UPDATE: Where Do We Go From Here, Take 2.5
2018 MIDTERM ELECTION
Time: D H M S
I originally used this headline after the dust settled on the Year One open enrollment season to discuss my plans for the ACA Signups project going forward. I used it again less than 2 months ago, at the close of Year Two open enrollment (including the #ACATaxTime extension period).
Normally I'd hold off until sometime in February 2016 to pull it out again, but with the King v. Burwell decision out of the way, this seems like a good time to pause and take stock of what lies ahead.
I've already given my overview of what I expect to happen with the actual exchanges themselves going forward: Hawaii is already moving over to HC.gov, with Vermont and Minnesota being the most likely candidates to (possibly) follow, while Arkansas is preparing to move off of HC.gov in 2017. Beyond that, I don't expect too much other movement one way or the other, although anything's possible now that there's no legal barriers to doing so.
The only other significant exchange-specific developments to keep an eye out for are the remaining technical issues. For instance, HC.gov is still working on their automated payment reconciliation "back end" system. However, the King v. Burwell decision should also mean that development on this and other technical projects should ramp back up again now.
Otherwise, I was planning on writing up a list of the remaining significant challenges the ACA has to ovecome, but Julie Appleby at Kaiser Health News has already done most of the work for me:
- Medicaid Expansion. About 4 million more Americans would gain coverage if all states expand the state-federal Medicaid programs to cover people with incomes at or slightly above the poverty line.
After a lot of expansion activity about earlier this year (with Pennsylvania, Indiana and Montana jumping on board, while efforts in Tennessee and Wyoming fell short), things have been pretty quiet on the Medicaid front the past few months as the KvB case sucked all the oxygen out of the room, causing uncertainty for even some established Medicaid expansion programs. With all that uncertainty, the remaining states didn't even want to get into talking about it before the case was decided.
- Anemic Enrollment. Eighteen million Americans who are eligible to buy insurance in federal and state marketplaces haven’t purchased it.
I don't think "anemic" is a fair description of the numbers to date, but certainly most watchers (including myself) were expecting 2015 enrollment numbers to be somewhat higher, and the CBO is, oddly, still projecting a monthly average exchange enrollment of a whopping 21 million people next year, which I think is crazy. As I noted back in March:
Why on earth are they expecting exchange enrollments to shoot up from 11 million to 21 million? Well, the other numbers show that they're expecting employers to drop about 5 million more people from ESI next year, preferring to pay the $2K/head tax instead (in response to the employer mandate, no doubt). In addition, they're expecting another 1 million people on "grandmothered/grandfathered" policies to make the move to ACA exchange QHPs. Presumably the other 4 million additional enrollees will be people who got hit with the Individual Mandate tax penalty this year ($325/person or 2% of taxable income) and were finally goaded into taking the plunge to avoid the even stiffer penalty for 2016 ($695/person or 2.5% of taxable income).
In 2014, the CBO originally projected 7 million, lowering it to 6 million after the technical meltdown. The final monthly average came in at around 5.5 million.
In 2015, as noted above, CBO went from 13 million to 12 million, and now to 11 million. My projection for this year stands at around 10.1 million. [note: I've since lowered this a bit further to around 9.8 million for 2015]
Based on this, even I'm skeptical that the exchanges will hit 21 million next year (assuming King v. Burwell doesn't blow everything up, of course). I don't have my own estimate as of yet, and won't be making any projections until next fall, but 21M sounds a bit unrealistic to me.
Back to Kaiser...the next two are the ones which I'm personally the most concerned about:
- Market Stability. Nationally, premiums haven’t gone up too much on average in the first two years of the marketplaces, but that could change.
- Affordability. People who get their insurance through their employer have mostly been spared jolts from the health law. But...individuals buying their insurance on the health law marketplaces continue to risk large out-of-pocket costs if they need lots of care. Their maximum financial obligations for next year are $6,850 for individuals and $13,700 for families.
Yup. Thankfully, the 60-90% average rate hike apocalypse which a plaintiff win in KvB would have brought has been avoided, but that still leaves us with the normal, expected rate changes for 2016, which could range anywhere from "quite tame" to "OMG everyone freak out!" in the end.
