“The latest somersaults and contortions over Obamacare last month spread from courtrooms to the blogosphere, with another round of regulatory “adjustments” not far away. The common principle followed by the health law’s most energetic advocates appears to be the whatever-it-takes motto of the late Oakland Raiders owner Al Davis, “Just win, baby!”
A pair of federal appellate court decisions on July 21 (Halbig v. Burwell and King v Burwell) sent Obamacare backers cycling through at least the first three stages of grief (anger, denial, and bargaining) over the potential loss of tax credit subsidies for states with federal-run health exchanges, along with the likelihood of further unraveling of the health law’s interrelated scheme of coverage mandates and tighter insurance regulation. A 2-1 majority ruling in Halbig delivered the latest blow to the Affordable Care Act, by deciding to vacate a 2012 Internal Revenue Service rule that attempted to authorize such subsidies.
The loudest voices among the flock of pro-ACA court watchers had previously declared such a judicial decision all but “inconceivable.” For example, Henry Aaron of the Brookings Institution termed these legal challenges to Obamacare as absurd, crazy, and wacky in an April 1, 2014 New England Journal of Medicine article. Jonathan Gruber of MIT and a key architect of both Massachusetts-based Romneycare and its cloned twin Obamacare called the tax credit theory behind the cases “screwy,” “nutty,” “stupid,” “unprecedented,” and “desperate” (but that depends on which version of Gruber one chooses to sample).
Tim Jost of the Washington and Lee University School of Law and a frequent blogger on this issue at Health Affairs, continues to be often wrong, but never in doubt—at least until later events require some modest repositioning. In July 2012, he flatly asserted that “these claims are simply false” regarding contentions that final IRS rules to enable premium tax credits through federal exchanges are unauthorized by law. Jost further opined that the only viable challengers with legal standing to contest the IRS rule would be employers failing to offer their employees insurance (or at least affordable or adequate coverage), but that any such challenges would be barred by the Tax Anti-Injunction Act until probably sometime in 2015.”
“More Americans are enrolled in individual health insurance plans. In part, though, that’s because under Obamacare fewer are enrolled in group plans. And one health care analyst says this may be the beginning of a trend.
WellPoint Inc., the Indianapolis-based health insurance giant, reported in its latest quarterly earnings that its small-group business fell more than expected.
WellPoint said it ended 218,000 (or 12 percent) of those plans because employers dropped their group health coverage, and cited Obamacare’s tax credits as a reason for the shift, J.K. Wall wrote in the Indianapolis Business Journal.
Edmund Haislmaier, senior research fellow in health policy studies at The Heritage Foundation, told The Daily Signal that the drop in WellPoint’s employer group coverage “is in line with what we were seeing in the first quarter” for the insurance industry — a decrease in group plans but an increase in individual plans.
Haislmaier said many smaller businesses have dropped group coverage plans in instances where they have a higher number of low-income workers who would qualify for subsidies to buy insurance on Obamacare’s federal and state-run exchanges.”
“A year ago, investors worried that WellPoint Inc. would lose more of its small business customers than it could offset by signing up individuals in the Obamacare exchanges.
The first half of those concerns were justified—and then some. Indianapolis-based WellPoint is seeing its small business customers dump their group health plans and move their workers to the Obamacare exchanges at a faster clip this year than it expected.
Already in 2014, WellPoint has watched 218,000 members of its health plans disappear because their employers have ended their group health plans. That’s a 12-percent drop in WellPoint’s overall small group membership.
As I have reported before, the Obamacare tax credits for individuals have proven quite attractive for many employers with fewer than 30 workers. That’s not to say all are taking this route. Most other health insurers have reported that small employers are ending their health plans more slowly than expected.
But WellPoint expects the trend of its small business customers ending their group health plans to play out in just two years, with roughly $400 million in annual profit disappearing.
