Individual Mandate

 

With the Texas vs. Azar lawsuit (aka #TexasFoldEm) dangling over everyone's heads like the Sword of Damocles, Kaiser Family Foundation CEO Drew Altman has a short piece up over at Axios which notes that the sick irony of this whole stupid situation is that the ACA itself is clearly doing at least reasonably well without the mandate penalty being in place anyway...completely undermining the entire case of the plaintiffs in the lawsuit:

The ACA is doing fine without a mandate penalty

The Affordable Care Act’s insurance market has not been materially affected by the elimination of the individual mandate penalty — undercutting a key argument in the lawsuit urging the courts to strike down the health care law.

*(Yes, I know, the District of Columbia isn't actually a state, and Vermont's mandate is...well, read on...)

As the 2020 Open Enrollment Period rapidly approaches (it starts November 1st nationwide...except for California, where open enrollment is starting on October 15th), it's time to start getting the word out about some important things to keep in mind this fall.

One of the most critical things to remember for residents of California, the District of Columbia, Massachusetts, New Jersey, Rhode Island and Vermont is that each of these states* has reinstated an individual healthcare coverage mandate law/ordinance to replace the federal ACA mandate penalty which was zeroed out by Congressional Republicans back in December 2017. This means that if you live one one of them, unless you receive an affordability, hardship or other type of acceptable exemption, you'll be charged a financial penalty when you file your state/district taxes for 2020 in spring 2021 if you don't have qualifying healthcare coverage.

I noted last month that Rhode Island was the latest state to put in for an ACA Section 1332 reinsurance program waiver:

Governor Raimondo’s proposed FY 2020 budget called for the creation of the Health Insurance Market Integrity Fund, which would make available reinsurance payments to health plans to reduce the burden of high cost claims on individual market premiums. According to insurer filings, the enactment of the Health Insurance Market Integrity Fund would reduce the individual market premium requests from 6.6% to -0.4% for BCBSRI and from 5.4% to 1.7% for NHPRI. These insurers’ pricing assumptions are subject to review and verification by OHIC. Table 1 shows the requested individual market rate increases with and without reinsurance.

I wasn't expecting my analysis of Rhode Island's 2020 ACA premium changes to be of any particular interest; it's a small state with only two carriers offering individual market policies, after all, so there's not usually much to it.

When I last checked in on the Ocean State (seriously...that's their official slogan for whatever reason), I had noted that the state Senate had passed a bill (2019-S 0738A) which, if signed into law, would lock in most of the ACA's "Blue Leg" protections, including guaranteed issue, community rating, removal of annual/lifetime coverage caps and so forth.

Last year, I noted several times that regardless of what your opinion may be of the ACA's Individual Mandate Penalty (which was, until this year, either $695 per adult/$348 per child or 2.5% of your household income, unless you received an exemption), one of the key things to keep in mind about the penalty is that any impact it has on encouraging people to go ahead and enroll in ACA-compliant healthcare coverage is entirely dependent on two things:

This actually happened back in March but I missed it at the time:

Lawmaker proposes Medicaid buy-in and individual mandate for Oregonians

Representative Andrea Salinas, the new Chair of the House Health Care Committee, recently filed a bill that aims to establish a Medicaid buy-in option for Oregon residents. The bill, HB 2009, would also establish a “shared responsibility penalty,” or an individual mandate for Oregonians.

HB 2009 would essentially allow individuals who do not qualify for Medicaid, or for premium tax credits under the Affordable Care Act, to enroll in CCOs by paying premiums to cover their health services.

(Note: "CCOs" = "Coordinated Care Organizations", which I believe is how Oregon designates their Medicaid program.)

Yesterday I noted that both houses of the California state legislature (Assembly and Senate) voted to expand Medi-Cal (the state's Medicaid program) to anywhere between 147,000 - 175,000 undocumented immigrants (young adults age 19 - 25 and seniors over 65), entirely funded using state dollars.

