ACA Ok? Once again, Chief Justice Roberts seems to dismiss an argument from intent

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In his June 2015 decision disposing of King v. Burwell, the last lawsuit before the presenting pending one seeking to cripple the Affordable Care Act, Chief Justice Roberts summarily disposed of the plaintiffs' patently fraudulent argument about Congressional intent. 

The suit was based on a drafting error. While the law envisioned states forming their own health insurance exchanges, but gave them the option of deferring to a federal exchange, key provisions referred only to "an exchange established by a state" as the vehicle for allocating premium subsidies to enrollees. The error was a biproduct of the political warfare that affected the ACA's drafting history, preventing an ordinary reconciliation of Senate and House versions.

Recognizing that spotlighting a drafting error would not suffice to convince the courts to cripple the ACA marketplace, the plaintiffs argued that the omission was no error. They claimed that while Congress intended to authorize state-based health insurance exchanges to grant premium subsidies to qualifying enrollees, Congress intended not to authorize the federal exchange to grant those subsidies. (At the time the suit came before the Supreme Court, 37 states were relying on the federal exchange, HealthCare.gov.) Testimony by those involved in the law's creation was unanimous that no one intended to bar the federal exchange from awarding premium subsidies.

Writing for a 6-3 majority, Roberts' disposed of the intent question thusly:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. 

Improving the ACA under gridlock, Part II: Innovation waivers and new revenue sources

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Earlier this week I reviewed the many ways a Biden administration might improve healthcare access and affordability by administrative action, on the assumption that with a Republican Senate majority, major legislation to improve the ACA or revolutionize drug pricing is off the table. The laundry list was courtesy of Elizabeth Warren, except for a final item, maximizing silver loading, would likely have the largest impact on the ACA marketplace.

Now let's think about another non-legislative means by which insurance coverage might be boosted: the ACA Section 1332 innovation waivers available to states. 

Under these waivers, states can propose to change almost any aspect of ACA marketplace coverage -- subsidy structure, metal level, essential health benefits, employer mandate -- in an effort to improve affordability and access. There are tight constraints, however: the proposed alternative must  provide coverage as comprehensive and affordable to as many people as does the existing marketplace design (or rather, will again, with CMS director Seema Verma gone), without increasing the federal deficit. 

That fiscal constraint amounts almost to a Catch-22, as the requirement not to boost spending is on an absolute, not per capita basis. If the state's changes boost enrollment, even while reducing cost per person, the state must foot any excess spending.

I have reviewed potential state innovations many times, e.g., here and here (one major option for states to consider, a Medicaid-like Basic Health Program for enrollees with incomes up to 200% FPL, is enabled by a different ACA provision, Section 1331).

Here I want to focus not on potential alternative schemes themselves, bur rather on fiscal opportunities that have opened up for states in the Trump years and that potentially make waivers more viable. By both accident and design, the federal government has put new money on the table.  Potential revenue sources include:

Trump's corrupt schemes didn't help him -- but they didn't hurt him either

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Some time in the night, I found myself thinking about this claim of Greg Sargent's, which I found clarifying when it was published on October 7:

When you step back and survey the last two years of U.S. politics, one of the biggest story lines that comes into view is this: One after another, a whole string of deeply corrupt schemes that President Trump has hatched to smooth his reelection hopes have crashed and burned.

The "corrupt schemes" run from attempting to extort a bogus investigation of Biden from the Ukrainian president to trying to retail the same Biden smears in U.S. media to a retaliatory investigation of those who conducted the investigation of Russian influence to siccing federal troops on protestors to sabotaging the Post Office, smearing vote-by-mail and promising legal challenges against full vote counts.

While it's true that all of these schemes have failed (so far), it's also true that none of them hurt Trump's standing much. His support is pretty much where it was in November 2016. 

A healthcare reform plan for Joe Biden with a Republican Senate

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If, as seems likeliest but by no means certain, we have a President Biden and a retained Republican majority in the Senate, the ACA's core programs are likely to limp along fully funded but not radically improved.