“We think [that] will be in a more accelerated timeframe over a shorter window of time, meaning this year and next, than over a longer period of time,” said WellPoint Chief Financial Officer Wayne DeVeydt during a July 30 conference call with investors.”
“Newly hired employees who don’t sign up for health insurance on the job could have it done for them under a health law provision that may take effect as early as next year.
But the controversial provision is raising questions: Does automatic enrollment help employees help themselves, or does it force them into coverage they don’t want and may not need? A group of employers, many of them retail and hospitality businesses, want the provisions repealed, but some experts say the practice has advantages and is consistent with the aims of the health law.
By enrolling people unless they opt out, “you’re changing the default option,” says Caroline Pearson, vice president at Avalere Health, a research and consulting firm. The health law does the same thing by requiring people to have insurance or face penalties, she says.
“You’re not eliminating people’s choice or forcing people into things they don’t want,” Pearson adds.
Under the health law, companies with more than 200 full-time workers have to enroll new, full-time employees in one of the company health plans unless the employee chooses not to join. The Department of Labor said that employers aren’t required to comply until the agency issues regulations spelling out how to do so. The department delayed its initial plan to issue regulations by 2014, and at this time there’s no additional information available about when regulations will be issued, according to a DOL spokesperson. Industry experts are split on when to expect those regulations, with some believing regulations could take effect in 2015, while others say that is unlikely.”
“The weighted average increase for plans being sold on the Obamacare California public exchange in 2015 will be 4%. So, that means Obamacare is working really well, right?
Well, wait a minute.
Let’s consider a few things:
1.This week the California insurance commissioner reported that the average unsubsidized 2014 rate increase carriers charged going into Obamacare was between 22% and 82%. That was a pretty healthy bump to get everyone into Obamacare in the first place.
2.California voters will go to the polls this fall to vote on Proposition 45. That ballot initiative would regulate health insurance rates in California for the first time. Big rate increases on part of the carriers would do a lot to get that proposition passed and very low increases would do a lot toward defeating it.
3.The health plans competing in the Obamacare exchanges are limited to tiny losses this year because of the Obamacare reinsurance program that runs through 2016. In effect, anymore underpricing they put into their rates for 2015 is subsidized by the federal government. In fact, the Obama administration recently took the statutory caps off of how much they can pay the carriers to keep their bottom line whole.”
“The recent decision of a three-judge panel in the Halbig case, if it prevails, would have a direct effect on the availability of subsidies under the Affordable Care Act (ACA). People buying coverage on their own in insurance exchanges run by the federal government would be ineligible for income-based subsidies. Depending on how you count, that would take premium subsidies away from 4.6 million people in 34 states, or 4.7 million people in 36 states if you count New Mexico and Idaho (which have signaled their intention to operate their own exchanges but are still using the federal marketplace).
Many more people are eligible for subsidies but haven’t yet signed up. We estimate (using the approach described here that a total of 9.5 million uninsured people are eligible for subsidies in federal marketplace states (or, 9.7 million people if you include New Mexico and Idaho).
Since many low and moderate income people would have difficulty affording insurance without the subsidies, this would no doubt alter the extent to which the ACA is reducing the number of Americans who are uninsured, which recent surveys peg at about 8 to 10 million.
But, there would also be two important side effects of the Halbig case.”
“A lot of attention is being paid to the dueling decisions in two U.S. appeals courts about whether the U.S. government can provide tax credits to people in federal- as well as state-run insurance exchanges. In human terms, the stakes are high: Millions of moderate-income people will not be able to afford health coverage without a subsidy, and a court ruling could gut coverage expansion in the 36 states with federally run insurance exchanges, unless states decide to set up their own exchanges. One of the cases, Halbig v. Burwell, also adds uncertainty to the enrollment process set to begin this fall, when millions more people are expecting to get tax credits–and wondering if they may be taken away.