It turns out that this was only part of a marathon voting session yesterday over the past few weeks. Either the state Senate, Assembly or both have also voted to pass three a bunch of other healthcare-related bills (I've included simple descriptions of each):

BREAKING: California Assembly passes our #AB1246(@Limon) to align consumer protections for all Californians, including those in large group coverage. #Care4AllCA

Just a few minutes ago I noted that the state of Oregon is once again strongly considering taking a second crack at establishing their own, fully state-based ACA exchange after spending the past five years piggybacking on top of HealthCare.Gov.

Well, the Oregon State Public Interest Research Group just published an extensive report in which they urge the state to do just that...along with several other key changes which I also strongly agree with:

Steps like a mandate for Oregon residents to buy health insurance and relief for exchange customers who earn too much to receive tax credits under the Affordable Care Act could help reverse premium hikes that have shot up amid attempts by the Trump administration to roll back the law, OSPIRG, the Oregon State Public Interest Group, argued in a report released Wednesday.

Lost amidst all the other overwhelming ACA-related news this week is one other important nugget: The Affordable Care Act's "individual mandate penalty", which was lowered to $0 in December 2017, was still the law of the land until December 31, 2018. It may have been changed at the time, but that change didn't become effective until January 1, 2019.

Here's the exact text:

PART VIII--INDIVIDUAL MANDATE SEC. 11081.

ELIMINATION OF SHARED RESPONSIBILITY PAYMENT FOR INDIVIDUALS FAILING TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.

(a) In General.--Section 5000A(c) <<NOTE: 26 USC 5000A.>> is amended--
(1) in paragraph (2)(B)(iii), by striking ``2.5 percent'' and inserting ``Zero percent'', and
(2) in paragraph (3)--

(A) by striking ``$695'' in subparagraph (A) and inserting ``$0'', and
(B) by striking subparagraph (D).

(b) <<NOTE: 26 USC 5000A note.>> Effective Date.--
The amendments made by this section shall apply to months beginning after December 31, 2018.

Shoutout to James Medlock for digging up this relic from the 2008 Presidential primariy race: A lit piece from then-Senator Barack Obama's campaign slamming then-Senator Hillary Clinton over her insistence on her proposed healthcare policy bill including an Individual Mandate Penalty. How many Republican talking points can you spot below?

There's a lot going on here. For starters, the couple on the first page are basically 2008 versions of "Harry & Louise"...it's a white, middle-age, middle-class suburban couple poring over their finances. Considering that the 1993 "Hillarycare" proposal was destroyed in large part due to the health insurance lobby's successful series of Harry & Louise "there's got to be a better way" ads, Obama using this same tactic had to sting.

Back in early December, I noted that while I applauded both New Jersey and the District of Columbia for creating their own individual healthcare coverage responsibility requirements (aka, The Individual Mandate) in response to Congressional Republicans repealing the ACA's federal penalty, doing so also required making sure that residents of NJ/DC *knew* they had done so:

There's only one problem with this: The impact of the mandate penalty is completely psychological in nature. It only works (to the extent that it does at all) if people know that they'll be penalized financially for not complying with the mandate.

Last night, in response to CMS Administrator Seema Verma taking shots at both Covered California (for blaming their drop in new enrollment on the federal mandate being repealed) and New Jersey (for seeing a 7.1% exchange enrollment drop in spite of reinstating the mandate), I wrote a long analysis which noted that:

  • Verma may have a valid point, but...
  • There's not nearly enough data available to know one way or the other (especially the missing off-exchange data for this year), and...
  • Even if she turns out to be correct about NJ's total enrollment drop, NJ reinstating the mandate still resulted in a substantial premium drop for well over 100,000 residents.

Today, I was able to fill in some of that missing data...although some of it is still frustratingly absent.

So, a couple of hours ago, CMS Administrator Seema Verma tweeted out the following:

.@coveredca blames subpar enrollment on no federal mandate penalty, but NJ kept penalty and saw much, much bigger drop. Forcing Americans to buy insurance they can’t afford isn’t the answer.

