CMS confirms that insurance companies can bail if Halbig/King are upheld

The Halbig/King federal suit cases have been off the radar for awhile now, but they're still swirling around in the ether, and will pop up again sooner or later. While a final ruling (by the SCOTUS either taking up one of the cases or refusing to do so) likely won't happen until next summer or so, the insurance companies and the HHS/CMS Dept. are understandably concerned about the ramifications of the possibile outcome, so they've taken some steps accordingly:

The agreements to participate in the federally-facilitated marketplace (FFM) that CMS sent to issuers last week include a new clause assuring issuers that they may pull out of the contracts, subject to state laws, should federal subsidies cease to flow. CMS did not say if the clause is meant as a safeguard against the potential impact of various high-profile lawsuits -- including Halbig v. Burwell -- that could end up in the Supreme Court next year, but stakeholders assume that is the point.

The agency tells Inside Health Policy that the new clause was inserted at the request of issuers, and that both parties believe the clause is critical. Agreements must be signed and returned to CMS by Wednesday (Oct. 22).

I should also note that this lends some evidence as to why Healthcare.Gov isn't listing the detailed policy rates for 2015 yet. If the final agreements were just sent out a week ago and weren't even due back until 2 days ago, it strongly suggests that the new rates may not even be uploaded to the system yet...and if they aren't in the system, there's no way of making them available to the public.

Now, you can certainly ask why the HHS Dept. pushed the start of open enrollment back from October 1st to November 15th in the first place this year (electoral speculation abounds!), but once they did so, it naturally follows that the new policy specs/premium rates would also be pushed back another 6 weeks as well. The administration's official explanation is that the insurers needed the extra time for their actuaries (see item #5) to figure out their new rates due to the late start of the exchanges last year because of the widespread technical problems. Whether you believe this or not probably depends on your partisan leanings, of course.