Amid the reaction, little attention has been paid to whether Americans will perceive Halbig as a legitimate legal question or as more inside-Washington politics. The plaintiffs paint this as a case about statutory language and intent. The health-care law said that tax credits would be provided only in state-run exchanges, they argue, and it is executive overreach to provide credits in federal exchanges. Proponents of the Affordable Care Act see this as a thinly veiled game of gotcha being played over imperfect legislative language despite clear legislative intent. They believe that providing tax credits in the exchanges was always a central element of the Affordable Care Act’s strategy to expand coverage whether in state or federal exchanges–and that everybody knows it.”
“We now have two federal appeals courts that have issued conflicting rulings on a major provision of the Affordable Care Act. Those decisions are not the final word on whether residents of some states will be able to continue receiving financial assistance to buy health insurance. Here are some possible next steps:”
“1.) AEI’s Joseph Antos and James Capretta present “A health reform framework: Breaking out of the Medicaid model.” Here’s a peek:
The Congressional Budget Office (CBO) projects that about one-third of the additional insurance coverage expected to occur because of the law will come from expansion of the existing, unreformed Medicaid program. The rest of the coverage expansion will come from enrolling millions of people into subsidized insurance offerings on the ACA exchanges — offerings that have strong similarities to Medicaid insurance. Unfortunately, ample evidence demonstrates that this kind of insurance model leaves the poor and lower-income households with inadequate access to health care….
2.) “Some still lack coverage under health law,” notes The Wall Street Journal:
Months after the sign-up deadline, thousands of Americans who purchased health insurance through the Affordable Care Act still don’t have coverage due to problems in enrollment systems. In states including California, Nevada and Massachusetts, which are running their own online insurance exchanges, some consumers picked a private health plan and paid their premiums only to learn recently that they aren’t insured.
3.) “Brace for the next round of Obamacare rate shock,” comments Philip Klein at The Washington Examiner:
As insurance companies begin to propose premiums for 2015, it’s time for Americans to brace themselves for the next round of rate shock in the wake of President Obama’s health care law. There are several ways in which Obamacare drives up the cost of health insurance. The primary way is that it requires insurance plans to offer a certain raft of benefits specified by the government and to cover everybody who applies, regardless of pre-existing conditions. It then limits the amount that insurers can charge older and sicker patients relative to younger and healthier patients, driving the costs up for the latter group.
4.) “Automatic Obamacare enrollment is anti-patient,” according to Diana Furchtgott-Roth:
With a new Avalere study showing that many Obamacare participants will face premium increases in the fall, the administration’s proposed rule that would automatically reenroll Americans in their existing federal health exchange plan is likely to leave many people paying higher premiums than necessary. Plus, Uncle Sam will be unable to verify correct amounts of health insurance premium subsidies. America is not yet ready for auto enrollment in Obamacare.
“Conservative criticism of the Affordable Care Act has created the impression that liberal, “big government” ideas are driving the health-care system. But plenty of ideas that conservatives like are taking hold in health care as well. To wit:
*The number of Medicare beneficiaries in private Medicare Advantage plans reached nearly 16 million this year, a record, and the Congressional Budget Office projects that it will hit 22 million by 2020. This partial privatization of Medicare is happening despite concerns that reductions in payments to private plans (what some call over-payments) would curtail enrollment.
*More than half of people on Medicaid are enrolled in managed-care plans, which are typically run by private insurers that contract with states on a capitated, or risk, basis. More than 30 million low-income Medicaid beneficiaries are in private plans. The number is growing as states move sicker and disabled populations covered by both Medicaid and Medicare to managed care and as many states expand their Medicaid programs under the ACA, putting newly covered beneficiaries into managed care.
About 50 million Americans covered by Medicare and Medicaid at some point in the year are in private insurance arrangements. Now, this is not the block grant of Medicaid or voucherization of Medicare that some conservatives ultimately seek–just as the ACA is not the single-payer system that some liberals want–but it’s a substantial privatization, and one that has occurred largely incrementally and under the radar.”