Looking Backward: 2023--2014 in the ACA marketplace

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This morning I happened on a January 2014 post of mine that engaged the question of whether the ACA marketplace structure might foster productive state experimentation over time. Austin Frakt engaged the question and usefully compressed my forecast as follows:

First a ground pre-prepped for de facto compromise has been laid — in the state exchanges. […] [S]tarting in 2017, states can apply for waivers by submitting alternative plans that purport to meet the ACA’s coverage benchmarks (in 2011, Obama pronounced himself willing to move the waiver start date to 2014 []).  On the Medicaid front, the Obama administration has shown itself willing to accept a wide range [of] conservative experiment[s]; the same will doubtless prove true for the exchanges if any GOP-run states want to try.  The ACA might be viewed as a multi-state laboratory waiting to happen — with no need for knock-down-drag-out fights in Congress. Governors willing to deal in good faith can work quietly with HHS — or hand-in-glove, if a Republican becomes president in 2017.

It took a failed Republican repeal attempt and years of regulatory sabotage from the Trump administration to get us there (along with the 2017 start date for state "innovation waivers"), but we're at a point where state experiments are proliferating — in at least one blood-red state as well as in blue. Consider:

Maximizing the ACA Innovation Waiver: Biosimilar silver loading, anyone?

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Ask, and it shall be given

The advocates for more affordable health insurance at Families USA are asking the Biden administration to loosen up the Catch-22 that confronts states seeking to take advantage of the ACA's section 1332 innovation waivers.

1332 waivers enable states to propose alterations to virtually every feature of the ACA marketplace in pursuit of more affordable and effective coverage. The alternative scheme must cover at least as many people at least as comprehensively as the existing marketplace, and must do so without increasing the federal deficit. 

As currently interpreted, the deficit-neutral requirement presents a Catch-22: if the state's alternative scheme ends up costing more because more people sign up, the state is responsible for the excess costs, even if the coverage costs less (or no more) per person than the exiting ACA marketplace. 

What if the Obama administration had ended direct CSR reimbursement in 2016?

Trump's bid to fund his wall with money not appropriated by Congress has set me thinking about the Obama administration's far better grounded, but still dubious, determination to fund the ACA's Cost Sharing Reduction (CSR) subsidies without an explicit appropriation from Congress.

That decision was challenged in court by the Republican Congress in 2014 and, with the suit still pending, countermanded by Trump in October 2017, with disruptive but far from catastrophic consequences.

I'm thinking not of tendentious comparisons between Obama's executive actions and Trump's, but rather about a counterfactual: What if the Obama administration had taken the likely Congressional refusal to appropriate funds at face value, and declined to directly fund CSR?

Waiving the ACA marketplace away (at healthinsurance.org)

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 healthinsurance.org, 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.     

We're in Cassidy-Collinsville, Chapter 2

Last March, Peter Suderman wrote a clever column claiming that Republican changes to the ACA -- repeal of the individual mandate, creation of a parallel ACA-noncompliant individual market -- were achieving the goals of the ACA repeal/replace bills. I noted the missing piece there: defunding the ACA, in particular the Medicaid expansion and Medicaid more generally. That was the "hot-beating heart" of the failed Republican repeal bills. Instead of AHCA- light, I suggested:

In the aftermath of the 2017 assault, the ACA resembles not so much a system established by a mainstream Republican repeal-and-replace bill as it does the kind of compromise that might have emerged from a negotiation over the Cassidy-Collins bill introduced in January 2017, if negotiation over such a plan had been possible (it wasn't, because no more than a handful of Republicans were interested in the bill).

Do CMS's new "waiver concepts" violate even the new waiver guidance?

When HHS and the Treasury first took a meat axe to the so-called "guardrails" to ACA Section 1332 innovation waivers in late October, I argued that the guardrails were not down entirely.

Specifically, even as CMS Administrator Seema Verma actively encouraged proposals that would allow premium subsidies to be applied to short-term or other ACA-noncompliant plans, a state would still have to use an ACA-compliant plan, or something very like it with guaranteed issue, to set the benchmark by which subsidies are calculated.

