CMS cuts ACA exchange fees, floats proposal to end silver-loading

https://www.healthcaredive.com/news/cms-cuts-aca-exchange-fees-floats-proposal-to-end-silver-loading/546399/

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Dive Brief:

  • CMS proposed in its 2020 Payment Notice on Thursday a reduction to exchange user fees and is asking for feedback on a proposals to potentially eliminate auto-reenrollment and “silver-loading,” a strategy used by payers where they pack the ACA’s subsidy-rich silver tier plans in order to make up for losses incurred by the elimination of cost-sharing reduction (CSR) payments.
  • The agency is proposing to drop the exchange fee to 3% from 3.5% of premiums for plans sold on the federal exchange and to 2.5% from 3% for plans sold on state exchanges. If finalized as-is, the rule would also increase the annual cost-sharing limit for self-only coverage to $8,200 from $7,900 and to $16,400 from $15,800 for family coverage.
  • While rule’s intentions are to lower premiums, critics have argued it would trigger the opposite. Former CMS Administrator Andy Slavitt warned through a series of tweets that the rule is an “act of sabotage” that would cut coverage for 2 million Americans, “significantly increase premiums, and raise out of pocket costs.”

Dive Insight:

CMS has presented the rule as another step toward deregulating healthcare and lowering costs for consumers. Consumers, the agency argues, will ultimately save money on premiums, savings that will theoretically trickle down from insurers, who will pay less in exchange user fees once the proposal is finalized.

CMS Administrator Seema Verma said in a statement that the rule is aligned with the Trump administration’s healthcare goals, which include lowered premiums, reduced regulations, market stability, consumerism and protection for taxpayers.

While no regulations limiting or banning auto-enrollment and silver-loading are contained in the rule, CMS has requested public comment on the two issues for consideration in future rules before 2021.

The Administration supports a legislative solution that would appropriate CSR payments and end silver loading,” the proposed rule states. “There is a concern that automatic re-enrollment eliminates an opportunity for consumers to update their coverage and premium tax credit eligibility as their personal circumstances change, potentially leading to eligibility errors, tax credit miscalculations, unrecoverable federal spending on the credits, and general consumer confusion.”

Critics called it the latest act of “sabotage” on the ACA.

Ending auto-enrollment, a key feature of the ACA, would result in lost coverage for a number of Americans.

The end of silver-loading, a tactic many health plans resorted to in 2018 after the elimination of the law’s cost sharing reductions, could wreak havoc for insurers in the exchanges.

Opponents of the rule believe cracking down on silver-loading would do little more than boost premiums for consumers, as insurers would have no other mechanism to mitigate subsidy losses. 

President Trump, Senator Patty Murray, D-Wash., said in a statement. is “hurting families left and right.” Murray is the top Democrat on the Senate Health, Education, Labor, and Pensions Committee.

“Even 27 days into the shutdown he caused, President Trump has somehow found time to further sabotage health care for patients, families, and women —this time by proposing what would amount to a health care tax on patients and families across the country,” Murray said.

America’s Health Insurance Plans praised the reduced user fee, adding the proposed rule focuses on “stability in the individual market.” But it is unclear where the insurance lobby stands on the proposals to potentially end auto-reenrollment and the practice of silver-loading.

Public comments on the rule are due February 19. 

 

 

Where the ACA health insurance exchanges stand in 2018

http://www.modernhealthcare.com/reports/180411where-aca-exchanges-stand/

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The Affordable Care Act’s health insurance exchanges have proven to be quite sturdy despite a barrage of federal actions that threatened to topple them. The picture of the exchanges that emerges from the CMS’ final open-enrollment data is far from the imploding market that the Trump administration and countless headlines over the past year warned about.

Though enrollment in the exchanges slipped and insurers hiked premiums by an average of 30%, the size of the premium tax credits available to most exchange enrollees ballooned enough that the average subsidized shopper paid a lower premium for coverage than the year before.

Even so, the individual on-exchange ACA plans remain unaffordable for millions of people who aren’t eligible for financial help. Congress has yet to pass legislation to bolster the market and bring down premiums, and is unlikely to do so before insurers must file 2019 rates later this spring. New threats, including the expansion of short-term medical and association health plans, are coming down the pike, promising to lure healthy people away and cause even higher premium hikes next year that unsubsidized enrollees may not accept. If consumers can’t afford coverage and drop it, insurers have a smaller incentive to keep selling plans in the individual market. The more people become uninsured, the more uncompensated care hospitals must swallow.

What’s left? “A weird mix of having a relatively persistent subsidized market, coupled with only the sickest nonsubsidized enrollees, which is not the way anyone would design this to work,” said Erin Trish, associate director of health policy at the University of Southern California’s Schaeffer Center.

Here’s a look at the current state of the ACA exchanges.

Enrollment dips modestly

Enrollment in the ACA exchanges dipped just 3.3% to 11.8 million this year from 12.2 million in 2017. Leading up to open-enrollment, which ran from Nov. 1 to Dec. 15 in most states, experts were expecting sign-ups to fall sharply. The Trump administration slashed funding for open enrollment advertisements as well as enrollment assistance. It also gave shoppers less time to pick a plan, truncating the open-enrollment period to 45 days from the usual 90 days.

