Exchange Stabilization Bills Represent New GOP Approach To ACA
Timothy Jost
January 28, 2017 - Health Affairs
The strategy that Congress and the Trump administration will pursue to repeal
and replace the Affordable Care Act continues to evolve. In early January, the
favored strategy seemed to be to repeal as much as possible of the ACA through
legislation, but to delay the repeal of key provisions, such as the premium tax
credits and marketplaces, for two or more years and then begin work on a
replacement. In mid-January, this seemed to be giving way to an approach,
apparently favored by the Trump administration, under which replacement
legislation would be adopted more or less simultaneously with repeal, although
it was not clear how this could take place without cooperation from Democrats,
which seemed unlikely.
As January draws to a close, it appears that a new strategy is coming to the
fore: to adopt piecemeal replacement legislation even as repeal legislation
proceeds through reconciliation. On January 27, 2017, House Republicans released
four bills meeting this description that will be considered at a House
Energy and Commerce Committee hearing on February 2, 2017.
The Hearing is entitled gPatient Relief from Collapsing Health Markets,h
intending to amplify a Congressional Republican narrative that maintains that
the individual health insurance market was near collapse under the ACA and that
only they can rescue it. The past year did see dramatic premium increases and
insurer withdrawals in some states. In other states, however, to quote from a
letter to Congress from the National
Association of Insurance Commissioners, the gindividual market is robust
with increased enrollment and premiums have stabilized.h There is considerable
evidence that the individual market
was heading toward stabilization prior to the November election, as
evidenced by an S&P
market report from December, 2016.
It is a fact, however, that insurers are nervous about the individual market,
and that the public is nervous as well about promises to repeal the ACA, which
covers 20 million of them. The proposed legislation is primarily an attempt to
calm the jitters of nervous insurers, but it also attempts to respond to
complaints that Congress is preparing to abandon consumers with preexisting
conditions.
Special Enrollment Period Eligibility Verification
The first
bill would (for plan years beginning on or after January 1, 2018) prohibit
insurers from making coverage effective for new enrollees who enroll during
special enrollment periods (SEP) until HHS verified that individualfs
eligibility for SEP enrollment. The bill directs HHS to create a SEP eligibility
verification process through interim final rulemaking (rulemaking without prior
notice and opportunity for public comment). The bill provides that the
verification process should be similar to the review and assessment process
described in the preface to the 2017 final
payment rule, which merely called for the collection of and assessment of
documentation to assess eligibility. HHS has already begun a pilot
program for verification of eligibility for some SEP applications beginning
in June of 2017, but this bill would extend full documentary verification to all
SEP applications.
The bill would apparently not allow insurers to verify eligibility
themselves, as they have requested, but would rather leave the responsibility
with HHS. The bill also does not state clearly whether actual coverage would
begin only upon verification or whether it would apply retroactively to the date
on which the consumer applied or selected a plan, as the HHS pilot requires.
This could be very important for someone in need of immediate care. Though
insurers have demanded increased verification, there is a real risk that
documentation requirements would discourage
healthy people from going through the hassle of enrolling, and might thereby
make the risk pool more costly.
The bill would also require the HHS Office of Inspector General to conduct a
study to determine how many individuals applied for SEPs in plan year 2016 but
were denied enrollment because they did not provide documentation establishing
that they were qualified individuals or produced invalid documentation. As any
individual resident in a state is a qualified individual except for unlawful
aliens and people who are incarcerated, this may be aimed at determining how
many people were denied enrollment for not establishing that they were citizens
or lawful aliens.
Broadening Permissible Premium Variation By Age
A second
bill would increase the ratio by which insurers may vary the rates charged
to older enrollees in the individual and small group market to the rates they
can charge younger enrollees from the current ratio of three-to-one to a ratio
of five-to-one, or to any other ratio established by a state. Insurers have long
complained, with some justification, that the three-to-one ratio is not
actuarially accurate and that a five-to-one ratio is more so. Most states
permitted age rating ratios higher than three-to-one before the ACA, and the
issue of age rating was actively debated as the ACA was being drafted.
Insurers argue that changing to a five-to-one ratio would make health
insurance more affordable for healthy young people, drawing more of them into
the risk pool and thus reducing costs for all. Supporters
of the three-to-one ratio have argued that in fact young people are much
more likely to have Medicaid coverage or coverage under their parentsf plans or
to have generous premium tax credits that offset higher premiums, and that older
people are more likely to have high out-of-pocket costs that will exacerbate the
effects of higher premiums. Moving from a three-to-one to a five-to-one ratio
will increase premiums for older people more than it will reduce them for
younger people, but if the result is that insurers remain in the market and hold
down premium increases overall, all might in fact be better off.