That's the case (I think) in spite of -- or maybe because of -- the shift in the new guidance from requiring waiver proposals to cover as many people as comprehensively as the ACA to merely making comparably affordable and comprehensive coverage available to as many people. Here's the key language:

The Departments may consider these guardrails met if access to coverage that is as affordable and comprehensive as coverage forecasted to have been available in the absence of the waiver is projected to be available to a comparable number of people under the waiver.

CMS guidance on ACA innovation waivers requires an ACA-compliant benchmark

The Trump administration has opened a new front in its assault on the ACA marketplace's protections for people with pre-existing conditions. This time the vehicle is the ACA's Section 1332 innovation waivers, which enable states to propose alternatives to the ACA's basic marketplace architecture to get their residents covered with affordable, comprehensive insurance.

In guidance issued this week, CMS relaxed strict standards that states have until now had to meet to get waiver proposals approved. Most radically, the new guidelines are designed to enable states to offer subsidies for ACA non-compliant plans, including short-term plans that are medically underwritten and don't have to cover the ACA's Essential Health Benefits.

Subsidizing noncompliant, medically underwritten health plans would seem to be a route to undermine the ACA-compliant market completely -- and potentially render comprehensive coverage unaffordable for subsidized as well as unsubsidized enrollees, especially those with pre-existing conditions.  But I suspect the guidance doesn't go quite as far as it seems to in this regard.  Some constraints on rendering comprehensive insurance unaffordable remain, I'll suggest below -- at least for subsidized enrollees.

Does the Alexander-Murray bill adequately protect vulnerable groups?

The changes to the ACA's Section 1332 state innovation waivers in the Alexander-Murray marketplace stabilization bill  have broad support, having been proposed by multiple HELP Committee hearing participants and endorsed by bipartisan outside advocates including  former acting CMS director Andy Slavitt, one of the ACA's most vocal defenders. These include providing for an expedited waiver process, an emergency waiver process, and the creation of "cookie cutter" waiver templates that multiple states may opt to adopt. (There are dissenters, however, as discussed below.)

Also a matter of broad consensus: easing the terms by which states meet the requirement that a waiver proposal be budget-neutral by 1) allowing states to combine Section 1332 waivers with Medicaid and CHIP waivers and using savings from one to offset extra spending on another, and 2) considering budget impact over the 6-year term of the waiver and a ten-year budget plan.

There is one alteration, though, that gets to the crux of the debate over state flexibility, and was probably a matter of intense negotiation. That is a change to the so-called "guardrails" pertaining to quality and affordability of coverage.

What price will Republicans extract for CSR funding and reinsurance?

If the current glimmers of bipartisanship in healthcare legislation take on any sustained shine, the primary agenda for Democrats is obvious: appropriate funding for Cost Sharing Reduction payments and for some kind of reinsurance program to replace the program that expired in 2017.

The first is simply a matter of ending sabotage: CSR is integral to the structure of the ACA marketplace and incorporated in its budget baseline. Republicans have simply exploited a drafting error to destabilize the individual market. As for reinsurance, Republicans made its necessity manifest by including generous "stability funding" in the main House and Senate "healthcare" bills -- in fact, overly generous funding designed to compensate for their various disfigurements of the market (e.g., repeal of the individual mandate and measures to reintroduce medical underwriting and non-comprehensive insurance).

To have any real hope of getting these measures passed in a Republican Congress, however, Democrats are going to have to face up to the question: What pound of flesh will they let Republicans extract as payment for these essential, common-sense fixes? It's a foregone conclusion from a progressive point of view that changes Republicans will demand will not improve the market. What concessions might actually win passage and do less harm than the fixes will do good?

Psst, Democrats: Help Republicans out of the repeal box via Cassidy-Collins

I don't want to be prematurely optimistic, but the House ACA repeal bill, the so-called American Health Care Act, seems despised from all sides -- so much so that both Jonathan Chait and Jonathan Bernstein speculate that it's designed to fail. It's being denounced by Tea Partiers as Obamacare Lite and by progressives -- and conservatives with any commitment to extending insurance access -- as certain to un-insure millions to tens of millions of low income ACA beneficiaries.

