One of the main causes of instability in the Affordable Care Act (ACA) health exchanges, aside from the constant stream of repeal-and-replace efforts, is the uncertainty over the future of the cost-sharing reduction (CSR) payments. CSR and the advanced premium tax credits (APTC) are subsidies created by the ACA to enhance the affordability of the qualified health plans sold on the health exchanges. Whereas the APTC reduces the cost of premiums to beneficiaries with incomes between 100 and 400 percent of the federal poverty level, CSR lowers the out-of-pocket expenses of beneficiaries with incomes between 100 and 250 percent of the federal poverty level.

Unlike the APTC, whose legal status is not in question, the U.S. House of Representatives had challenged the appropriation status of the CSR payments by filing a lawsuit against the Obama administration, thereby creating doubts about CSR’s future. In addition to the said litigation, the current administration has compounded the uncertainty by often withholding the CSR payments until the 11th hour and threatening to terminate the payments completely.

This uncertainty comes at a cost. Some insurers have cited the uncertainty as one of the reasons for their exodus from the health exchanges while others have referenced the uncertainty as a source for their 2018 premium hikes. While the extent of the premium increase is yet to be determined, a study by the Kaiser Family Foundation estimated that without CSR payments, the insurers would need to raise silver plan premiums by about 19 percent.

Can States Step In?

What can States do if the administration follows through on its threat to terminate the CSR payments? A simple solution is for the States to provide the CSR payments themselves. In addition to making health insurance affordable, CSR payments are cost effective: The provision of CSR payments by the Federal government lowers the silver plan premiums offered on the health exchanges because the insurers are compensated for the reduced cost-sharing they are required to provide. Without the CSR payments, insurers will raise silver plan premiums—including the premiums for the benchmark silver plans—to offset their losses, which leads to higher APTC for all eligible beneficiaries, ultimately resulting in greater overall Federal expenditure. The aforementioned Kaiser Family Foundation study quantified this effect by demonstrating that if CSR payments were terminated in 2018, although the Federal government would save $10 billion from not making the CSR payments, it would have to pay an additional $12.3 billion in APTC, thus increasing overall Federal expenditure by $2.3 billion.

Creating a State-administered CSR mechanism will undoubtedly require expenditure from the State. While some will argue that the limited resources available in State budgets would render the idea all but theoretical, it would be beneficial to examine how States can use Section 1332 of the ACA to fund—and potentially profit from—providing CSR.

The California Example

The intricacies of a Section 1332 State Innovation Waiver (1332 Waiver) have been explained in depth elsewhere, but on a fundamental level, Section 1332 of the ACA permits a State to apply for a waiver to modify or waive certain provisions of the ACA, such as the individual mandate and the establishment of health exchanges, among others. The waiver application must satisfy four statutory constraints—comprehensiveness, affordability, scope of coverage, and will not increase the Federal deficit—but should an application meet all the criteria, the State is eligible to receive any APTC or CSR that the State would have otherwise received without the 1332 Waiver. In layman terms, if a State can create a system that meets the Federal standard at a cost that is the same or less than the existing Federal model, the State gets to keep the money the Federal government would have otherwise spent.

Using California as an example, Covered California showed that the termination of CSR payments by the Federal government would cause insurance premiums for silver plans in the individual market to increase by 16.6 percent in 2018. The study also showed an inverse relationship between CSR and APTC: The Federal government paid $750 million in CSR payments in 2016, but if it were to defund CSR payments, not only would it not receive any savings, it would incur an additional $976 million in APTC spending. Using these figures as illustration, if the Federal government had terminated CSR payments in 2016 and if California had provided CSR payments through a 1332 Waiver, under this scenario California would have to pay $750 million in CSR payments, but it would receive $976 million from the Federal government in lost APTC payments—payments California would have otherwise received without waiver—ending up with a total net profit of $226 million! California could use the profit to create a reinsurance program to bolster its health exchange, to increase payments to providers, or it could spend the excess on non-health related projects like fixing potholes and infrastructure because there is no restriction on the usage of the excess pass-through funding.

Even without a lengthy legal analysis, it is obvious this waiver satisfies all the statutory constraints: (1) since the waiver does not modify the Essential Health Benefits or any coverage requirements, it meets the comprehensiveness test; (2) since the waiver would lower premiums and out-of-pocket costs, it would actually improve affordability; (3) since the waiver would improve affordability, it is expected to increase scope of coverage; and finally (4) the numbers show that the waiver will not increase the Federal deficit. In fact, it should be intuitive why this proposal would meet the requirements of the ACA — it was built to be part of the ACA to begin with.

While the Administration isn’t obligated to approve any waiver applications, a 1332 Waiver application that creates a State-operated CSR payment mechanism—and uses the excess pass-through funding to finance a State reinsurance program—is conceptually consistent with the Administration’s emphasis on enhanced State flexibility and empowerment. The first executive order by the Administration, for example, promised to provide greater flexibility to the States under the ACA. Moreover, the Secretary of Health and Human Services recently sent a letter to State governors encouraging the application of 1332 Waivers and even provided a checklist to help expedite the process.

Given the cost-saving advantages of CSR payments, it is puzzling that the Federal government would consider terminating this effective subsidy. In addition to the money the Federal government would save, forcing States to spend the time and expense to develop and administer separate CSR operations also argue against ending Federal CSR payments. Indeed, even Republican members of Congress have begun to warm to the idea of continuing CSR payments. However, should the Federal government decide against it, States have a viable, and potentially profitable, means of administering CSR payments to stabilize their insurance markets.