After Repeal of ACA Fails, Feds Could Still Make Broad Changes, Watchers Say
By Frank Klimko
Although legislative efforts to repeal and replace the Affordable Care Act have stalled, the Trump administration can make regulatory modifications to the health care reform law to keep insurance companies in the individual exchanges and strengthen the markets, observers said.
"You can end up making changes, changing the exchanges a little bit and making the subsidies different to create a workable and survivable system," said Merrill Matthews, resident scholar at the Institute for Policy Innovation, an independent, nonprofit public policy research organization.
House Speaker Paul Ryan, R-Wis., on March 24 pulled from the House floor the American Health Care Act (HR 1628) after it became clear it would not pass. At a follow-up press conference, Ryan said "we will be living with Obamacare for the foreseeable future" (Best's News Service, March 24, 2017).
With the demise of the AHCA, attention now focuses on Tom Price, head the U.S. Department of Health and Human Services and a longtime ACA critic.
"My feeling is that Tom Price has a lot of leeway in the law and from precedent," Matthews told Best's News Service. "Can he change it to make it easier for people to opt out," of the individual mandate?
One change that was included in the final version of the failed AHCA was to slim down the ACA requirement that insurers cover 10 essential benefits, such as maternity care, mental health services and prescription drug coverage, Matthews said.
"That would give insurers the freedom to come up with more innovative plans," Matthews said. "That would help the markets a lot."
Even before the bill failed last week, Price tweeted that HHS was looking at the statutory requirements of the ACA and ways it could be transformed.
"Should he choose, I believe the secretary can turn the tables, using the same rules to help the agent community," B. Ronnell Nolan, president and chief executive officer of the Health Agents for America Inc., told Best's News Service. "Just defunding the (ACA) navigator program would give the federal government $60 million for the next two years."
But will the Trump administration want to prop up the health care reforms it had promised to repeal? asked Larry Levitt, senior adviser at the Kaiser Family Foundation, via twitter.
Trump suggested he may allow the exchanges to collapse under their own weight. The Congressional Budget Office recently said in most areas of the country, insurance markets would be stable under the ACA or the House GOP alternative.
"The ACA marketplaces weren't collapsing, but they could be made to collapse through administrative actions," Levitt said. "What the Trump administration says and does over the next couple months will greatly affect insurer participation and premium increases."
The HHS has already made some moves. Earlier this year, the Centers for Medicare and Medicaid Services issued new proposed rules for the 2018 enrollment year. The rules would shorten the enrollment period for 2018; tighten eligibility during special enrollment periods; and allow carriers to refuse to cover anyone who hasn't paid their premiums (Best's News Service, Feb. 15, 2017).
Finalization of those rules would be very helpful for market stability, according to a statement from Americas Health Insurance Plans. "Americans deserve a strong, stable individual market that delivers affordable coverage and access to quality care," AHIP said.
The National Association of Health Underwriters agreed. "Our main concern right now is market stability and we will be working on needed changes to that via the regulatory route with HHS," NAHU said in a statement, "as well as the other agencies with regulatory authority over health plans."
Another potential industry headwind is whether the government will withdraw from a lawsuit to decide the fate of the ACA cost-sharing program, which reduces deductibles and co-pays for exchange participants. It is pending in a federal appeals court (Best's News Service, Dec. 6, 2016).
Without clearing up the issues involving the cost-sharing payments or the individual mandate, insurers remained uncertain.
"Although the AHCA is off the table for now, we are currently unable to make an informed decision about whether to participate in 2018 in the individual marketplace without additional clarity on a couple of key issues," J. Mario Molina, Molina Healthcare Inc. CEO, said in a statement. "If cost sharing reductions are removed or the individual mandate is not enforced, we still expect premiums to increase significantly, which will impact the viability of the marketplace."
In February, the CMS gave insurers more time to submit rate requests for 2018. Those operating in states without an effective rate review program would have until June 1; those in states with such a review would have until July 17. Final rates would be released on Nov. 1.
An overarching question is whether the Trump administration will try to incapacitate the ACA via the regulatory process, Ron Pollack, executive director of Families USA, told Best's News Service.
"Not only is the Affordable Care Act not in a death spiral but support has edged up and will continue to increase," he said. "The Affordable Care Act is here to stay."