiffed in their effort to repeal and replace the ACA last summer.
Vulnerable Republican contenders are responding to the slams by airing campaign ads saying they embrace this portion of the ACA. They’re also introducing a wave of bills in Congress they say would protect those with prior illnesses from losing access to affordable health care. But experts question the efficacy of those measures, saying they seem more designed as protection against Democratic attacks than significant policy solutions, as I helped report in a story with Colby Itkowitz this week.
In August, 10 Senate Republicans, including Sen. Dean Heller of Nevada, one of the most vulnerable GOP senators facing reelection in November, sponsored a bill to guarantee protections for patients with preexisting conditions regardless of whether the ACA is struck down in court.
The bill, spearheaded by Sen. Thom Tillis (R-N.C.), would guarantee that insurers sold plans to individuals regardless of whether they have preexisting conditions. But critics and health-policy experts contend the bill leaves a loophole that would exclude coverage for certain services associated with those conditions. For example, a person with cancer wouldn’t be denied coverage, but the insurer wouldn’t be required to cover that patient’s cancer treatments.
Larry Levitt, senior vice president for health reform at the Kaiser Family Foundation, explained the Justice Department’s argument in the Texas lawsuit that certain provisions of the ACA should be thrown out, including a “preexisting condition exclusion prohibition.”
Levitt said that such exclusions were common before Obamacare. While Tillis’s bill would restore some parts of the ACA if the Texas lawsuit is successful, it wouldn’t change rules that prohibit insurers from excluding coverage for those with prior illnesses.
“The thing about insurance regulation is it’s kind of like plumbing: A small leak becomes a big leak,” Levitt said. “Insurers would take advantage of that loophole.”
Tillis spokesman Daniel Keylin pushed back on those criticisms and said they are based on an assumed outcome of the Texas lawsuit.
Keylin said there have been “misleading and inaccurate claims made about this bill, claims that assume the courts will strike down the entirety of the Affordable Care Act in Texas versus United States.”
Keylin said the Tillis bill wasn’t meant to be “comprehensive health-care legislation,” or the “totality of Congress’s answer to the Affordable Care Act falling.”
“There is obviously no ironclad way to precisely predict how the court will rule. However, this legislation is an important preemptive step toward getting feedback, hashing out ideas, and underscoring the importance of protecting Americans with preexisting conditions,” Keylin said
He said Tillis would consider “modifications or amendments” to the measure if the court ruling goes beyond what the bill addresses.
On the House side, Rep. Steve Knight (R-Calif.), locked in a tight race in California’s 25th district, introduced a bill last month similar to Tillis’s proposal. Two other vulnerable Republican congressmen also introduced nonbinding resolutions affirming their support for protecting those with preexisting conditions, though neither contains substantive policy solutions.
Iowa Republican Rep. David Young’s resolution says regardless of what happens to the ACA, Congress should retain protections for preexisting condition. Texas Republican Rep. Pete Sessions’s resolution says states should be allowed the authority to restructure their individual health-care marketplaces, but should ensure people with preexisting conditions can access affordable coverage.
“It seems not to be politically acceptable anymore to be against protecting people with preexisting conditions,” Levitt said, pointing to all the Republican proposals. “If you look at an example, like Sen. Tillis’s bill, it shows how wide a gap there can be between a state of desire to protect people and the reality of what an actual piece of legislation does.”
For their parts, spokespeople for Young and Sessions said the congressmen’s views on protecting patients with certain conditions are not new. In a statement, Knight said he has “always advocated” for such coverage.
“He’s always been supportive of protecting preexisting conditions going back to the [American Health Care Act]. This is just another step,” Young spokesman Cole Staudt said. “This is not a new position for him.”
Sessions, Young and Knight voted to repeal the ACA, though Young co-sponsored an amendment to the Republican bill that would have buffered the impact of the repeal on people with preexisting conditions. Staudt added that Young would consider introducing legislation in the future depending on the outcome of the Texas lawsuit.
Yet Joel Ario, managing director of Manatt Health and former director of the Health and Human Service’s Office of Health Insurance Exchanges, said any proposal that “deviates from what was originally in the ACA as a single risk pool concept is going to disadvantage people with preexisting conditions.”
He pointed to Republicans’ record opposing individual pieces of Obamacare, pointing to the elimination of the individual mandate in the GOP tax overhaul: “Anybody who voted for the mandate repeal voted against people with preexisting conditions,” he said.
Ario called GOP messaging ahead of the midterms a response to public polling that shows how important preexisting condition coverage is to voters.