Biden had proposed major reforms to the ACA, including: 1) establishing a public option, 2) allowing those with access to affordable employer-sponsored insurance to buy in to the marketplace on a subsidized basis, 3) capping premiums for a benchmark plan at a maximum 8.5% of income, with no income cap on subsidy eligibility, 4) boosting subsidies at every income level, and 5) offering free marketplace coverage to low income people in states that refused to enact the ACA Medicaid expansion.

None of that is likely to happen. At best, Biden may be able to convince McConnell to render moot Texas v. California, the case before the Supreme Court seeking to have all or part of the ACA declared unconstitutional on patently fraudulent grounds, by either repealing the individual mandate or raising the penalty to $1. 

There's much that can be done to improve the ACA -- and the entire U.S. healthcare system -- administratively, however. And we have a blueprint -- provided by an indefatigable and aggressive reformer with administrative smarts: Elizabeth Warren.

You may recall that during the campaign, Warren jumped through some convoluted hoops to straddle the gap between Medicare for All and more incremental (though still sweeping) and swiftly achievable reform.  

To that end, she released a transitional plan for her prospective first term as president last November. What's relevant now: a sweeping set of proposed administrative actions.  They include:

If Republicans had succeeded in ACA repeal in 2017: state snapshots

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Last week, David Anderson, Louise Norris and I looked at how many more Americans would be uninsured if the Republican effort in 2017 to "repeal and replace" the ACA's core programs had succeeded, as it very nearly did (90% of Republicans in Congress voted for the main House or Senate bills). 

"Repeal and replace" was a misnomer: the Republican bills would have established an inadequate replacement for the marketplace -- but simply ended the ACA Medicaid expansion, which has had more impact. According to CBO projections, the repeal bills would have reduced Medicaid enrollment by 8 to 9 by this year, and by 14-15 million as of 2024, when the phase-out of enhanced federal funding for the expansion population would be complete. With the expansion intact, Medicaid enrollment has increased by about 8 million during the pandemic. Enrollment by those specifically rendered eligible by the ACA has increased by about 20% since February.

We also prepared several state-specific versions, as frankly we were apparently caught in a pre-election op-ed tsunami and couldn't quickly place the original.  Below, I've pasted state-specific outtakes.

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Pennsylvania

In Pennsylvania, as the repeal bills were being voted on, 754,000 Medicaid enrollees owed their eligibility to ACA expansion criteria. All would likely have lost Medicaid coverage had repeal passed...

...in February 2020, just before the pandemic caused economic havoc, 12 million adult Medicaid enrollees were rendered eligible by the ACA, and 9.2 million enrollees in the ACA private plan marketplace received federal subsidies that paid for an average of 76% of their premiums. In Pennsylvania, 267,000 marketplace enrollees were subsidized as of February...

[Re Medicaid enrollment during the pandemic] By June, according to the Center for Medicare and Medicaid Services, Medicaid enrollment had grown to 75 million — an increase of 4 million since February. Enrollment growth has continued throughout this pandemic. It is likely now stands at 78 million. In Pennsylvania, enrollment increased by 178,000 from February through July. 

Michigan

Both the AHCA and the BCRA would have sharply reduced the ACA's premium subsidies in the individual market for health insurance and would have rendered the available coverage virtually unusable for millions of low-income enrollees by eliminating the ACA's Cost Sharing Reduction subsidies – currently accessed by 96,000 Michiganders, while 212,000 receive federal premium subsidies that pay for an average of 76% of their premiums...

In Michigan, 800,000 current Medicaid enrollees owe their eligibility to ACA expansion criteria. All would likely have lost Medicaid coverage had repeal passed. Since the pandemic started triggering massive job loss, Medicaid enrollment enabled by the ACA expansion  has increased by 20 percent. None of the 130,000 “expansion” enrollees who have gained coverage in Michigan since this past February would have been eligible had the 2017 repeal effort succeeded.

Illinois

In Illinois, 273,000 marketplace enrollees were subsidized as of February 2020, while more than 631,000 current Medicaid enrollees owe their eligibility to ACA expansion criteria. More than 500,000 of them would likely have lost Medicaid coverage had repeal passed...

Both the AHCA and the BCRA would have sharply reduced the ACA's premium subsidies in the individual market for health insurance and would have rendered the available coverage virtually unusable for millions of low-income enrollees by eliminating the ACA's Cost Sharing Reduction subsidies, currently received by 118,000 enrollees in Illinois.