More to the point, its release was immediately preceded by a letter to Mitch McConnell from four Republican senators in states that have expanded Medicaid -- Portman, Capito, Gardner and Murkowski -- warning that the repeal bill should provide "stability" for beneficiaries of the expansion.

Still, perceptions of the way things are likely to fall out change quickly. Leadership in both the House and Senate have declared they want to move quickly -- McConnell indicating he'd give the House bill a quick floor vote in the Senate, though later half-walking that back. Underlying the process is the enormous pressure Republicans have built under themselves over seven years to rip the ACA apart. If the bluster from the far right about faux repeal blows over, the moderates defending Medicaid could go wobbly. In fact, they've left themselves space to. Look at the language with which they've "defended" the expansion (my emphasis):

What would it cost a state to offer something like Medicaid to all its uninsured?

At healthinsurance.org, I look back at a state-wide proposal to create what I've called an "all-public option" for the ACA -- that is, an exchange in which all the insurers operate like Medicaid managed care companies, paid directly  by government. Here I want to outline a few factors involved in funding such a plan.

Here's the basics from the healthinsurance.org post:

In November 2009, before the ACA was passed, a New York nonprofit, Community Service Society, produced a plan for the state that would have done just that -- and then some, as it would have given employers the option of buying in. (In 2013, CSS produced a plan outline and cost estimate for the state's BHP that did a good job scoping out the costs and target population as it actually played out, )

Authored by  Elisabeth Benjamin, CSS's VP of health initiatives, and Arianna Garza, the Cornerstone for Coverage Plan  would have used New York Child Health Plus plan (CHP), which was the prototype for the national Children's Health Insurance Program, as the building block of a low-cost public program available not only to the uninsured but to the underinsured. Here is the core proposition:

A More Affordable Care Act? Some states may make it so

I have a post up on healthinsurance.org about current and possible future state initiatives to sweeten the benefit pot (though it doesn't address the subsidy bump-ups provided by Massachusetts and Vermont).  Here's the first section:

Remember the public option? It was a linchpin of early Democratic health reform blueprints for what became the Affordable Care Act. The health insurance marketplace would be anchored by a government-run health plan that would work to keep costs low and make coverage as comprehensive as possible. Private insurers in the marketplace would have to compete against it.

The insurance industry lobbied hard against the public option, and the most conservative Democratic senators killed it. (Every Democratic vote was needed to pass the law, because Republicans rejected it en masse.)

When the ACA passed without a public option in 2010, some observers speculated that Congress might come back to establish one at a later point, if competition among private insurers proved a force too weak to keep coverage affordable. But that is clearly not going to happen on a national level with Republicans in control of Congress.

There is one way a public option could become a reality in fairly short order, however. The ACA didn’t create one market for health insurance, but rather 51 markets – one for each state plus the District of Columbia. And states have considerable freedom to shape their insurance markets, should they wish to seize it. “Nothing in the ACA stands in the way of a state creating a public option,” notes Larry Levitt, senior vice president for special initiatives at the Kaiser Family Foundation.

Republican conundrum: Can the federal government subsidize private health insurance without regulating it?

Two moderate conservatives, neither of them averse to a federal effort to make health insurance affordable for all Americans, walk into a conference session and disagree about likely Republican behavior should the Supreme Court rule for the plaintiffs in King v. Burwell, thus cutting off subsidies for some eight million Americans who bought their health plans on healthcare.gov.

This happened earlier this month at the Health Insurance Exchange Summit in Washington, D.C. The disagreement was between Stuart Butler, a longtime Heritage Foundation scholar now at the Brookings Institute, and Christopher Condeluci, who was tax and benefits counsel to the Senate Finance Committee while the ACA was being drafted.

Butler, generally considered the father of the individual mandate (though he has renounced his brainchild and its bastard stepchild, the ACA), kicked off the session by sketching out a post-King settlement that he hoped might lead to a "kumbaya moment" and win 400 votes in the House.  That settlement would build on the ACA's existing "innovation waivers," provided in Section 1332, which empower states to propose alternative schemes that meet the ACA's coverage and affordability goals by different means.