— Administrator Seema Verma (@SeemaCMS) January 31, 2019

Last fall, I reported that thanks to the one-two punch of a) reinstating the ACA's individual mandate penalty at the state level and b) using the revenue generated from the mandate penalty to help fund a robust reinsurance program, the state of New Jersey had successfully lowered average unsubsidized premiums for 2019 individual market policies by a net swing of nearly 22 percentage points.

This Just In from Covered California...

Covered California Plan Selections Remain Steady at 1.5 Million, but a Significant Drop in New Consumers Signals Need to Restore Penalty

  • Covered California finishes open enrollment with 1.5 million plan selections, which is virtually identical to 2018’s total, despite federal changes.
  • A key reason for the steady enrollment is that more people entered the renewal process for 2019 coverage after a strong enrollment period for 2018.
  • The federal removal of the individual mandate penalty appears to have had a substantial impact, leading to a decrease of 23.7 percent in new enrollment.

SACRAMENTO, Calif. — Covered California announced that more than 1.5 million consumers selected a health plan for 2019 coverage during the most recent open-enrollment period, a figure in line with last year’s total. There was a 7.5 percent increase in the number of existing consumers renewing their coverage and a 23.7 percent drop in the number of new consumers signing up for 2019.

As part of her proposed 2020 annual budget, Rhode Island Governor Gina Raimondo has included an item of particular interest to those following the ACA:

Health Care Access and Affordability

State government plays a critical role in today’s health care system. Every policy decision we make has an impact on the individuals, children and families who need care. The Governor’s FY20 budget proposal builds on this momentum, preserving vital ACA protections that promote market stability and help to keep uninsured rates low. There are no eligibility cuts or broad-based benefit impacts proposed.

...Market Stability and Reinsurance Initiative

Last week I acquired the DC Health Link enrollment data for the first two weeks of 2019 Open Enrollment. It showed that DC, unlike most of the other state-based exchanges, was lagging behind last year for the first two weeks (although not as much as most of the HC.gov states).

Well, I just received updated data out of DC and the enrollment situation over the following four weeks didn't improve (if anything they dropped off slightly more):

  • Nov. 1 - Dec. 11, 2017: 19,252 QHP selections
  • Nov. 1 - Dec. 11, 2018: 17,825 QHP selections

That's a drop of around 7.4% year over year so far.

As with most other state-based exchanges, the numbers for both years include auto-renewals, which means the vast bulk of 2019 enrollments are likely already baked in. Last year's final tally was 19,289; DC has already reached 92% of that as of 12/11. Keep in mind that DC's Open Enrollment Period does not end on Saturday the 15th; it continues for another 47 days after that, through January 31st.

The numbers are several weeks out of date, but it's better than nothing: Here's the DC Health Link's official 2019 ACA Open Enrollment report through November 13.

Things weren't looking great as of two weeks in: Total enrollments were down 6.8% (1,202 people) year over year as of the same date. We'll have to see whether things have picked up since then.

As with most other state-based exchanges, the numbers for both years include auto-renewals, which means the vast bulk of 2019 enrollments are likely already baked in. Last year's final tally was 19,289; DC had already reached 85% of that as of 11/13.

DC's report also includes all sorts of wonky demographic breakout data, and even closes with currently effectuated numbers for both the individual and small business (SHOP) markets. Remember, DC's SHOP market is unusually high (especially compared to the individual market) because the ACA requires all members of Congress and their staff to enroll using it if they want their 72% FEHB subsidy.

I just received another official update from the MA Health Connector...

On enrollment, as of today, we have 261,619 enrolled members for January. We have an additional 14,368 plan selections made (but unpaid) for a total of 275,994 under the CMS definitions. New enrollments for 2019 continue to trend slightly ahead of last year.