*          *          *

Complete nullification of the ACA via the patently fraudulent Texas v. California suit, brought by 20 Republican attorneys general and governors  and now before the Supreme Court, is current Republican policy, urged by the Trump administration (at Trump's insistence). Success would increase the ranks of the uninsured by 23 million, according to an estimate by the Center for American Progress. Charles Gaba, who assisted in the analysis, has broken out projected losses by Congressional district.

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What if Republicans had succeeded in repeal of the Affordable Care Act?

I've teamed up with friends for this final pre-election reminder of what the Republican healthcare agenda is really all about.

By Andrew Sprung, David Anderson and Louise Norris

On November 10, the Trump administration will ask the Supreme Court in oral argument to declare the Affordable Care Act unconstitutional – and nullify the law in the midst of a pandemic, uninsuring an estimated 23 million people. As Republicans rushed to confirm the nomination of Amy Coney Barrett to the Supreme Court, Senate Majority Leader Mitch McConnell  asserted that “no one believes” the Court will strike down the law – implying, as many hard-pressed Republican incumbents have also implied, that Republicans have no wish to do so.

But ACA repeal has been Republican policy since President Obama signed the bill into law in March 2010.  In 2017, a Republican House and Congress came within a whisker of repealing the ACA’s core programs, and 90% of Republicans in Congress voted for repeal. Where would be now if they had succeeded? How many more Americans would be uninsured, and what options would be available to the millions who have lost job-based coverage since the pandemic reached our shores? 

A narrow look at the broad middle of the ACA marketplace

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 This is a rather unilluminating post.  Are you still here?

I have been expecting to see more discounts in gold plans this year than in prior years, given CMS's report showing that lowest-cost gold plan premiums in 20201 are down an average of 6% from the year prior, while lowest-cost bronze and silver plans are down just 1%.  Yesterday's sampling of premiums in the 10 counties with the highest enrollment nationally offered some evidence in favor, albeit with really cheaply gold concentrated mostly in Texas' largest markets, Harris County (Houston) and Dallas.

As a followup, I took a look at middling markets -- literally: zip codes where enrollment was at the median for all 27,365 zip codes in the U.S. That is, 13 zip codes that each had 239 on-exchange enrollees. These markets are scattered through the country's broad middle (four were in Tennessee, but the plan offerings varied considerably among them). Population ranged from 3800 to 11,300.

The one consistent pattern was an increase in participating insurers -- often resulting in higher premiums for lowest-cost plans. Market watchers know that new competition is more likely to weaken discounts for subsidized enrollees than to improve them, and that's the case here (though new entrants may provide important new options where provider networks are concerned).  On average, lowest-cost bronze and silver premiums for subsidized enrollees in these markets rose from 2020 to 2021. Lowest-cost gold was all over the map, but also rose a bit.

Cheaper gold in the ACA marketplace's high-enrollment counties

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Last week, CMS reported that in 2021, average premiums in HealthCare.gov states are dropping for the third straight year. I noted that since lowest-cost gold plans were dropping an average of 6%,  compared to a 1% drop for lowest cost silver and bronze, we should see steeper discounts in gold plans this year. 

Perhaps, that is, the markets will move a bit closer to the gold-cheaper-than-benchmark-silver norm envisioned by the prophets of silver loading prior to Trump's cutoff of direct CSR funding in October 2017 (see this post for an explanation). 

That appears to be the case, to judge by premium changes in the ten U.S. counties with highest marketplace enrollment in 2020. Enrollment in these 10 counties accounts for 17% of all enrollment nationally.

In NJ Spotlight News: "Happy Launch, GetCoveredNJ: Don’t Forget NJ FamilyCare"

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In New Jersey Spotlight News, I put in a plea that New Jersey's new state-based exchange GetCoveredNJ, and the coming "get covered" outreach during Open Enrollment, give due emphasis to Medicaid:

GetCoveredNJ and state officials should avoid repeating a mistake endemic to state exchanges: overemphasizing the private-plan marketplace at the expense of Medicaid (NJ FamilyCare)...