“Republicans are trying to play into public support for protecting preexisting conditions,” he said, adding they’re “ignoring the fact that their previous action disadvantaged people with preexisting conditions.”
The most enduring legacy of the Affordable Care Act may be emerging now in midterm races across the country, and our health care system may never be the same.
For the first time in our history, Americans are agreeing that even if you are sick you should be able to find private health insurance coverage you can afford. Not only do 81 percent of voters now think it should be illegal for insurance companies to deny coverage to people with pre-existing conditions, but both political parties have embraced this central tenet of Obamacare.
Responding to Democratic attacks and polling data, Republicans are backpedaling from opposition to the Affordable Care Act’s guarantees that the more than 50 million Americans with pre-existing conditions should be able to find coverage. Writing last month in the Wall Street Journal, Republican strategist Karl Rove urged candidates to embrace the pre-existing condition guarantee, but to find new conservative strategies for securing it.
This development is historic. Before the passage of the Affordable Care Act, Americans broadly embraced a national obligation to insure the elderly, the poor, and the disabled. We’ve now added the sick to this list. If the past is prelude, there will be no retreating from this commitment. Once acknowledged, commitments like Medicare and Medicaid are virtually impossible to claw back.
As policymakers look to respond to this newfound promise to the sick, they will be confronted with the harsh reality of private health insurance markets: The only way insurers can offer affordable coverage to the sick is if they have a substantial number of healthy enrollees.
Many of the ACA’s most controversial provisions are aimed at providing private insurers a steady supply of good risks. This includes the much-vilified individual mandate, as well as restrictions on the sale of skimpier, cheaper policies, such as short-term health plans, that appeal to healthy purchasers and siphon them away from the risk pools that cover less-healthy consumers. The ACA also provided temporary reinsurance that protected private plans against unpredictable, catastrophic losses likely to occur when they cover very sick clients. That provision, however, has expired.
The challenge facing policymakers going forward will be how to execute this new guarantee that the sick have access to private insurance. A wide variety of options spanning the political spectrum exist, but virtually all require some form of government involvement.
The left proposes that, if private companies don’t step up, the federal government should fill in by allowing consumers with pre-existing conditions (or even those without them) to buy into Medicare or Medicaid. As Medicare and Medicaid are among our nation’s most cost-effective insurers, this could be a way of expanding coverage while keeping costs in check.
Another alternative would be to build on the Affordable Care Act’s current provisions that require insurers to cover pre-existing conditions, prevent insurers from charging more for those conditions, and provide strong financial incentives for healthy individuals to purchase private marketplace plans. Despite the repeal of the individual mandate and other attempts to undermine the ACA, private insurance markets created by the ACA have shown considerable resilience, with premiums actually declining this year for the first time since the ACA was enacted.
Republicans have released legislation that would amend the Health Insurance Portability and Accountability Act to require insurance companies to sell plans to people with pre-existing conditions and not charge them more because they have been, or are, sick. Insurers, however, would be able to deny coverage for specific illnesses. In other words, insurers would have to sell coverage plans to people with pre-existing conditions, say diabetes, but would not have to cover their diabetes. Insurance companies could also increase premiums based on age, gender, or occupation.
Another Republican approach, discussed during the “repeal and replace” debate, would make available subsidized plans, such as the ACA, but increase premiums over time if individuals failed to purchase them at the outset. In theory, healthy individuals would jump into the pool to avoid paying a penalty at a later date. This is an approach used under Medicare Part B, a voluntary program that covers outpatient services, that has been fairly effective and politically acceptable.
These and other routes toward coverage for sick Americans will be fiercely debated in the coming years. As we do so, we shouldn’t lose track of the profound change in attitude and expectations around health insurance for the sick that will animate this debate.
Elected officials should expect to be held accountable this November, and for many Novembers to come.
The nominee’s approach to politically charged healthcare topics, such as the ACA and abortion, are among the items at issue in the debate.
Confirmation hearings for U.S. Supreme Court nominee Judge Brett Kavanaugh began with fireworks Tuesday morning before the Senate Judiciary Committee.
Democrats and protestors alike interrupted Chairman Chuck Grassley, R-Iowa, repeatedly in apparent attempts to block the hearing from proceeding. The episode reflects a high-stakes and largely partisan debate that could dramatically impact U.S. healthcare for decades to come.
Kavanaugh, 53, would be the second-youngest member on the court if confirmed, resulting in a 5–4 reliably conservative majority, as NPR reported. His approach to hot-button healthcare topics, such as abortion and the Affordable Care Act, have received particular scrutiny.