Section 1332 puts everything up for grabs -- the individual and employer mandates, health plan coverage rules, exchange structure, and subsidy allocations. Since alternative schemes must meet ACA standards for coverage and affordability, however, Republicans complain that Section 1332 takes away with the left hand the freedom it proffers with the right. Butler proposed that in a post-King negotiation Republicans and Democrats might negotiate a "superwaiver" process that would loosen the ACA standards and lighten HHS oversight while also moving up the timeline -- at present, approved state proposals can't take effect until 2017.

Condeluci, who has said that Republicans on the Senate Finance Committee had signed off on 80% of the bill that eventually became the ACA, agreed that Republicans post-King would look to "1332-like" alterations to the ACA. But he said that Republicans would not accept the waiver structure as a framework. Instead they would invite states to opt into a Republican alternative that would include repeal of the individual and employer mandates as well as of the essential health benefits that every plan qualified under the ACA must provide.

Afterward, I asked Condeluci whether the plan he envisioned would give states free reign to take federal subsidy money and reorder their insurance markets as they saw fit, or rather to opt into a prepackaged Republican scheme that would lay out new coverage rules. He said, in effect, either/or. His answer spotlights an important...let's call it tension in Republican thinking about healthcare reform.

A modest post-King proposal

Political science blogger Jonathan Bernstein is one King v. Burwell watcher who does not discount the likelihood that Republicans in Congress will come under intense pressure to keep the subsidies flowing through healthcare.gov if the Supreme Court rules for the plaintiffs, Knowing this, I was nonetheless a bit surprised to read this morning that he thinks a more or less unconditional Republican surrender is a real possibility.

Imagine, Bernstein writes, that Republicans write a bill restoring the subsidies along with a poison pill like repeal of the individual mandate, and Obama vetoes it. What then? With most GOP senators and House reps wishing the "opportunity" to throw 8 or 9 million people off their insurance plans to go away, the party could swing either way:

We've seen similar cases in the last Congress: Republicans eventually decided to allow Superstorm Sandy relief and the Violence Against Women Act to pass, while they never permitted votes on a comprehensive immigration plan or on a bill prohibiting employer discrimination based on sexual orientation or identity. In each case, most Republicans wanted to oppose the measure in the event of a vote, though there were enough votes to pass it anyway. The question was whether enough Republicans wanted the legislation to pass while publicly voting "no." And they probably didn't know what they would do until the situation played out.

And here's his call;

My guess is that if this does happen (the court may, and should, rule the administration has read the health-care law properly), Republicans would be under heavy pressure to allow a simple fix to pass, and would probably give in. But it's hardly certain.

I think there's a third possibility: with both sides under heavy pressure and public opinion as to who's to blame hanging in the balance, Republicans might settle for amending the ACA in a conservative direction without destroying it. (See Michael Leavitt, Bush Jr.'s HHS Secretary, on this.) But how much amendment would be enough to satisfy the wrath of the party's base?

Here's one possibility: detoxify Bernstein's poison pill a bit. Give each state the option of repealing the individual mandate.

How conservatives might amend (rather than destroy) the ACA

The Affordable Care Act is by any rational assessment a conservative plan to expand access to healthcare -- relying in large part on private insurance and competition, devolving oversight and insurance industry supervision to the states, and imposing fiscal 'responsibility' on individuals with incomes as low as 138% of the Federal Poverty Level to contribute to the cost of their healthcare.

Yet conservatives complain bitterly that the private market is not free (i.e., to exclude benefits now deemed 'essential'); that the states are commanded to administer within a federal straitjacket; that the employer mandate will choke off job growth; and that the individual mandate is an unconstitutional impingement on personal liberty.

Looking back at a year of blogging about the ACA's increasingly successful implementation, it occurs to me that I've addressed three possible changes to the law that could reasonably be called conservative. Two increase viable consumer choice within the exchanges; one takes seriously the possibility of replacing the individual mandate, and one would loosen or perhaps partially replace the employer mandate.

Here they are:

Michael Cannon gives the game away, cont.*

The Halbig plaintiffs and their allies would have you believe that the titanic struggle in the Supreme Court in 2012 over the constitutionality of the ACA's individual mandate was a fight over nothing. Or, alternatively, that the government had a bulletproof defense of the law's constitutionality that it inexplicably left on the table.