From the ACA’s passage in 2010 to the present, the private-plan marketplace has sucked up all the political passion. But the Medicaid expansion has insured far more people who would otherwise be uninsured. In New Jersey, as of September, 597,000 enrollees in NJ FamilyCare were rendered eligible by ACA criteria. About 175,000 New Jerseyans were subsidized in the private-plan marketplace...

Gov. Murphy and the state Legislature have used financial judo to fund improvements in the state’s health insurance marketplace, capturing funds that previously went to the federal government to finance enrollment assistance, advertising and supplementary subsidies. To best protect New Jerseyans from becoming uninsured during the current crisis, however, they need to focus equal energy on maximizing Medicaid enrollment.

We all have our hobbyhorses...  here again is the full article in NJ Spotlight News.

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September update: ACA Medicaid expansion enrollment up 19% since February in 16-state sample

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Time for an update on "expansion" Medicaid enrollment in the pandemic months -- new enrollees since February rendered eligible by ACA expansion criteria. That is, adults with household income below 138% of the Federal Poverty Level who are not blind or disabled or eligible according to other pre-ACA criteria.

In 16 states that have reported expansion-category enrollees through September, enrollment in this category is up 19.2% since February, and 1.9% since August. That points toward perhaps 2.9 million new enrollees in this category -- minus perhaps 400,000 in California, which has had mysteriously weak Medicaid enrollment growth in the pandemic. A bit more than 2 million have likely been rendered "newly eligible" by the ACA.  See the previous post on pandemic expansion enrollment for details.

Pandemic Medicaid "expansion" enrollment in 16 states
February through September 2020

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ACA marketplace 2021: Cheap gold proliferates

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In October 2017, when Trump cut off direct federal reimbursement of ACA marketplace insurers for the Cost Sharing Reduction subsidies they are obliged to provide to low income enrollees who select silver plans, he boasted that he'd destroyed Obamacare. The likely effect, however, had been anticipated at least since January 2016: inflated silver premiums triggering deep discounts in bronze and gold plans, stimulating enrollment. 

Briefly: CSR raises the actuarial value of a silver plan from its baseline 70% to 94% for enrollees with incomes up to 150% of the Federal Poverty Level and to 87% at incomes from 150-200% FPL. Gold plan AV is 80%. When CSR, available only with silver plans, is priced into silver plan premiums, that inflates subsidies, which are set to a silver plan benchmark and designed so that the enrollee pays a fixed percentage of income. That creates discounts for subsidized buyers in bronze and gold plans.

The prophets of silver loading, however, expected deeper discounts in gold plans than we've gotten so far. Here's what Linda Blumberg and Matt Buettgens of the Urban Institute anticipated in January 2016:

In addition, as discussed, the increase in silver plan premiums means that the premium for silver plan (70 percent actuarial value) coverage becomes higher than the premium for gold plan (80 percent actuarial value) coverage. This means that individuals above 200 percent of FPL can obtain higher-value plans at a lower cost if they shift from silver to gold plans. Consequently, virtually all tax credit–eligible individuals with incomes above 200 percent of FPL move to gold plans; their tax credit, computed using the second-lowest-cost silver plan, goes further when used for a gold plan.

New Jersey's new state-based ACA marketplace subsidies *rise* with income

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The "preview plans and prices" tool on New Jersey's spanking new state-based ACA exchange, GetCoveredNJ,  is live for 2021. The tool works well -- you can punch in ages and income and get results in short order. The results come with a surprise.

The new state-based supplemental premium subsidies (tacked onto federal subsidies for enrollees with incomes up to 400% of the Federal Poverty Level) average $578 per person per year ($48/month), as Governor Murphy announced this week. The key word here is "average." The new subsidies are not flat. In direct contrast to federal subsidies, they rise with income. 

For a single individual with an annual income of $19,000, a hair below 150% FPL, the state supplement is $20/month. At an income of $25,000 (just below 200% FPL), that rises to $30/month.  At $38,000 (just under 300% FPL), it's $95/month. That's the maximum, available at a solo income up to $51,040 (400% FPL).

That may seem counterintuitive, as enrollment losses in New Jersey's individual market, which have been steep, are especially concentrated at lower incomes, as illustrated below. 