On the presidential campaign trail, then-candidate Donald Trump promised to nominate only justices who would overturn Roe v. Wade. Kavanaugh reportedly told one senator that he views Roe as “settled law.” But that doesn’t necessarily mean he believes Roe can’t be overturned, as The Atlantic’s Garrett Epps wrote.
Kanaugh dissented in an opinion last year, writing that the government has “permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating an abortion,” and it “may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.”
Another healthcare-related decision by Kavanaugh likely to come up is his 2011 dissent holding that the ACA’s individual mandate was legal as a tax authorized by the Commerce Clause.
Kavanaugh’s reading could come full circle, if a legal challenge launched by conservative states progresses to the Supreme Court. The states argue that the entire ACA was rendered unconstitutional when Congress zeroed out the tax penalty tied to the individual mandate, canceling its status as a tax. In response to the lawsuit, the Trump administration abandoned its defense of key ACA provisions.
It’s worth noting, though, as Bloomberg’s Sahil Kapur did, that Kavanaugh’s 2011 ACA ruling effectively “ducked the issue,” enabling him to avoid ruling on the ACA’s merits. That’s significant because some senators have said Kavanaugh’s views on the ACA will affect how they vote on his nomination.
While liberals fear that Kavanaugh could contribute to the ACA’s dismantling, some conservatives worry he’s too moderate on the ACA. Kavanaugh himself has reportedly signaled in private meetings with Democrats that that he’s skeptical of certain claims in the current Republican-led effort to overturn the Obama-era law.
Litigation in Texas over the constitutionality of the individual mandate and, with it, the entire Affordable Care Act (ACA) is receiving more and more attention in Congress. On August 23, 2018, Republican Senators released new legislation that they believe would help blunt the impact of a ruling for the plaintiffs in Texas v. United States. The stated aim of the bill is to “guarantee” equal access to health care coverage regardless of health status or preexisting conditions. However, in the event that the court agrees with the plaintiffs—or even just the Trump administration—the legislation leaves significant gaps.
At the same time, Democratic Senators had their efforts to potentially intervene in the litigation rebuffed during the debate over a recent appropriations bill for the Departments of Labor, Health and Human Services (HHS), Education, and Defense. With a hearing on Texas scheduled for September 5, 2018—the same time as hearings are set to begin in Congress over the confirmation of D.C. Circuit Judge Brett Kavanaugh to the Supreme Court—attention on the case is only likely to increase.
Brief Background On Texas
In Texas, 20 Republican state attorneys general and two individual plaintiffs challenge the constitutionality of the individual mandate, which was zeroed out by Congress beginning in 2019. Without the penalty, the plaintiffs argue that the mandate is unconstitutional. Because the mandate cannot be severed from the rest of the law, they believe the entire ACA should also be struck down.
In June, the Department of Justice (DOJ) declined to defend the constitutionality of the individual mandate alongside the ACA’s provisions on guaranteed issue (42 U.S.C. §§ 300gg-1, 300gg-4(a)), community rating (42 U.S.C. §§ 300gg(a)(1), 300gg-4(b)), and the ban on preexisting condition exclusions and discrimination based on health status (42 U.S.C. § 300gg-3). These provisions collectively ensure that individuals with preexisting conditions cannot be charged more for their coverage or denied coverage or benefits based on health status or other factors.
The plaintiffs have asked Judge Reed O’Connor of the federal district court in the Northern District of Texas to enjoin HHS and the Internal Revenue Service (IRS) from enforcing the ACA and its implementing regulations—or, at a minimum, to strike down the law’s guaranteed issue and community rating provisions alongside the mandate. Judge O’Connor is considering ruling on the merits of the case (instead of issuing a preliminary injunction) and has scheduled a hearing on the motion for a preliminary injunction for September 5.
As noted above, the hearing will coincide with confirmation hearings for Judge Kavanaugh. Texas will likely be a focal point in the Kavanaugh proceedings because of the possibility that the case will reach the Supreme Court and because previous decisions suggest that Judge Kavanaugh believes that a President can decline to enforce laws that he or she believes to be unconstitutional.
The New Republican Legislation
Recognizing the potential impact of the Texas lawsuit, 10 Republican Senators released new legislation on August 23. The bill is sponsored by Senators Thom Tillis (NC), Lamar Alexander (TN), Chuck Grassley (IA), Dean Heller (NV), Bill Cassidy (LA), Lisa Murkowski (AK), Joni Ernst (IA), Lindsey Graham (SC), John Barrasso (WY), and Roger Wicker (MS). It is tied directly to the Texas litigation: Press releases acknowledge the September 5 hearing and state that “protections for patients with pre-existing conditions could be eliminated” if Judge O’Connor rules in favor of the plaintiffs.
