Articles on the implementation of ObamaCare.

On February 5, 2016, the Centers for Medicare and Medicaid Services issued a guidance at its REGTAP.info recognizing a new special enrollment period (SEP), while the Departments of Labor, Treasury, and HHS issued a new guidance on student health plans.

Insurers have been sharply critical of SEPs in recent weeks, claiming that individuals who enroll through SEPS are unusually high cost and that SEP enrollees unbalance the risk pool. CMS has stated that it intends to tighten up on SEPs that might be subject to abuse. The agency retains statutory and regulatory authority, however, to recognize new SEPs where appropriate.

The new SEP recognized on February 5 is available for consumers who are without marketplace coverage because of their failure to file their taxes and reconcile advance premium tax credits (APTC) for 2014.

About 12.7 million people enrolled in ObamaCare plans this year, which is almost 9 million fewer than had once been expected and 1.4 million fewer than the upper boundary of its revised enrollment forecast.

Nevertheless, Health and Human Services secretary Sylvia Burwell declared the year “a success” and claimed that enrollment “exceeded our expectations.” In reality, ObamaCare enrollment has hit a wall.

At 12.7 million, total enrollment at the federal and state-run ObamaCare exchanges has ended up in the middle of range of the administration’s sharply lowered enrollment forecast, which they said could be anywhere from 11 million to 14.1 million for 2016. The Congressional Budget Office had previously expected enrollment to hit 21 million this year.

With the results now in from the Affordable Care Act’s third open enrollment period, it’s getting increasingly difficult to sugarcoat the extremely low numbers of enrollees relative to original projections. The 12.7 million people who signed up for an exchange plan amounts to just half as many enrollees as was projected by government and private sector research organizations when the ACA passed.

The Rand Corporation predicted 27 million, the Centers for Medicare and Medicaid Servicespredicted 24.8 million, the Urban Institute predicted 23.1 million, and the Congressional Budget Office predicted 21 million.

Since the Affordable Care Act became law, Democrats have lost majority control of the House and Senate, while opposition to the law has been constant and implacable. Despite its unpopularity, Congressmen Sander Levin and Henry Waxman, former chairs of the two House committees that had primary jurisdiction over health care reform when the law was passed, see the ACA as an important step to moving the U.S. closer to attaining universal health care. They believe Sen. Bernie Sanders’s proposal to throw away the ACA to pursue a single-payer system is counterproductive and dangerous. Levin and Waxman support Hillary Clinton as the presidential candidate who will keep the ACA moving forward.

Stung by losses under the federal health law, major insurers are seeking to sharply limit how policies are sold to individuals in ways that consumer advocates say seem to discriminate against the sickest and could hold down future enrollment.

In recent days Anthem, Aetna and Cigna, all among the top five health insurers, told brokers they will stop paying them sales commissions to sign up most customers who qualify for new coverage outside the normal enrollment period, according to the companies and broker documents.

President Barack Obama will propose reducing the bite of the unpopular “Cadillac tax” on high-cost health insurance plans in the budget he releases next week, in a bid to preserve a key element of the Affordable Care Act.

Jason Furman, the White House Council of Economic Advisers chairman, wrote in the New England Journal of Medicine that the president’s plan would reflect regional differences in the cost of health care, reducing the tax’s bite where care is particularly expensive.

“This policy prevents the tax from creating unintended burdens for firms located in areas where health care is particularly expensive, while ensuring that the policy remains targeted at overly generous plans over the long term,” Furman wrote in the Journal article.

There is little congressional appetite to revisit ObamaCare’s Cadillac tax in an election year, but that’s not stopping the coalition opposing it from campaigning about it.

Fight the 40, the coalition that includes unions and Fortune 500 companies as members, is still pushing for a full repeal of the 40 percent excise tax on employer-sponsored health benefits above a certain threshold. The tax was originally scheduled to go into effect in 2018 but was pushed back two more years in December.

“We will continue our work to highlight how the tax creates age, gender, and geographic disparities and how it impacts vulnerable demographics,” the group said in a memo shared first with Morning Consult.

Private health insurers made a Faustian bargain with Democrats in 2010: In return for supporting passage of the Affordable Care Act, the companies would be able to grow their business with subsidized customers who were required to buy insurance. How’s that working out?

Except for Dr. Faustus, not great. Democrats lost control of the House and Senate thanks in considerable part to their votes passing ObamaCare on partisan lines. And now we’re learning that private health insurers are losing money on their Affordable Care Act business, as Aetna was the latest to acknowledge on Monday during its quarterly earnings report.

The head of the third-biggest U.S. health insurer said he has “serious concerns” about whether or not ObamaCare’s new markets are sustainable, echoing criticism from other top for-profit insurers.

“We continue to have serious concerns about the sustainability of the public exchanges,” Aetna Inc. Chief Executive Officer Mark Bertolini said on a call Monday while discussing the company’s fourth-quarter results. “We remain concerned about the overall stability of the risk pool.”

Large U.S. health insurers have faced a rocky start in the Patient Protection and Affordable Care Act, which in 2014 opened up new markets where millions of Americans buy coverage, often with tax subsidies to help them afford it. Aetna is one of the biggest insurers in ObamaCare and, like its rivals UnitedHealth Group Inc. and Anthem Inc., has struggled to make a profit in the business.

Criticism of the Obama administration’s implementation of ObamaCare from the administration’s critics is not particularly surprising. There’s not much newsworthy about an administration taking fire from across the aisle. It is more notable when a prominent defender of the Obama administration acknowledges that the administration has colored outside the lines, and not always with good justification. So those interested in the Affordable Care Act and the administrative law should give Nicholas Bagley’s new paper on“Legal Limits and the Implementation of the Affordable Care Act” a careful read.