Policies to strengthen nongroup insurance markets could fix ACA problems

Enrollment and stability in the nongroup insurance market continues to be threatened by the uncertainty of support for the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). Faced with the concerns in this environment, the Robert Wood Johnson Foundation and Urban Institute issued a report, Stabilizing and Strengthening Nongroup Markets, expressing the opinion that “[t]argeted policies could fix the ACA’s problems without sacrificing its gains in coverage, affordability, and access to care.” The report identifies policies that would stabilize the nongroup insurance markets, encourage insurer participation, improve affordability, and rein in premium growth. Some policies would be implemented immediately and others would be implemented in the long term; however, solving the problems will take significant political action.

“Strategies that increase the buying power of enrollees and increase enrollment would make participation more attractive to insurers.” To strengthen ACA marketplaces, the report suggested that policymakers learn from the Medicare Advantage and Medicare Part D markets that successfully compete with the traditional Medicare program.

The current climate

The report pointed out that neither Congress nor the Trump Administration has committed to paying cost-sharing reductions, and the administration signaled it does not intend to enforce the individual mandate penalties. Open enrollment periods have been shortened and federal outreach and enrollment funds will be cut 40 percent in the Navigator program, while the ACA advertising effort will be cut 90 percent. In addition, HHS will limit access to healthcare.gov every week during the 2018 open enrollment period. Such actions will reduce coverage.

Short-term commitments

According to the report, the federal government must commit to (1) reimbursing insurers on an ongoing basis for cost-sharing reductions; (2) enforcing the individual mandate penalties; (3) increasing funding for outreach and enrollment assistance; and (4) permanently reinstating a government-funded reinsurance for nongroup markets.

Long-term commitments

Long-term recommendations addressed in the report include strengthening marketplaces, expanding coverage, reducing premiums and cost-sharing requirements, and encouraging the broadest range of insurers to participate. In addition, the federal government should permit states to expand Medicaid, eliminate non-ACA-compliant nongroup insurance products, and reverse current administrative decisions that hinder enrollment. The report noted that the lack of insurer competition is associated with higher benchmark premiums because it eliminates insurer negotiating leverage.

The report suggests that improving affordability would increase coverage, reduce the number of people uninsured, and bring more healthy enrollees into the insurance pool, lowering average premiums. Other long term policy recommendations include providing additional financial assistance to lower premiums and cost-sharing requirements for nongroup coverage, attaching premium tax credits to gold rather than silver plans lowering out-of-pocket costs for all enrollees receiving tax credits, and increasing cost-sharing subsidies for people with lower incomes.

Additional policies

To strengthen the nongroup insurance market, the report described three additional policies:

1. Benchmark premiums. Changing the way benchmark premiums are calculated affects the size of nongroup premium tax credits allowing people to choose from more plans without additional premium contributions.
2. Capping payment rates. Payment rates charged to nongroup insurers by health care providers could be capped, making it easier for insurers to enter new marketplaces and counteracting provider monopolies.
3. Standardize insurance options sold in the nongroup market. Standardizing the insurance options sold in the nongroup market could reduce the complexity of the enrollment process, improving comparability and facilitating price competition.

According to the report, “nongroup insurance markets must become larger, less expensive for consumers in both premiums and out-of-pocket costs, and less financially risky for insurers.”

Two-year commitment needed for CSR stability

At least two years of continuous funding for cost-sharing reduction (CSR) benefits is necessary to stabilize and strengthen the individual health insurance marketplace, according to a coalition of health care and health insurance providers. In a letter to the chair and ranking member of the Senate Committee on Health, Education, Labor, and Pensions, a group including America’s Health Insurance Plans, the American Hospital Association, the American Academy of Family Physicians, the American Medical Association, BlueCross BlueShield Association, the American Benefits Council, and the U.S. Chamber of Commerce requested a firm commitment to CSR payments.

