ACA Sabotage

Last Thanksgiving, regular readers may recall that I went on a bit of a rant regarding the annual Notice of Benefit & Payments Parameters, which is a yearly collection of administrative tweaks made by the CMS Administator regarding the specific way in which a slew of ACA policies are actually implemented.

Out of the dozen or so rule changes included in the 2022 NBPP, several of them were perfectly reasonable; several were fairly nominal or neutral...and several of them should have set off red flags everywhere for the incoming Biden Administration, including:

  • Allowing states to flat-out privatize their ACA marketplaces
  • Pushing navigators and assisters to use private, 3rd-party direct enrollment brokers
  • Codifying the Trump Administration's warped interpretation of ACA Section 1332 waivers

There's also a couple of rules in the 2022 NBPP which I opposed, but which won't cause too much damage (at least relative to the three above):

But actually, he thought as he re-adjusted the Ministry of Plenty’s figures, it was not even forgery. It was merely the substitution of one piece of nonsense for another. Most of the material that you were dealing with had no connexion with anything in the real world, not even the kind of connexion that is contained in a direct lie. Statistics were just as much a fantasy in their original version as in their rectified version. A great deal of the time you were expected to make them up out of your head.

Rancid Turkey

UPDATE: It looks like the 2022 NBPP will be open for Public Comment starting on December 4th and ending on December 30th at 5pm. This is obviously 4 days shorter than the typical 30-day minimum, and it includes Christmas Eve & Christmas Day as well. I've been informed that this is technically legal as allowing a minimum of 30 days is a guideline, not requirement...but it sure wouldn't look good if the rule is brought in front of a judge.

The Affordable Care Act includes a long list of codified instructions about what's required under the law. However, like any major piece of legislation, many of the specific details are left up to the agency responsible for implementing the law.

Welcome to the latest chapter in the long, epic CSR Lawsuit Saga which has been slogging along for six years now.

Here's a quick recap (again):

  • The ACA includes two types of financial subsidies for individual market enrollees through the ACA exchanges (HealthCare.Gov, CoveredCA.com, etc). One program is called Advance Premium Tax Credits (APTC), which reduces monthly premiums for low- and moderate-income. The other is called Cost Sharing Reductions (CSR), which reduces deductibles, co-pays and other out-of-pocket expenses for low-income enrollees.
  • In 2014, then-Speaker of the House John Boehner filed a lawsuit on behalf of Congressional Republicans against the Obama Administration. They had several beefs with the ACA (shocker!), including a claim that the CSR payments were unconstitutional because they weren't explicitly appropriated by Congress in the text of the Affordable Care Act (even though the program itself was described in detail, including the payment mechanism/etc.)

Four days ago, from Trump Administration Centers for Medicare & Medicaid Administrator, Seema Verma:

No, the Trump administration is not cutting Medicaid. https://t.co/bk5uMMKof4

— Administrator Seema Verma (@SeemaCMS) February 6, 2020

(sigh) Honestly not sure why I'm bothering posting this. Anyone who doesn't understand that the only promises Trump keeps are the racist, xenophobic, homophobic, misogynistic, antisemitic and corrupt ones by this point is either a complete idiot or willfully ignorant:

The Trump administration wants to slash billions of dollars in federal support from Medicaid, food stamps and other safety net programs for the poor, while largely sparing the Medicare program that benefits seniors.

Note: This isn't limited to Michigan...many of the items listed here could/should be applied in other states as well.

Dear Governor Whitmer & Michigan State House and Senate Members:

If you're familiar with me and this site, you probably know two things about me:

  • 2. Having said that, until universal coverage is feasible at the federal level in one way or another, I strongly believe that it is vitally important to protect, repair and strengthen the Affordable Care Act even if it ends up being replaced by something else in the near future.

Here's my original post on yesterday's 5th Circuit Court of Appeals ruling in the absurd Texas vs. U.S. (aka Texas Fold'em) lawsuit.

The bottom line for What This Means is:

  • The ACA remains the law of the land and likely will remain that way for at least another year.
  • Having stated the above, the ACA is still indeed very much in jeopardy. Going forward, the case will follow one of two possible routes:
    • Officially, it's supposed to go back to the judge who ruled against the ACA in the first place a year ago to "reconsider" which parts of it can be "saved"...after which it would then go back to the 5th Circuit Court of Appeals, and then to the U.S. Supreme Court. That full process could take well over a year.​​​​​​​
    • However, it's possible that the Supreme Court will intervene and agree to take the case up instead of it going to the original judge first, which is what the defending states are now requesting. This full process...could still take up to a year, although it's conceivable that a final ruling would be issued before the election.

Well, as if Impeachment Day wasn't tense and historic enough already, the 3-judge panel of the 5th Circuit Court of Appeals has finally issued their decision on the Texas vs. U.S. (aka Texas vs. Azar, aka Texas Fold'em) lawsuit intended to strike down the entire Affordable Care Act:

Before KING, ELROD, and ENGELHARDT, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge:

I've written a lot over the past nearly three years about the damage caused to ACA policy enrollment caused by the Trump Administration's slashing of 90% of HealthCare.Gov's marketing, awareness and outreach budgets.

A significant portion of the reduction in ACA exchange enrollment in 2017, 2018 and 2019 can be blamed squarely on this.

That's not just my opinion; it's been supported by detailed analysis as well as the corresponding increase in enrollment on state-based exchanges, which operate their own marketing/outreach budgets.

The following graph compares the two over the first six Open Enrollment Periods. I've had to adjust for the fact that since 2014, several states have switched from state exchanges to the federal one or vice-versa, but even so, the contrast is dramatic and clear:

 

Just 9 days ahead of the official launch of the 2020 ACA Open Enrollment Period (California already started theirs), the House Energy & Commerce Health Subcommittee will be holding a livestreamed hearing with CMS Administrator Seema Verma:

HEARING ON "SABOTAGE: THE TRUMP ADMINISTRATION'S ATTACK ON HEALTH CARE"

  • Date: Wednesday, October 23, 2019 - 10:00am
  • Location: 2123 Rayburn House Office Building
  • Subcommittees: 116th Congress, Energy and Commerce (116th Congress), Oversight and Investigations (116th Congress)

The Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce will hold a hearing on Wednesday, October 23, 2019, at 10 a.m. in the John D. Dingell Room, 2123 of the Rayburn House Office Building.

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