The legislation would amend the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Although HIPAA offered significant new protections at the time it was passed, these protections were limited in terms of ensuring that people with preexisting conditions could access affordable, comprehensive coverage, particularly in the individual market. HIPAA established a minimum set of federal protections for certain consumers—for example, those who lost their group coverage—facing certain situations, such as job lock because of a new preexisting condition exclusion period. HIPAA also required guaranteed issue in the small group market and guaranteed renewability in the individual and group markets.
As mentioned, the DOJ has declined to defend the ACA’s provisions on guaranteed issue (42 U.S.C. §§ 300gg-1, 300gg-4(a)) and community rating (42 U.S.C. §§ 300gg(a)(1), 300gg-4(b)), and the ban on preexisting condition exclusions and discrimination based on health status (42 U.S.C. § 300gg-3). Thus, their position in the lawsuit implicates parts of four provisions of federal law: 42 U.S.C. §§ 300gg, 300gg-1, 300gg-3, and 300gg-4.
The legislation introduced by Republican Senators would restore only two of the four provisions that stand to be invalidated in Texas: 42 U.S.C. § 300gg-1 (guaranteed issue) and most of § 300gg-4 (guaranteed issue and rating based on health status). So the bill would prohibit the denial of coverage and rating based on health status, but it would not prohibit preexisting condition exclusions or rating based on other factors, such as age, gender, tobacco use, or occupation. This means that many individuals, including those with preexisting conditions, could still face higher premiums, higher out-of-pocket costs, and the denial of benefits because of a preexisting condition even after paying premiums for many months.
The protections offered by the restoration of the two provisions included in the Senate GOP bill, § 300gg-1 and most of § 300gg-4, are largely illusory without the other parts of the ACA—community rating and the ban on preexisting condition exclusions—that are at risk in the lawsuit. Assuming the at-risk provisions are struck down and the new legislation is adopted, consumers would still face significant gaps. For instance, a woman with a history of cancer could purchase a policy under the new bill, but she could be charged more based on her gender and age, potentially pricing her out of the market. In addition, her policy could have a preexisting condition exclusion, meaning that any recurrence of cancer—or any other health condition—might not be covered at all; this could lead to much higher out-of-pocket costs and far less financial protection.
If Congress were to enact this bill today, it would largely be duplicative of existing law (and would do nothing to disturb the ACA). If Congress were to enact this bill in response to the Texas litigation, its effect would depend on how (if at all) a court would invalidate the ACA provisions in Texas. Would a court strike the entire provisions, including what was adopted under HIPAA and other federal laws? Or would a court simply strike the amendments that were made by the ACA?
If the latter, the new legislation might do even less than its authors think, because much of the bill is, in fact, devoted to readopting existing federal law that may not be at issue in Texas. These provisions were adopted before the ACA and touch on, for instance, genetic information nondiscrimination and long-standing exceptions to guaranteed issue.
No Vote On Manchin Resolution To Potentially Intervene In Texas
In July, Democratic Senators led by Joe Manchin (WV) introduced a resolution with the goal of intervening in Texas to defend the ACA’s protections for people with preexisting conditions. The resolution would authorize the Senate Legal Counsel to move to intervene in the case on behalf of the Senate and defend the ACA. During last week’s debate over an HHS appropriations bill, Senate leadership blocked a vote on the amendment.
New Jersey leads the nation in so many important things: rest stops named for historical figures, willingness to wear track suits in public — and now, reconstituting the Affordable Care Act under President Trump.
No state has moved faster or more aggressively to shore up its ACA markets than Jersey.
- Yesterday, the Trump administration approved the state’s proposal for a new, five-year reinsurance program — essentially a subsidy that helps insurers pay for their most expensive customers, so they don’t have to pass those costs on through higher premiums.
- That program will be paid for, in part, by New Jersey’s newly enacted individual mandate.
- New Jersey also bans short-term insurance plans that don’t cover pre-existing conditions. The Trump administration has loosened the rules for those plans, but states are free to enact their own restrictions.
Those three policies — an individual mandate, a reinsurance program and limits on short-term plans — are states’ most muscular options for stabilizing their individual insurance markets, especially if they want to stick to the same core model of the pre-Trump ACA.
- Right now, Jersey is the only state that has all three.
Meanwhile: The California State Assembly passed a bill yesterday to ban short-term plans.
The big picture: As more states — mostly blue states — restrict short-term plans and win approval for reinsurance programs, expect to see a deepening red-blue divide in state insurance markets and, as a result, in average premiums within the ACA’s exchanges.
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.
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.
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.