Estimate: Total Medicaid enrollment stands at 78 million

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Update, 10/24/20: September totals added for IN, MD, ME, MI, MO, NV and UT. I also had to correct misallocated months in Kansas.
-----

Enough Medicaid enrollment data is in for September to venture an estimate that total Medicaid enrollment now stands at 78 million, up by about 7 million or 10% since February. 

In 13 states with total enrollment of about 24 million, enrollment rose 1.3% from August to September, roughly in line with recent month-to-month increases.  As in previous months, California will probably drag down the total, perhaps to 1%.

Please see this post for the assumptions behind my August estimate of 77.3--77.6 million, further updated here. Note that the August total for Illinois is still estimated, based on increases in prior months. Any error there would have a negligible effect on the total.

Job losses and the uninsured rate in the pandemic: A one-state snapshot

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Let's try a somewhat ambiguous one-state snapshot -- in New Jersey, my home state --  of the extent to which ACA programs may have blunted an increase in the uninsured population during the months when Covid-19 triggered huge increases in unemployment. 

According to the New Jersey Department of Labor, job losses due to the pandemic peaked at about 835,500 and stood at 426,110 as of August. Estimates of the ratio between the number of people losing jobs and the number losing insurance vary quite a bit, and the ratio probably varies quite a bit by state, depending on the types of jobs lost. The pandemic created novel conditions, in which a fair number of workers were furloughed and were able to keep their job-based insurance, at least for a while. 

In New Jersey, as in most states that enacted the ACA Medicaid expansion, Medicaid is the primary safety net for the newly uninsured.  Enrollees rendered eligible by the expansion -- adults with incomes up to 138% of the Federal Poverty Level -- are driving rapid growth in Medicaid enrollment in the state. Here's the story since February: 

Medicaid Enrollment Growth in New Jersey in the Pandemic

Coverage group	Feb 2020	Sept 2020	Increase Feb-Sept	% increase Feb-Sep
ACA expansion adults	510,850	597,002	86,152	16.9%
Non-ABD children	773,544	835,543	61,999	8.0%
All Medicaid	1,682,621	1,853,928	171,307	10.2%

Source: NJ FamilyCare Monthly Enrollment Statistics

ACA marketplace enrollment in Covid-19 season: Flat? Up a million? Both?

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 As millions of Americans lose job-based health insurance during the pandemic months, Medicaid, bolstered by the ACA Medicaid expansion, has served as a far more potent protection against becoming uninsured than the ACA marketplace, for several reasons:

1. As family incomes crash, about twice as many newly unemployed and uninsured become eligible for Medicaid as for subsidized marketplace coverage, according to Urban Institute calculations (2.4 times as many in expansion states; 1.6 times as many in nonexpansion states).  Medicaid eligibility is determined on a current monthly basis, while marketplace subsidies are calculated on the basis of estimated annual income.


2. The emergency extra $600/week unemployment insurance provided for up to four months (now expired) by the CARES Act does not (did not) count with respect to Medicaid eligibility, but did count in calculation of marketplace subsidies, severely weakening them (it continues to count, since the relevant measure is annual income).

Estimate: Between 42 million and 50 million people have enrolled in ACA-compliant plans since 2014

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While only about 5% of the nonelderly U.S. population is insured through the ACA-compliant individual market for health insurance, a far larger percentage of us are likely to access the market at some point in our lives (if it survives). At healthinsurance.org, I've estimated that between 42 million and 50 million people have accessed the ACA marketplace since its launch in January 1, 2014.

I've referred readers of that post here for more explanation of the basis of that estimate. CMS does not provide a simple count, yearly or cumulatively, of unique enrollees at all times and venues: during the annual Open Enrollment, via Special Enrollment Period year-round, and off- as well as on-exchange. So here is what I have pieced together:

1. New enrollment on-exchange during Open Enrollment

In its reports and Public Use Files tallying annual marketplace enrollment, CMS breaks out the number of new enrollees (as opposed to renewals). Each year, after reporting on total signups during the Open Enrollment period, CMS later reports on effectuated enrollment  -- that is, the number of enrollees who have paid their premiums. Effectuated enrollment at its peak each year has averaged about 89% of initial signups.  In the right column below, I have estimated effectuated new enrollment in each year and in total.