Meanwhile, the high deductible issue is a legitimate problem for many people; it doesn't do much good to only pay $20/month or whatever if you still have to shell out the first $10,000 before the coverage even kicks in. I'm not sure what the solution to this is beyond serious expansion of the Cost Sharing Reduction program, which is certainly never gonna happen with the current Congress.
- Political Resistance. Thursday’s ruling did little to diminish the GOP’s zeal to repeal the health law. Republicans on both sides of the Capitol pledged to continue their efforts to kill the ACA.
Personally, I'm actually not particularly concerned about this one (at least the purely political/legislative side of it; I've separated out the judicial stuff into a separate entry below). I'm among those who believe that at this point, even if the GOP manages to sweep the House, Senate and White House next year, they still won't actually make good on a full repeal of the ACA "root and branch" as Mitch McConnell keeps vowing (unless it ends up being an utter rout--ie, supermajorities of Tea Party nutbags in both houses, etc). I truly think that it's already too firmly entrenched in the American economy and healthcare system in too many areas to be destroyed.
The politics of ObamaCare are shifting.
A law that helped Republicans sweep into the House majority in 2010 and contributed to Democrats losing the Senate four years later might be becoming a bigger political problem for the GOP than it is a liability for Democrats.
Finally, I'm moving from KHN to the Huffington Post for the final type of hurdle: The remaining legal challenges still on the table, nicely summarized by Jeffrey Young:
"The remaining legal challenges either don't go to the heart of the Affordable Care Act or are quite unlikely to succeed -- with one possible asterisk," said Nicholas Bagley, a professor at the University of Michigan Law School in Ann Arbor.
Of these lawsuits, the most dangerous for the Affordable Care Act is House v. Burwell, the case brought by House Speaker John Boehner (R-Ohio) and the rest of the Republicans in the lower chamber of Congress last year, Bagley said.
House Republicans make two main claims in their lawsuit. The first is that Obama exceeded his legal authority when he delayed enforcement of the Affordable Care Act's employer mandate. The second is that the Obama administration illegally spent money on subsidies without Congress appropriating the funds. The King case hinged on the tax credits low- and moderate-income people can claim to reduce their health insurance premiums. This GOP's lawsuit is about subsidies available to the poorest Obamacare beneficiaries that limit their out-of-pocket costs by shrinking their deductibles, copayments and the like.
In other words, this is basically King v. Burwell, Jr: It goes after the same Cost Sharing Reductions which I referred to above. On the one hand, it doesn't impact as many people ("only" 58% of enrollees vs. 85% who receive the premium tax credits). On the other hand, it would impact every state, not just those on Healthcare.Gov, so I believe we're talking about roughly 5.9 million total nationally.
House v. Burwell hasn't bubbled up to the surface yet, so it might get quashed before it ever reaches the Supreme Court, but that's what most people thought about King v. Burwell as well:
House v. Burwell is still pending at the lowest level of the federal judiciary in the district court for the District of Columbia. Judge Rosemary Collyer has yet to rule on whether the House Republicans even have legal standing to sue the administration, a hurdle they may not be able to overcome, Jost said. But at a hearing this month, Collyer pressed the administration's lawyer about the substance of the House's claims, suggesting she may be sympathetic to their arguments.
As for the rest of the lawsuits, they appear to be more mildly annoying than anything:
- Two cases, Sissel v. U.S. Department of Health and Human Services and Hotze v. Burwell, allege, in part, that the Affordable Care Act should be overturned because its individual mandate language didn't originate in the House, where the Constitution requires tax law to be created. Both cases have lost at the appeals court level, but may be reheard by judges.
- Obama's maneuver to quell the furor over health insurance policy cancellations in 2013 -- the broken "if you like your plan, you can keep your plan" promise -- also is under legal review. Obama asked health insurance companies and state regulators to reinstate those canceled plans, even though they didn't comply with new regulations from the Affordable Care Act.
So, as you can see, while things should quiet down slightly between now and November, there'll still be plenty to keep ACA Signups busy for the next few months...