How the Trump administration handled the ACA marketplace, Part 1

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In the wake of Trump’s vow to repeal the ACA if elected, Larry Levitt, Kaiser Family Foundation, outlines the former president’s past and purported future healthcare agenda.

One of Trump’s biggest political failures as president was his inability to persuade Congress to repeal the Affordable Care Act (ACA). However, the Trump administration did make significant changes to the ACA, including repealing the individual mandate penalty, reducing federal funding for consumer assistance (navigators) by 84% and outreach by 90%, and expanding short-term insurance plans that can exclude coverage of preexisting conditions. And, the Trump administration supported an ultimately unsuccessful lawsuit to overturn the ACA.

In one of the stranger policy twists, the Trump administration ended payments to ACA insurers to compensate them for a requirement to provide reduced cost sharing for low-income patients. At the time, Trump said this would cause Obamacare to be “dead” and “gone.” But, insurers responded by increasing premiums, which in turn increased federal premium subsidies and costs to the federal government, likely strengthening the ACA.

In the current campaign, Trump has vowed several times to try again to repeal and replace the ACA, saying he would create a plan with “much better health care.”

Trump certainly meant harm to the ACA. His comments in the wake of abruptly cutting off direct reimbursement of insurers for the value of Cost Sharing Reduction, cited by Levitt above, show his intent, as does his pressure on Republicans in Congress to pass legislation gutting its core programs. Should Trump regain the presidency, there is no question that he will pursue the agenda that Levitt outlines in his conclusion, including the ACA-related parts:

Trump’s record as president from 2017 to 2021, combined with recent comments on the campaign trail, suggest he would pursue policies to weaken the ACA, reduce federal spending on Medicaid, restrict access to abortion and family planning, and scale back benefits for immigrants if reelected as president in 2024.

Moreover, should Trump regain the presidency, he would lead a Republican party even more subservient to his will than in his first term. A Republican Congress would almost surely roll back the ACA Medicaid expansion and impose sharp spending caps on surviving Medicaid programs, as well as deregulating and largely defunding the ACA marketplace, as failed Republican legislation aimed to do in 2017. Should Democrats control one or both houses of Congress, an HHS Department filled with MAGA partisans, in line with plans currently being laid by well-funded right-wing organizations like the Heritage Foundation to root out technocratic expertise and install Trump loyalists at every level in all federal departments, would doubtless pull out all stops to undermine the marketplace and reduce Medicaid enrollments.

In Trump’s first administration, his appointments to HHS and CMS also were hostile to the structure of the ACA marketplace and the Medicaid expansion. Most notably, CMS administrator Seema Verma encouraged states to impose work requirements on “non-disabled, working age Medicaid enrollees — with some success, although the measures were largely checked by the courts. She also pushed states to conduct more frequent income and eligibility checks on Medicaid enrollees, encouraging the kind of procedural disenrollments (often of people who never received demands for information) now plaguing the post-pandemic Medicaid unwinding. '

But Verma and HHS Secretaries Tom Price and Alex Azar were also more constrained by conventional political incentives and the needs of corporate, state and individual constituents than their successors in a second Trump administration would likely be. The administration’s record with respect to ACA marketplace administration was mixed. Some measures harmed product quality and enrollment; some measures boosted enrollment and retention.

Blue waivers! Synthetic silver loading, anyone?

First the bad news: Seema Verma's CMS has invited states to undermine guaranteed issue and comprehensive coverage in their ACA marketplaces, floating four "waiver concepts" that converge on one idea: subsidizing medically underwritten, lightly regulated insurance.

Now the good news: CMS has invited states to be creative. Blue states might think about taking up the offer to redesign the ACA marketplace subsidy structure. Those states, however, will want to stay within the statutory "guardrails" for ACA Section 1332 innovation waivers that recent Trump administration guidance seeks to, um, wave away: provide coverage as comprehensive and affordable to as many people as does the existing marketplace design, without increasing the federal deficit.

The financial constraint -- deliver better benefits without spending more money -- has rendered Section 1332 something of a Catch-22 for states aiming to maintain a private market in which plans offer comprehensive coverage without regard to applicants' medical history.

But Trump's October 2017 cutoff of direct  reimbursement of insurers for Cost Sharing Reduction (CSR) and the resulting "silver loading" -- pricing CSR into silver plans only, since CSR is available only with silver plans -- has created a windfall that might be leveraged if CMS plays by Section 1332 rules. (See note below if you're unfamiliar with how silver loading works.)

Silver loading has inflated subsidies as well as premiums and created discounts in bronze and gold plans benefiting some two million enrollees, boosting enrollment and partially offsetting other forms of Trump administration sabotage. CBO estimates the cost to the Treasury at $194 billion over ten years. But the benefits have been haphazard and inefficiently distributed. Via waiver, perhaps a state could make better use of its share.

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.