Total New ACA marketplace enrollment, 2014-2020

    Source: CMS Public Use Files (see note at bottom for adjustments)

From 2014 through this year, approximately 27.7 million people have purchased plans during the annual Open Enrollment period and paid their first premiums, effectuating coverage ("approximate" because I'm applying the overall effectuated percentage to the new enrollees specifically).  Some "new" enrollees may have dropped out and returned.

Medicaid enrollment (likely) up 9% since February

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As my post tracking pandemic Medicaid enrollment through August has gotten rather clotted with updates, I've posted the totals afresh below.

The big addition is California. The state has adjusted its August tally to a slight increase, in line with those of prior months, which have also been adjusted.  I am using the raw totals from the state database of certified eligibles. California's adjusted totals show a slightly bigger increase than previously, but still well below national averages, a mystery examined here. Adding California pulls down the 32-state increase from February through August by 1.7 percentage points.

For context and discussion of some data issues, such as how I reconcile states that report monthly totals  as of the beginning or end of each month, please see the prior post. In particular, the most recent update at the top of that post explains the basis of my estimate that Medicaid enrollment nationally is somewhere between 77.3 million and 77.6 million as of August, based on what's now a 32-state sample below. 

In brief, the 51-state enrollment increase from February thru August is probably about 9%. Nationally, Medicaid enrollment is now about 37% higher than it was in the third quarter of 2013, the pre-ACA point of comparison.

As the chart text was getting rather small, I've removed columns providing info about the programs each state tracks and the extent to which their tracking matches CMS's. See note, and chart with those columns retained, at bottom.

Trump's healthcare plan, revealed

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Let it not be said that Trump doesn't have a healthcare plan. It's this:

• Defund the ACA marketplace and Medicaid expansion
• Strangle Medicaid long-term via block grants or per capita caps
• Privatize Medicare

Oh right, that's the healthcare plan of the entire Republican Party.  

I have a post up on the BlueWaveNJ that lays this program out:

Estimate: ACA Medicaid expansion enrollment has increased by more than 2 million in the pandemic

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Ever since I was a child -- okay, ever since the ACA was a child -- I've been reading that 12 million Medicaid enrollees were rendered newly eligible by the ACA Medicaid expansion, which extended eligibility to adults with incomes up to 138% of the Federal Poverty Level (e.g., $1468 per month for an individual, $1303/month for a family of four). That's been the case since July 2016, rounding up from 11.6 million at that point. In June 2019, the last month tallied by CMS, enrollment of the "newly eligible" stood at 12.0 million.

A larger number -- 15.3 million in June 2019 -- are rendered eligible by ACA criteria and not by standard pre-ACA criteria. But 3.3 million of them are in states that had expanded adult eligibility to at least 100% FPL pre-ACA*. The federal government pays the ACA's enhanced "match rate" of 90% of costs for this larger group, classified as Group VIII.

Nationally, total Medicaid enrollment shrank by about 5% from early 2017 to early 2020.  Then came the pandemic.  As the economy crashed, Medicaid enrollment surged. It has probably increased by more than 6 million from the end of February through August. Here I'd like to venture an estimate, based on the enrollment data below: about 2.2 million of the new enrollees are ACA expansion enrollees. That would put current Group VIII enrollment at about 17.5 million.

If we assume that 78% of the new Group VIII enrollees are "newly eligible," that comes to about 1.7 million, raising current "newly eligible" enrollment to about 13.7 million. These enrollees stand to lose their coverage if the Supreme Court voids the ACA in its entirely.  And new enrollment triggered by the ACA expansion is far from over. In my 28-state tally (second chart here), the increase from July to August, 1.5%, is the same as from June to July.

At The American Prospect: Medicaid, the ACA's mainstay

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As in 2018, political warfare over healthcare -- now escalating in the wake of Ruth Bader Ginsburg's death -- is focused on "protection for people with pre-existing conditions." While the war of words focuses on rules governing the individual market for health insurance, which insures about 3% of the population, the real fight is over the extent to which the federal government will subsidize health insurance for those who lack access to employer-sponsored insures. The pre-existing condition that matters most is low income.

The main engine by which the ACA has reduced the uninsured population is Medicaid. Obscuring this fact distorts our political debate as well as federal and state government response to the pandemic.  I made that case in 2018 in USA Today, and today I've made it again in The American Prospect: