Friday, December 07, 2018

Waiving the ACA marketplace away (at

It doesn't matter to anyone but me, but work on articles for outside publications sometimes leads to long blogging pauses. Pending [update: now posted] : a look at likely fallout from CMS's "waiver concepts" released Nov. 29 -- very broad templates for how the Trump administration would like to see states implement ACA innovation waivers under the guidance CMS issued on Oct. 24.

That guidance took an ax to the so-called "guardrails" previously constraining the ACA Section 1332 innovation waivers: statutory requirements that alternative schemes developed in waiver proposals provide coverage as comprehensive and affordable to as many people as would the default ACA design, without increasing the deficit. Trump's CMS decoupled the requirement to provide coverage as comprehensive and affordable from the requirement to cover as many people, declaring that equally comprehensive/affordable insurance had to be merely "available," not "provided."

CMS also erased 2015 guidance stipulating that changes could not harm vulnerable groups such as low income, older or high-medical-need enrollees, declaring, in effect, that such populations could be harmed "slightly" in pursuit of covering more people more cheaply.

Three of the four waiver concepts ring variations on one uber-concept: using the federal dollars currently devoted to subsidizing coverage in the ACA marketplace to subsidize ACA-noncompliant products such as short-term plans.

In a pending post [now up] at, I try to flesh out how programs conforming to the "concepts" might affect the vulnerable populations named in the superceded 2015 guidance: low income, older, and sicker enrollees. In an outtake, I question whether proposals conforming to the concepts can adhere even to the weakened guidance CMS issued in October, let alone violating the ACA statute:
Further, it's questionable whether the waiver concepts could pass muster even under the new CMS guidance. The new guidance affirms that coverage as comprehensive and affordable as that on offer without the proposed scheme has to be available, even if fewer people choose it.. While the CMS fact sheet laying out the waiver concepts states that proposals must meet the statutory guardrails, it offers no hints as to how the developed concepts might satisfy even the "availability" standard.
That argument is developed in more detail (with respect to subsidizing noncompliant plans, prior to release of the waiver concepts) here

UPDATE, 12/8: Joel McElvain, a former Dept. of Justice lawyer who participated in the defense of the ACA in the two cases that reached the Supreme Court, has since argued in detail that the October guidance violates the ACA's statutory language. He also, by the way, affirms the thesis advanced in this post:
There is, at a minimum, substantial doubt as to whether some of the concepts that HHS described in the discussion paper could meet even the agencies’ newly-announced interpretation of Section 1332; it is questionable whether state residents would continue to have access to the same level of comprehensive, affordable health coverage under a waiver that siphons off healthy people from the risk pool, as HHS appears to be contemplating.     

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