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.)
NOTE: This is a joint post by three of my colleagues and myself:
David M. Anderson, Charles Gaba, Louise Norris and Andrew Sprung
State policymakers have been prolific and creative in putting forward measures to strengthen their ACA marketplaces. Measures enacted since 2017 or in progress now include reinsurance programs, which reduced base premiums by an average of 20% in their first year in the first seven states to implement such programs; new or renewed state-based exchanges, which capture insurance user fees that can be used for advertising and outreach; state premium subsidies to supplement federal subsidies; and state-based individual mandates, which can provide funding for all of the above.
For three years running, thanks to a combination of the way the ACA's premiums subsidy formula works and the Silver Loading workaround, several million low-income people are eligible for fully ACA-compliant healthcare policies which end up costing them NOTHING in premiums after federal tax credits are applied.
Here's why: Under the ACA's subsidy formula, if you earn between 100% - 400% of the Federal Poverty Line ($12,490 - $49,960/yr if you're single), you're eligible for subsidies which bring the cost of the benchmark Silver ACA plan down to between 2.06 - 9.78% of your income, on a sliding scale.
If you earn less than 200% FPL (just under $25,000), you also qualify for heavy cost sharing reduction assistance as well...but only if you enroll in a Silver plan.
So, let's suppose you earn exactly $25,000/yr (just over 200% FPL). At that income, you'd qualify for subsidies bringing the benchmark Silver down to 6.5% of your income, or $135/month. If the benchmark plan costs, $600 at full price, you'd therefore be eligible for $465/month.
Back in late October, a few days before the launch of the 2020 Open Enrollment Period, I issued a warning to ACA exchange enrollees who may have been benefiting from the "Silver Loading" premium pricing strategy for in 2018 and/or 2019 that the enhanced subsidies they've been taking advantage of for two years are likely going to be reversed for 2020:
What happens next year if the benchmark Silver plan drops by 4%...but the Bronze, Gold, and the OTHER Silver plans stay flat?
It's also important to keep in mind that due to how the ACA's subsidy formula is structured (combined with Silver Loading and Silver Switching), a lower benchmark premium will actually result in higher net premiums for many subsidized enrollees (although it's still good news for those who are unsubsidized). Here's why:
Let's say the unsubsidized premiums for a given enrollee in 2019 is $400 for Bronze, $600 for the benchmark Silver and $700 for Gold.
Let's say that enrollee earns exactly $32K/year (256% FPL), meaning they only have to pay 8.54% of their income for the benchmark plan.
That means they qualify for ($7,200 - $2,733) = $4,467 in subsidies ($372/month).
This would leave them paying $228/month for the benchmark Silver...but they can apply that towards a Bronze plan if they wish so they'd only pay $28/month, or a Gold plan so they only pay $328/month.
Had CSR reimbursement payments continued to be paid over the next decade, the CBO projected that it would have cost the federal government $118 billion between 2018 - 2026, or around $13 billion per year on average.
Cutting off CSR reimbursement payments saves the federal government that $118 billion over 9 years. HOWEVER...
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.
The CSR Lawsuit Saga has been a continuous rollercoaster ride since 2014 at this point, with the original lawsuit (brought by John friggin' Boehner) seeing twists including one of the plaintiffs becoming one of the named defendents, and the named defendent changing at least three times as the Trump Administration went through several HHS Secretaries over the course of a few months.
The extremely short version, again: Donald Trump attempted to sabotage the ACA exchanges by pulling the plug on Cost Sharing Reduction reimbursement payments...but in doing so, unintentionally ended up:
NOT hurting the very people he was trying to hurt (low-income enrollees);
HURTING the very people he supposedly wasn't trying to hurt (middle-income enrollees), and as an added bonus...
INCREASING federal spending by a projected $20 billion dollars per year in increased premium subsidies
Nearly 100 insurance carriers who were stiffed by Trump out of a couple billion dollars owed to them for 2017 sued the federal government, and the judges in the cases ruled in their favor, ordering the feds to pay up. This much was completely expected and not at all out of the ordinary.