Katherine Hempstead, who directs the Robert Wood Johnson Foundation’s work on health insurance coverage, said the fact that just 400,000 fewer people enrolled shows “health insurance is a need-to-have for most people. People who are subsidized are going to really stick with it as much as possible.”

The final enrollment tally bodes well for health insurers, who are more likely to keep selling coverage if a large group of consumers sign up. Insurers have a harder time turning a profit when selling plans to a smaller, sicker pool of enrollees with few healthy consumers to balance out the risk. If they don’t make a profit, insurers aren’t likely to keep selling individual coverage. Several large national insurers, UnitedHealth, Aetna and Humana, have already called it quits or scaled back their participation.

Where the exchanges are working and where they’re not

Some states’ exchanges are performing better than others. States that use the federal HealthCare.gov platform generally fared worse, with enrollment dropping an average 5%. Sign-ups in the 12 states that run their own exchanges were virtually flat compared with 2017. Many state-based marketplaces stepped up advertising in the face of federal marketing budget cuts, which could explain in part why they performed better.

Rhode Island, which operates a state-based marketplace known as HealthSource RI, experienced the largest enrollment growth at 12.1%. The state offered exchange plan members the lowest-cost benchmark plan in the country, according to HealthSource RI. At the same time, federal financial assistance to exchange members in the state increased by 46% to $7.5 million.

On the flip side, Louisiana, which uses the HealthCare.gov platform, saw the largest decrease in enrollment for the second year in a row at 23.5% over the previous year. Last year, Louisiana’s exchange enrollment plummeted by 33%. The enrollment drop isn’t necessarily a bad thing: Louisiana expanded Medicaid in mid-2016, so ACA plan members likely continued to switch to Medicaid for cheaper insurance.

Premiums vary widely across states

Premiums shot up more than 30% in the 39 HealthCare.gov states, averaging $621 per month, compared with $476 in 2017. An analysis of CMS data shows that the average 2018 premium across all states was a bit higher at $631 per month, but missing 2017 data for some states makes it difficult to show a comparison. Unsubsidized members across all states paid an average $522 per month for 2018 coverage. Increasing premiums—along with reducing their footprints—has helped many health insurers, such as Anthem, Cigna and Highmark Health, turn a profit on the insurance exchanges for the first time in 2017.

Many Americans who don’t receive financial assistance can’t afford those sticker-shock prices, and more and more are thinking about going uninsured or opting for a cheaper alternative, like a short-term medical plan. As the number of uninsured and under-insured rises, so does the amount of uncompensated care at hospitals.

Like enrollment rates, premiums varied widely by state. Exchange enrollees in Wyoming were hit with the highest premiums at an average $983 per month, while those in Massachusetts paid the lowest rates at $385 per month.

The effects of “silver-loading”

Most exchange enrollees didn’t pay those sky-high prices. About 83% of consumers across the nation had their premiums reduced by an advanced premium tax credit, which is one type of federal financial assistance available to people with incomes less than 400% of the federal poverty level (roughly $48,000 for an individual). The average HealthCare.gov enrollee who received a premium tax credit paid about $89 per month for coverage, down from $106 in 2016. In Oklahoma, the average subsidized enrollee paid just $37 a month—the lowest of any state.

Subsidized premiums dropped because tax credits increased. Last year, savvy state regulators and insurers deployed a strategy to offset the effects of the Trump administration’s decision to end another form of financial assistance—cost-sharing reduction payments—that lowers exchange enrollees’ out-of-pocket costs. CSRs have historically lowered copayments and deductibles for ACA plan members with incomes lower than 250% of the federal poverty level.

When President Donald Trump stopped paying the CSRs at the end of 2017, insurers built rate increases attributable to the CSR cutoff into only silver plan premiums, which are used to determine the premium tax credit. As premiums went up, so did the size of the tax credit consumers received, meaning that most subsidized enrollees never felt the effects of big price hikes.

Larger tax credits allowed some exchange shoppers to find zero-premium bronze plans or lower-cost gold plans. As a result, fewer people—62.6%—enrolled in silver plans in 2018, down from 71.1% in 2017. Enrollment in bronze and gold plans, on the other hand, increased. Metal tiers represent the actuarial value, or the average share of health costs covered, by the plan. Gold plans pay for a larger share of the patient’s health costs.

Experts worry that people switching to bronze plans may have higher out-of-pocket costs they can’t afford, prompting them to forgo care or take on debt. Bronze plans have higher deductibles and often don’t offer cost-sharing for services before the deductbile is met.

“When you enroll in plans with higher deductibles, you use less care,” Trish explained. “People dramatically reduce their use of healthcare and not necessarily in smart ways.”

Emerging threats

The zeroed-out individual mandate penalty, potential expansion of short-term and association health plans, and the CMS’ final rule allowing states greater flexibility in determining a menu of essential health benefits all threaten to destabilize the individual market and cause higher premiums and lower enrollment in 2019. Americans who don’t qualify for subsidies will bear the brunt of any premium hikes that stem from these challenges come the sixth open-enrollment period, kicking off in November.