Tightening Grace Period For Missed Premium Payments
A third
bill would, for plan years beginning during 2018, reduce the ACAfs 90-day
grace period to catch up on missed payments for individuals who are receiving
premium tax credits; the grace period would instead be the period established by
state law or, if there is none, to one month. Under current rules, insurers must
cover claims for the first 30 days of the grace period, but may then pend claims
for the remaining two months and only pay them if the enrollee catches up with
missed premiums. Only after 90 days may the insurer terminate coverage for the
rest of the year.
Individuals receiving premium tax credits are often living on very tight
budgets and some miss payments occasionally because of other financial
exigencies. But insurers claim that enrollees have been gaming the grace period,
skipping their payments for the last three months of the year and catching up
only if they find they actually need health care. HHS stated in the preface
to the 2018 payment notice that it had studied these claims and found no
evidence to substantiate them. Again, however, the legislation might make it
somewhat more likely that insurers will stick with the marketplaces for
2018.
Promise Of Ban On Preexisting Condition Exclusions
The fourth
bill is not aimed at insurers, but rather makes a general political
statement. It provides that if Congress decides to repeal the ACA and restore
prior law, the prior law will be replaced with an absolute ban on preexisting
conditions clauses and promise of guaranteed availability in both the employer
and individual market. This provision is obviously intended to make a statement
that whatever happens, Congress is not going to allow the reinstatement of
preexisting conditions or denials of coverage based on health status.
The bill defines preexisting conditions very broadly to include any kind of a
limitation or exclusion of benefits based on a condition that was present before
the date of enrollment (or the beginning of a waiting period before enrollment),
whether or not the condition was diagnosed or treated. Curiously, it provides
that genetic information shall not be treated as a preexisting condition if it
has not resulted in a diagnosis, which would allow insurers to exclude coverage
for genetic conditions that were not diagnosed at the time of enrollment. One
wonders if this is a drafting error.
Health insurers may restrict guaranteed availability to open and special
enrollment periods, and limit special enrollment periods to events that would
qualify for COBRA coverage eligibility—i.e. the death of a covered employee,
termination of work or reduction of hours, divorce from a covered employee,
Medicare eligibility, the end of coverage for a dependent child, or employer
bankruptcy. This odd list of special enrollment periods omits such obvious
events as birth, adoption, and marriage, and does not seem well thought out.
The bill does not restrict health status underwriting of premiums, so
coverage could in fact be available for people with preexisting conditions, but
only at high and unaffordable premiums. Moreover, without the risk adjustment
program in effect under the current law, insurers would face significant
disincentives to enroll high-cost enrollees and little incentive to do so.
Finally, the bill contains a second reserved title on continuous coverage,
suggesting that final legislation would only protect individuals who maintained
continuous coverage in some way.
In sum, we have here the first set of repeal and replace bills to be
considered by a committee of the new Congress and they are not aimed at
destroying the ACA, but rather at trying to calm insurers and a nervous public.
Some may even pass on a bipartisan basis. This is a very interesting
development.
While the first three bills are intended to stabilize insurance markets,
however, to accomplish this goal they must be accompanied by a commitment by
Congress to fund seven to nine billion dollars in cost-sharing
reduction payments owed the insurers, but threatened by House v.
Burwell, and ensure
payment of all reinsurance funds due insurers. Without these supports, and
probably additional reinsurance funding, insurers are unlikely to return for
2018.
Even as Congress is considering legislation to shore up individual insurance
markets, the Trump administration took action that could undermine them. On
January 26, 2017, the White
House ordered all marketplace advertising, media outreach, social media
communications, reminder emails, search engine optimization efforts, and other
outreach efforts to cease (although the administration apparently allowed the
resumption of outreach efforts on January 27 except for paid advertising).
Open enrollment for 2017 ends on January 31. Evidence from prior open
enrollment periods shows that enrollment spikes in the final days of the open
enrollment period. Increasing enrollment is key to stabilizing the individual
insurance market, as the larger the risk pool the more likely it is to be
balanced. Until mid-January, enrollment for 2017 was running ahead of 2016 and
final enrollment would likely have been up as well had the enrollment push
continued until the end.
Moreover, evidence from prior open enrollment periods demonstrates that young
people are particularly likely to enroll at the very end. As the legislation
being considered by Congress acknowledges, enrolling young people is a key
element of stabilizing the marketplaces. It is unfortunate that efforts at one
end of Pennsylvania Avenue could undermine initiatives at the other end.