Note: Huge props to Amy Lotven for breaking this story!
WARNING: Before you read any of the following, first read this entire post, which explains the latest insane twist in the never-ending Cost Sharing Reduction legal saga. Yeah, I know, I know...just do it. I'll wait.
OK, now that you're all caught up, there's yet another aspect to this craziness which has arisen.
Towards the end of the first post, I noted that:
I'm not sure of the details on how those MLR rebates are allocated, but I know in 2018, nearly 6 million people received an average rebate of $119 apiece. Most of that came from the large and small group markets, but around 1 million people on the ACA individual market received $137 apiece (around $133 million total). That's right: It's theoretically possible that the carriers could have to dole out up to 75 times as much in MLR rebates for 2018 as they did last year.
First of all, it turns out that the amount of money potentially at stake is even higher than that:
Note: Huge props to Amy Lotven for breaking this story.
I've written about the CSR Saga so many times that I'm getting tired of explaining the backstory. However, once again, here's the short version:
Once again, the very short version is this:
The contract insurance carriers sign when they offer policies on the ACA exchanges is to cover a chunk of low-income enrollee deductibles, co-pays and other out-of-pocket costs which would normally be the enrollees' responsibility. These are called Cost Sharing Reductions (CSR).
The carriers then submit their CSR invoices to the federal government, which is supposed to reimburse the insurance carriers every month.
Donald Trump cut off contrctually-required CSR reimbursement payments to insurance carriers in October 2017...and hasn't made any payments since.
(I'm not going to rehash how Trump was able to cut off those payments with a Thanos-like snap of his fingers; suffice to say it's connected to a lawsuit filed so long ago that John friggin' Boehner was still Speaker of the House at the time).
At long last, the final piece of the puzzle can be added: I just received the final 2019 Open Enrollment Period numbers from Vermont Health Connect.
Before looking at it, it's important to understand that Vermont has a unique way of reporting ACA-compliant healthcare policy enrollments.
For the first two years of Open Enrollment, the state didn't allow any off-exchange (or "direct") enrollments for the individual market (or the small business market, I believe). That means all indy market enrollments were done through the exchange. Due to technical problems (and possibly for other reasons as well), however, starting in 2016 they started allowing direct/off-exchange enrollment as well, as every other state does (the District of Columbia is the only other ACA exchange which has no off-exchange market). However, Vermont still requires the insurance carriers to report those off-exchange enrollees to them and they report them as well.
I wish every state reported their enrollment data this way; it would make it much easier for me to do my job, since as it stands the off-exchange market is a bit of a mystery in most states.
Last year there was much hand-wringing by myself and other healthcare wonks about whether or not the Trump Administration would attempt to kill off Silver Loading (and its even-wonkier cousin, Silver Switching). HHS Secretary Alex Azar and CMS Administrator Seema Verma kept sending out mixed and confusing signals about their intentions.
Eventually, Azar decided that while he doesn't like the practice, there wasn't enough time to change the rules before the 2019 Open Enrollment Period was set to begin, so he decided to take a pass for the time being.
Well, in yesterday's NBPP release, the HHS Dept. addressed the issue of CSR reimbursement funding directly...but they also made it clear that they're letting Silver Loading slide for another year:
Unfortunately, Vermont is one of the three states (along with Idaho and Maryland) which hasn't released any 2019 Open Enrollment data yet, so I don't have any numbers to report on that front. However, they did just post this "Open Letter" which I found interesting. The two things to keep in mind about Vermont are: 1) they include their own subsidies on top of ACA subsidies; and 2) they were among two states (North Dakota is the other one) which upgraded their premium pricing in 2019 from "no load" to full #SilverSwitcharoo status.
You can read about the wonky mechanics of this here, but the bottom line is that Vermont residents who qualify for subsidies have substantially better deals available this year, while unsubsidized enrollees have an important workaround to avoid being stung with extra CSR costs:
It isn't often that I write about anything Oklahoma-related, and it's rarer still that I post good news out of the...um..."labor omnia vincit" state (that's their slogan, I looked it up...), so today's a rare day indeed.