Under Section 1402 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), many individuals enrolling in qualified health plans through the marketplace are eligible for reduced cost sharing based on income. These reductions are guaranteed by the ACA; the federal government is supposed to make CSR payments to insurers offering plans in the marketplace to cover the reduced prices paid by plan enrollees, but the law does not guarantee those payments. The Trump Administration has not yet committed to continuing to make the payments.

In the letter, the providers and insurers explained that nearly 60 percent of enrollees in qualified health plans have CSR benefits, but noted their concern about uncertainty about CSR payment funding. They requested two full years’ funding for the CSR program, and warned that without that certainty, premiums will increase and fewer insurers will participate in the marketplace.

Recipients of cost-sharing reductions seek to intervene in House v. Burwell

Two recipients of cost-sharing reductions under section 1402 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), concerned that the House Republicans might alter their position after the inauguration of President-elect Donald Trump (R), sought permission to intervene in the pending appeal in House of Representatives v. Burwell.

House v. Burwell

The Department of Treasury has been reimbursing insurers for their payment of reductions under section 1402 from the permanent appropriation in the Internal Revenue Code (31 U.S.C. §1324). The U.S. House of Representatives filed suit against the Secretaries of HHS and the Treasury claiming that the payments are not authorized by section 1324. The district court entered an injunction barring the payments (see Court sides with House Republicans, finds no appropriation for cost-sharing reductions, Health Law Daily, May 18, 2016) and the Secretaries appealed. On December 5, 2016, the D.C. Circuit granted the House’s motion to hold the appeal in abeyance until February 21, 2017 (see Court puts cost-sharing appeal on hold, awaits possible Trump policy, Health Law Daily, December 7, 2016).

Possible about-face

According to the movants, their interests were aligned with those of the Executive Branch, which advocated for a construction of section 1324 that permits the continued payment of cost-sharing reductions to insurers. However, statements in the House’s motion suggest that it could change position after Trump’s inauguration and enter into an agreement to dismiss the appeal or otherwise agree that the injunction should take effect—for example, that the House and the incoming Administration are “discussing possible options for resolution” of the appeal other than to “continue prosecuting” it. To defend their interest in continued payment of the cost-sharing reimbursement, the recipients asked to intervene in the case.

Potential for harm

The motion noted that if cost-sharing reimbursement payments stop, recipients of cost-sharing reductions who purchased insurance policies for 2017 will likely face early termination of those policies because the government will allow insurers to leave the exchanges. Even if the insurer remained in the market until the end of 2017 without government reimbursement for cost-sharing reductions, it would “surely exit the marketplace at the end of the plan year in order to shed any obligation to provide cost-sharing reductions.” All of this, say the movants, would drastically increase their costs for insurance.

House asks court to pause case while Trump Administration considers ACA

The U.S. House of Representatives asked an appellate court presiding over the Obama Administration’s appeal of a district court decision holding that cost-sharing reductions implemented under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) lack Congressional appropriation and that payment of reimbursements under the program is unconstitutional to temporarily pause proceedings. The House’s brief in response to the Administration’s brief in U.S. House of Representatives v. Burwell is due in late December, but the House argues that “a significant possibility of a meaningful change in policy” by President-Elect Trump’s incoming administration could either eliminate the need to resolve the appeal or drastically change the nature and scope of the issues. The House asked the court to hold the briefing schedule in abeyance until after the new president’s inauguration and to direct the parties to file a joint status report by February 21, 2017, indicating whether they will consider settlement or voluntary dismissal and, if not, to propose a new briefing schedule.

Section 1402 of the ACA requires insurers offering qualified health plans (QHPs) through the marketplace to reduce deductibles, coinsurance, copayments, and similar charges for eligible insured individuals enrolled in their plans. While the government is authorized to make payments to insurers to offset the costs of the reductions, Congress has never appropriated any funds for that purpose. In May 2016, the district court agreed with the House that such appropriations could not be inferred from section 1402 and that the government’s payments to the insurers were unconstitutional (see Court sides with House Republicans, finds no appropriation for cost-sharing reductions, May 18, 2016).

The Obama Administration does not show signs of backing down, but President-Elect Trump has pledged to work with Congress to repeal the ACA.