A week or so ago I noted that Massachusetts had enrolled just over 264,000 people (10,000 of whom hadn't actually paid their January premium yet...MA's exchange is one of the only states which is able to actually track payment data live, since they handle it themselves). They were up 10K over the same date in 2017, or up around 4% year over year.

I don't have a hard "thru 12/05" number for 2017 this week, but they did confirm the 276K number is still "slightly ahead", which is good.

"But the whole point of the doomsday machine is lost if you keep it a secret! Why didn't you tell the world, eh?

--Dr. Strangelove, 1964

No one applauded the New Jersey legislature and Governor Phil Murphy louder than I did when they swiftly passed several laws this past spring which cancelled out much of the Trump Administration's sabotage of the Affordable Care Act. As a reminder, the laws and waivers they put into effect included:

"But the whole point of the doomsday machine is lost if you keep it a secret! Why didn't you tell the world, eh?

--Dr. Strangelove, 1964

No one applauded the New Jersey legislature and Governor Phil Murphy louder than I did when they swiftly passed several laws this past spring which cancelled out much of the Trump Administration's sabotage of the Affordable Care Act. As a reminder, the laws and waivers they put into effect included:

Last spring, both New Jersey and Maryland were among the states which were the most pro-active about passing lesiglation to cancel out Donald Trump's attempts to deliberately sabotage the Affordable Care Act. Both states passed laws cracking down on non-ACA compliant short-term and association health plans (NJ actually already didn't allow short-term plans before the ACA anyway), both states established robust reinsurance programs, and both states tried to pass bills reinstating the ACA's Individual Mandate Penalty which Congressional Republicans repealed last winter in different ways.

New Jersey was successful: They kept their mandate penalty restoration bill pretty much identical to the version repealed at the federal level and plan on using the revenue from it to help pay for the reinsurance program. The combined impact of all of their anti-sabotage efforts led to roughly a $1,500 annual premium savings for every unsubsidized individual market enrollee in the state.

As I just noted earlier this afternoon, Massachusetts is NOT expecting the repeal of the ACA's individual mandate to impact their 2019 individual market enrollment or premiums for a simple reason: The Bay State never formally repealed their own, pre-ACA mandate penalty. They basically mothballed it once the ACA's version went into effect, and are simply dusting it off for 2019 and beyond now that the federal mandate has been formally repealed.

However, the two mandate penalties don't work quite the same way. For the federal mandate, unless you qualify for an exemption (and there's a whole bunch of those), the penalty for not having ACA-compliant healthcare coverage is (or has been up until now) as follows:

This Just In...

Ready for Open Enrollment, Health Connector sets 2019 plans with lower premium increases, selects community organizations to provide in-person support to residents

Boston – September 13, 2018 – The Massachusetts Health Connector Board of Directors today approved 57 Qualified Health Plans from nine carriers for individuals and families, with new plan designs that create better value for members and premium increases that average under 5 percent from 2018.

Unfortunately, the press release doesn't specify what "under 5%" means, nor does it break that out by carrier/market share. I've put in a request for those details and will update this as soon as I hear back from them. They sent me the following chart, but this only includes enrollees earning between 300-400% of the Federal Poverty Level, which means the marketshare across the entire individual market is likely somewhat different. I'm assuming the 4.4% overall average applies to the entire market but could be wrong about that as well:

Iowa has only a single insurance carrier offering ACA-compliant individual market policies this year. Next year they'll have two, as Wellmark has decided to Hokey Pokey their way back onto the exchange again in 2019...but since they weren't around this year, there's no current policy premiums to measure any increase (or decrease) against.

That leaves Medica. Here's what they had to say about their 2019 rates back in June:

Medica, the sole carrier now selling individual health insurance policies in Iowa, plans to raise its 2019 premiums by less than a tenth as much as it did for 2018.

Medica raised its Iowa health insurance premiums by a staggering average of 57 percent for 2018. It was the steepest such health insurance increase in Iowa history. Company leaders said last summer they needed the higher premiums to stay in the market. But this time around, the Minnesota-based carrier is planning to raise Iowa premiums by an average of less than 5.6 percent, state regulators disclosed Wednesday.

