Since we're all in such a cheery mood anyway, here's another log on the fire.
OK, so Mitch McConnell has now confirmed that yes, repealing the Affordable Care Act is indeed Priority 1 for the incoming 100% GOP-controlled Congress now that they know they'll have President Trump (good God, I'll never get used to writing that) ready to sign it with his big Sharpie.
The only saving grace I keep seeing being thrown around today is the assumption that the Senate will in all likelihood simply dust off the repeal bill they passed in 2015 (the one which President Obama vetoed), cross out the date and pass that one...which included keeping the existing APTC subsidies in place through the end of 2017.
This would still suck royally, but at least it would buy everyone one more year to figure out what the hell they're gonna do for a healthcare policy starting in 2018, right?
Well...perhaps. But there's a catch, which Amy Lotven of Inside Health Policy wrote about back in September and which I discussed with Prof. Nicholas Bagley from the University of Michigan:
CMS has provided industry its sought-after out should the federal courts agree with House Republicans that the administration illegally allowed the ACA's cost-sharing reductions to flow to health plans without congressional appropriations. The agency included in the qualified health plans' agreements for 2017 a clause that acknowledges their filings were based on assumptions that the CSRs would be in place, and thus their disappearance would be a cause for termination subject to state law.
...The case is expected to be heard this fall, and a ruling could come out next year long after premiums are set. Experts are unclear what would happen if the House wins the appeal. The courts could immediately stop the payments, or potentially stay the decision until the end of the policy year.
But, even if the court blocks the administration from paying plans for the CSRs, the issuers would still be required to provide them since they're required under statute.
The contract clause drafted by CMS would give plans the option of terminating their agreements in that scenario, however subject to state law.
As noted later in my September post, this analysis was provided to me by a trusted source, and Prof. Bagley said that a cursory read of it suggests that yes, it does seem to be accurate:
The typical agreement a QHP issuer enters into if selling on the FFM requires them to keep the policy in force for the entire calendar year. [This exit clause] gives them option to term the policy abruptly if the Courts rule, or a Trump administration decides, that it won't pay CSR offset payments to carriers. Because this won't hit the Supreme Court until late 17 or early 18, I think this is as much about assuaging carriers fears of a Trump admin trying to destroy the marketplaces as anything else.
In other words, a Trump administration could come in the office on January 20 immediately directing the treasury secretary to not make the February 1 payment for CSR (and only pay the APTC) that month.
This would be devastating in two different ways.
First, it would immediately cut off Cost Sharing Reduction payments for perhaps 6-7 million people starting in February. This is the financial assistance to people below the 250% Federal Poverty Level who are enrolled in Silver exchange policies which covers a large portion of their deductibles and co-pays.
Even more nightmarish, however, is that under this scenario, the "exit clause" appears to give the carriers the contractual right to terminate existing policies immediately. As in, not 12/31/17, but January 31st, 2017...just 11 days after Trump is inaugurated (and, as it happens, the last day of the 2017 open enrollment period).
As noted, this could be Trumped (hah!) by state laws disallowing such terminations, and depending on the wording of the contracts, they might only be allowed to kill off Silver plans; I'm not sure how that works. But either way, this would make a situation which is already a disaster into a true catastrophe for millions of people.