According to the Halbig plaintiffs, the ACA's framers deliberately barred any exchange established by the federal government from crediting subsidies to qualified buyers of health plans offered on the exchanges. Only an exchange "established by a state can do that. Thus, the ACA could only function in a state that established its own exchange.  The law's creators and proponents have been protesting for three years that this claim is preposterous on its face, as a federal exchange would be worthless without the ability to credit subsidies, but that is the suit's  contention.

Michael Cannon gives the game away

Cato's Michael Cannon, a mastermind behind Halbig, has made much of video clips in which ACA architect Jonathan Gruber seems to suggest that states that do not build their own exchanges might forgo their citizens' access to the tax credits subsidizing coverage. Gruber has since claimed that the assertion was a verbal slip, and that he probably meant to suggest (at a time when no one expected states to abstain from building their own exchanges) that a federal "backstop"  might not be in place in time for the first open season.

That's how I understood Gruber when I listened to the first unearthed clip (at minute 31). But Cannon isn't buying it. He's going for the perceived jugular,  claiming proof that the ACA's framers (with whom Gruber worked closely) intended to make the whole ACA machinery dependent on state action:

The problem with his explanations is that Jonathan Gruber doesn’t “flake.” He knows this law in and out. He knew what his words meant, with all their implications, when he spoke them. He knew the feature he was describing essentially gave each state a veto over the PPACA’s exchange subsidies, employer mandate and to a large extent its individual mandate. He knew that could lead to adverse selection. To claim Gruber didn’t know what he was saying is as absurd as saying a conductor might fail to notice that the brass section suddenly stopped playing.

As Cannon asserts, if only the state exchanges can grant subsidies, the individual mandate is all but inoperative in states relying on the federal exchange, because insurance will be unaffordable for most of the state's uninsured, exempting them from the mandate.

If that is the case, the flagship suit against the ACA's constitutionality decided by the Supreme Court in June 2012, NFIB v. Sebelius, is moot, because the ACA effectively imposes no federal individual mandate, only state ones.

Michael Leavitt on State-level healthcare reform

Beneath the furious passions aroused by the Affordable Care Act lurk broad areas of bipartisan consensus regarding healthcare reform in the United States. Lawmakers in both parties want to move payment for healthcare away from fee-for-service and toward managed care, "bundled" payment by the patient or treatment episode, and risk-based payment, in which providers are rewarded for keeping costs under target and penalized for exceeding it. Both parties also accept the premise that high deductibles and co-pays help control costs -- with lip service at least usually paid to giving patients viable choices by providing information about providers' pricing and quality.

The bipartisan zone is mapped out in a report produced under the auspices of the University of Virginia's Miller Center by a commission co-chaired by Michael Leavitt, former Republican Governor of Utah and Secretary of Health and Human Services under George W. Bush, and Bill Ritter, former Democratic governor of Colorado. Cracking the Code on Healthcare Costs, released in January 2014, focuses on the role of state governments in containing healthcare costs while improving delivery, emphasizing that states have powerful levers on both fronts.  Those levers include administration of Medicaid, state employee health programs, and the state health exchanges established by the ACA, as well as the state regulation of insurance mandated by US law and "state laws affecting market competition and consumer choice, such as antitrust enforcement and requirements for providers to report price and quality information."

The report's working assumption is that, Republican cries of "federal takeover of healthcare" notwithstanding, both the ACA and existing Medicaid rules afford governors and state legislators and administrators ample scope to shape the healthcare markets in their states. Key recommendations include setting annual overall state spending benchmarks, as Massachusetts has done; promoting "coordinated, risk-based care to the disabled and dual-eligible population" -- the most expensive Medicaid beneficiaries; and also promoting coordinated, risk-based plans in the ACA exchanges -- as well as pricing transparency and quality ratings for participating plans.

ACA is here to stay

Does the ACA significantly constrain state innovation, or encourage it? I spoke about current and potential state efforts to transform healthcare delivery with Michael Leavitt and with Professor Raymond Sheppach, project director for Cracking the Code, whose comments I'll relay in a followup post.