New Jersey was one of a handful of states with a newly-full blue government which took swift and decisive action to cancel out some of the worst ACA sabotage efforts of the Trump Administration and Congressional Republicans this year. The following bills were passed by the state legislature and signed by new Governor Phil Murphy:

  • Reinstate the ACA's individual mandate penalty,
  • Establish a robust reinsurance program to significantly lower insurance premiums for individual market enrollees,
  • Protect people from out-of-network "balance billing", and
  • Cancel out Trump's expansion of "Association Health Plans"
  • In addition, New Jersey already outlawed "Short-Term Plans" (and "Surprise Billing") before the ACA was passed anyway.

Less than one month ago:

...back in February...the executive board of the DC ACA exchange unanimously voted to reinstate the mandate. It didn't mean all that much at the time, however, because the authority to reinstate it actually belongs to the DC Council.

Well, thanks to Mr. Levitis for the heads up. If you scroll down to Page 138, you can see that the DC Council has indeed done just that:

TITLE V. HEALTH AND HUMAN SERVICES
SUBTITLE A. INDIVIDUAL HEALTH INSURANCE REQUIREMENT

Sec. 5001. Short title.
This subtitle may be cited as the “Health Insurance Requirement Amendment Act of 2018”.

Sec. 5002. Title 47 of the District of Columbia Official Code is amended as follows:
(a) The table of contents is amended by adding a new chapter designation to read as follows:
“51. Individual Taxpayer Health Insurance Responsibility Requirement”.
(b) A new Chapter 51 is added to read as follows:
“CHAPTER 51. INDIVIDUAL TAXPAYER HEALTH INSURANCE RESPONSIBILITY REQUIREMENT.

This Just In...

State’s Market Stability Workgroup Recommends Immediate Action to Protect Rhode Islanders from Federal Threats to Health Insurance Access and Affordability

Posted on June 27, 2018 | By HealthSource RI

EAST PROVIDENCE, R.I. (June 27, 2018) – Rhode Island must act “without delay” to protect consumers from rising health coverage costs brought on by federal policy changes according to a report issued to Governor Raimondo by the state’s Market Stability Workgroup.

“People representing a wide variety of viewpoints engaged in lively discussions over the course of 8 weeks,” said Workgroup co-chair Bill Wray, Chief Risk Officer at the Washington Trust. “The fruits of those discussions are in this report. All of us – consumer advocates, business groups, health insurers and providers – were able to broadly agree on how best to protect Rhode Island’s insurance markets.”

*(technically Vermont was the third to do so, but theirs doesn't kick into effect until 2020, and they haven't even crystalized exactly what form it would take anyway.)
**(yeah, I know very well that DC isn't actually a state, but it's pretty awkward to put "state and/or territory" in the headline.)

I realize that 110% of the news/media/political attention is on the bombshell announcement that Supreme Court Justice Anthony Kennedy is retiring at the end of July, but there are other things going on as well, so I'll do my best to soldier on...

More big health care action at the state level: yesterday the DC Council passed what would be the nation's third state-level individual mandate, after Mass. and NJ.https://t.co/BmtnDAQvVp

— Jason A. Levitis (@jasonlevitis) June 27, 2018

Presented without comment:

AHIP Issues Statement Regarding TX v. United States of America

WASHINGTON, D.C. – America’s Health Insurance Plans (AHIP) issued the following statement regarding the latest developments in TX v. United States of America:

“Millions of Americans rely on the individual market for their coverage and care, and they deserve affordable choices that deliver the value they expect. Initial filings for 2019 plans have shown that, while rates are higher due to the zeroing out of the individual mandate penalty, the market is more steady for most consumers than in previous years, with insurance providers stepping in to serve more consumers in more states.

This is about as simple as I could make it. It's an absolutely absurd argument, but there it is:

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