With a federal administration and Congress unwilling to implement policies or pass legislation that would help to keep premiums lower, such as cost-sharing reduction payments or a reinsurance pool for high-risk consumers, experts say it will be up to states to bolster their markets. Some, particularly Democratic states, are considering their own coverage mandates, though such policies are unpopular. Others may work to put restrictions on short-term medical plans. But one thing is for certain: The pervasive uncertainty surrounding healthcare rules and regulations that was a hallmark of 2017 is not dissipating any time soon and will once again be a challenge for states, insurers and consumers come the sixth open-enrollment.

 

Can insurers sue to recover cost-sharing money?

Can insurers sue to recover cost-sharing money?

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Murray-Alexander is going nowhere. Senator Collins insists that passing the bipartisan legislation, which would restore cost-sharing payments for two years, is a condition of her vote on the pending tax bill. But she appears willing to accept airy promises that Senate leadership will make the bill a priority.

Never mind that House Republicans have no intention of passing the bill and that Democrats have ruled out cooperating if the individual mandate is repealed. Never mind, too, that the Democrats’ threat is credible: they don’t stand to gain much if the bill is passed. By and large, insurers have already adjusted to the loss of the cost-sharing subsidies.

How exactly have they adjusted? Most states instructed insurers to anticipate the withdrawal of the cost-sharing payments and to concentrate the resulting premium hikes on silver plans. Because the ACA caps the premiums that people receiving subsidies have to pay for insurance, those price spikes won’t harm most exchange customers. To the contrary, most are better off. Premium subsidies increase as the price of silver plans go up, so gold and bronze plans—whose premiums won’t increase on account of the funding cut-off—are more affordable than they otherwise would be.

In other words, “silver loading” has mitigated much of the fallout from the loss of the cost-sharing subsidies. If Congress appropriated the cost-sharing money now, it’d be a windfall for insurers. Why should Democrats throw their support behind a bill that won’t stabilize the markets and would give the Republicans cover for repealing the mandate?

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If I’m right that Murray-Alexander is a dead man walking, the cost-sharing money won’t be appropriated for 2018. That, in turn, gives rise to an interesting legal question.

As I first pointed out back in 2015, insurers can sue in the Court of Federal Claims to recover their cost-sharing payments. It’s a simple lawsuit: insurers were promised some money; the federal government reneged; and the insurers want damages on account of the breach. The payment of court-ordered damages can come out of the Judgment Fund, even without an appropriation to make the payments in the normal course.

The law is clear; the lawsuit practically writes itself. Insurers should have no trouble recovering the money owed for the last months of 2017—about $1 billion. But what about the money owed for 2018 and beyond?

As a first cut, it seems that insurers should still be able to recover. In a typical breach of contract claim, the courts aim to put a non-breaching party in the same position it would have been in if the breaching party had kept its promise. Here, Congress promised to reimburse insurers for giving their low-income customers a discount on out-of-pocket payments. Insurers are still giving those customers a discount, but the government has refused to pay.

The proper measure of expectation damages, then, is the full amount of promised reimbursement. That amount will continue to accrue for every month that Congress refuses to appropriate the money. If that’s right, the question isn’t whether Congress will pay the cost-sharing payments. It’s when.

But matters may not be so simple. In measuring damages, the Court of Federal Claims will also inquire into mitigation—a principle that might be familiar to you if you’ve ever thought about breaking a lease on an apartment. Although your landlord can sue you for any rent owed for the months remaining on the lease, he also has a duty to find a new tenant. If he does, you only have to compensate your landlord for the time that the apartment was empty. The landlord has mitigated his losses.

The same principle should kick in here. Silver loading has allowed insurers to sidestep most of the harm associated with the loss of the cost-sharing subsidies. Insurers haven’t hemorrhaged customers; instead, they’ve adapted. Indeed, some insurers are better off now than they were before: as premium subsidies increase, they’ll get more customers signing up for their gold and bronze plans.

In short, insurers have mitigated a large part of their losses. Giving them the full amount of the cost-sharing money wouldn’t put them in the same position they would have been in if the federal government adhered to its promise. It would give them a windfall. Contract law doesn’t require the courts to make contracting parties even better off than they would have been in the absence of a breach.

* * *

That doesn’t mean that insurers will lose. The default rule is still that insurers should be paid what they were promised, and the onus is on the government to prove that they’ve mitigated their losses. That’s not an easy burden to discharge: it’s hard to know what the world would have looked like if the cost-sharing payments had been made, so it’s hard to know whether any given insurer is better off or worse off now that they’ve been terminated. The factual inquiries will be demanding.

My tentative sense, however, is that insurers shouldn’t be too bullish about recovery. One reason can be found in Murray-Alexander itself. As currently written, the bill would require state insurance commissioners to develop plans to provide rebates to customers and the federal government. Why? Because funding the cost-sharing payments for 2018 would otherwise give insurers a huge windfall.

Allowing insurers to recover their money in court would give them an identical windfall. The courts aren’t likely to stand for that.