On the Trump Administration’s 100-day mark, here are the top two health policy issues to keep on your radar.
Number One: The Rebirth of the American Health Care Act (AHCA).
Well, maybe. Since the death of the first iteration of the AHCA just over a month ago, we have heard repeatedly that the Republican effort to repeal and replace Obamacare is not done yet. The most recent MacArthur Amendment aims to address concerns of the Freedom Caucus that the AHCA left too much of Obamacare in place. Let’s be clear: this version keeps all the problematic aspects of the original, only now consumers may have even fewer protections. Specifically, states can choose to waive certain aspects of the law, eroding consumer protections in three ways:
- State-Specific Essential Health Benefits: The Affordable Care Act (ACA) created 10 essential health benefits that health plans in the marketplaces must cover. This list of benefits was designed to ensure that health insurance would provide adequate coverage for the most common and critical health services.
Amendment Implications: States could seek a waiver to set their own essential health benefits. Because the prohibition on lifetime and annual limits created by the ACA only applies to essential health benefits, this would also mean that states would be given the freedom to decide what to do with those protections as well.
- Rating Based on Health Status: Community rating requires that health plans cannot charge people more because of their health status, gender, age, or lifestyle characteristics. Prior to the ACA, health plans in the individual market used experience rating to set premiums—in other words, they could use information about past health care use, pre-existing conditions, gender, age, you name it, to set premiums as high as they wanted. This generally meant that if you were old and sick and tried to purchase insurance in the individual market, you would have exorbitantly high premiums or be denied coverage all together. The ACA moved much closer to community rating—often referred to as modified community rating—allowing insurers to set premiums only based on geographic area, individual vs. family enrollment, age, and tobacco use.
Amendment Implications: States could get a waiver to allow insurers to use health status in setting premiums for individuals who do not maintain continuous coverage. To get this waiver, states would need to take advantage of the Patient and State Stability Fund and participate in the newly created Federal Invisible Risk Sharing Program (FIRSP) or other risk mitigation program to help protect insurers against high-risk, high-cost enrollees. Importantly, these reinsurance programs aim to keep insurers in the market and make them more willing to insure higher risk, sicker people. However, they do not help consumers after insurance companies decide to raise the premiums. All of this is reminiscent of the pre-Obamacare days when people who were sick and needed health insurance would be priced out of the market.
- Higher Age Rating: The ACA established a guideline that insurers in the individual market could charge older adults no more than three times that of younger adults. The original version of the AHCA bumped that ratio to 5:1.
Amendment Implications: States can get a waiver to go even higher than the 5:1 ratio, making health insurance premiums more expensive for those who are older.
To get any of these waivers, states need to show how the waiver would do one or more of the following: lower average premiums, increase enrollment, stabilize the health insurance market, stabilize premiums for people with pre-existing conditions, or increase choice in the marketplace. While these are laudable goals, it would not take much for states to check one of these boxes. If states chose to implement these waivers, consumer protections would be severely undermined.
Shortly after the text of the amendment was released, astute analysts reported that Congress had exempted themselves and their staff from being subject to any of these state waivers—in other words, this plan was fine for the rest of America, but they did not want to risk losing these protections. More recently, Representative Tom MacArthur (R-NJ), co-chair of the more moderate Tuesday group, proposed an amendment to eliminate the exemption. Now, nobody seems to want to take responsibility for putting the exemption in there in the first place.
With this new amendment, the House Freedom Caucus has declared its support for the AHCA. Now, the question is whether the moderate Republicans will come on board. To date, many of the same stakeholder groups who opposed the AHCA the last time—American Hospital Association, American Medical Association, AARP—have restated their opposition to this version of the bill. Apparently, President Trump is “disappointed” that the House has not been able to get this through. Speaker Paul Ryan said they will vote when they have the votes. So far, they don’t.
Number Two: Cost-Sharing Subsidies On the Line.
Cost-sharing subsidies (aka, the cost-sharing reduction program) were created in the ACA to reduce the burden of out of pocket costs for low-income beneficiaries (between 100 and 250% of the federal poverty level). For these individuals, the health insurance company provides a plan with a higher actuarial value and lower out of pocket limits to the beneficiary, and the federal government reimburses the health plan for passing on those subsidies to consumers.
Funding the cost-sharing subsidies has been the subject of an ongoing legal battle. In November 2014, House v. Burwell was born. House Republicans sued the Obama Administration claiming that these subsidies were not legitimate because Congress never authorized the payments. In May 2016, U.S. District Court Judge Rosemary M. Collyer ruled against the Obama Administration, saying, “Congress is the only source for such an appropriation, and no public money can be spent without one.” Following that ruling, the government was allowed to continue the subsidies pending appeal by the Obama Administration.
When the Trump Administration took over, many speculated that Trump would drop the appeal, effectively ending the cost-sharing subsidies overnight. Given that these subsidies would be eliminated entirely in the AHCA, on the surface it would seem that this would be an easy policy decision for the Trump Administration.
However, the existence of these cost-sharing subsidies is deeply intertwined with the stability of the individual health insurance marketplaces. If the payments to insurers are stopped by the Trump Administration or the Courts, and Congress does not appropriate the funding, health plans would still be required to provide these higher value plans to eligible consumers, footing the bill on their own. This adds to the already worrisome trend of health insurers leaving the marketplaces.
Health insurers have continuously asked for confirmation from the Trump Administration about whether or not they will continue to fund them. This week, Anthem gave an ultimatum, threatening to pull out of the marketplaces if they do not have assurance by June that the cost-sharing subsidies will be there next year.
These subsidies are estimated to cost $7 billion in 2017, increasing to $16 billion by 2027. A recent analysis by the Kaiser Family Foundation suggests that if insurance companies are left with the bill and they choose to stay in the marketplaces, they will be forced to raise premiums to cover the added costs. In turn, because the federal government pays premium tax credits for people between 100 and 400% of the federal poverty level—and these tax credits operate as premium caps—the amount the government would spend overall may actually go up.
These subsidies have been batted back and forth as leverage in the recent budget and health care debates. Democrats have called for the subsidies to be appropriated as part of this year’s budget bill, so the court case can be laid to rest, and insurers can stay put. On the other side, President Trump tried to use the cost-sharing subsidies as a way to convince Democrats to get on board with the GOP health care proposal. In the meantime, we remain in limbo.
Despite the ongoing uncertainty, 100 days in, Obamacare remains the law of the land.