The Centers for Disease Control and Prevention (CDC) have released their Health Insurance Coverage: Early Release of Estimates from the National Health Interview Survey, January to March 2017. The survey shows that during the first three months of 2017, 500,000 fewer people were uninsured than in 2016, but 20.5 million fewer than in 2010. The former change is not statistically significant; the latter number is significant in every respect.

This pattern is repeated throughout the report. By every measure, insurance coverage improved for every group measured—children, adults, young adults, the poor, the near poor, the non-poor, Hispanics, blacks, Asians, whites, and others—in 2013, 2014, and 2015, but has not changed significantly since. Although small changes were noted for 2017, virtually none were statistically significant.

Another steady change since 2010 has been the growing prevalence of high-deductible health plans, with or without a health savings account. The percentage of persons under age 65 with private insurance coverage covered with a high-deductible health plan (with a deductible of at least $1,300 for an individual or $2,600 for a family) has increased from 25.3 percent in 2010 to 42.3 percent in the first three quarters of 2017. Sixty percent of these enrollees do not have a health savings account. As the percent of Americans who are insured has steadily increased, the percent who are largely self-insured for most of the medical costs they experience continues to increase as well.

Briefs Filed Supporting Insurer In Risk Corridor Payments Case

On August 28, 2017, a number of amicus briefs were filed in the federal circuit court of appeals in support of the claim of Moda Health Plans in its risk corridor case. Moda is one of dozens of insurers that are suing the federal government in the Court of Claims, asserting their rights to full payment of their claims under the Affordable Care Act risk corridor program. The risk corridor program was supposed to require the government to share risk with insurers that suffered excessive losses offering coverage through the ACA exchanges during the first three years of the exchanges operations, as well as to recoup funds from insurers that enjoyed excessive profits.

After insurers had begun program participation, Congress passed an appropriations rider to limit payments to the amount collected from insurers, a limitation not found in the ACA itself. Limiting payments to collections for 2014, the Department of Health and Human Services paid out only 12.6 cents per dollar of claims, and again limited payments to collections for 2015. Moda and other insurers sued for full payment.

Moda was the first insurer to prevail in a risk corridor case in the Court of Claims. The government appealed Moda’s judgment to the federal circuit court of appeals, which hears appeals from the Court of Claims. The appeal was assigned to the same appellate panel as the insurer’s appeal in another case which the government won.

Moda filed its brief defending its judgment on August 21, 2017. Moda argues that the court properly concluded that the ACA entitled it to payment of its risk corridor claim; its entitlement did not depend on a specific appropriation but could be satisfied from the federal judgment fund; the appropriations rider did not limit its claim; and the government is liable to it for breach of contract.

On August 28, 2017 amicus briefs were filed in Moda’s support by the Blue Cross Blue Shield Association, the Association of Community Affiliated Plans, and another insurer. The most interesting amicus brief, however, was filed by the National Association of Insurance Commissioners. The NAIC does not address at any length the legal issues in the case, but rather emphasizes the problems that the government’s failure to fund the risk corridor program has caused for state regulators and insurance consumers.

The NAIC notes that the funding failure, and the ongoing uncertainty regarding the risk corridor program, has

  • badly skewed insurer rates for exchange plans;
  • played a major role in the demise of the CO-OP program;
  • suppressed insurer participation and competition in the exchanges;
  • created problems for regulators in providing guidance for oversight of insurer capitalization:
  • burdened insurance commissioners acting as receivers of insolvent insurers;
  • compromised state guaranty funds; and
  • left consumers with unpaid claims.

A group of 19 states spanning the political spectrum have also asked for permission to file an amicus brief in Moda’s support. The states note that their rate approvals for individual market plans in 2014 were based on the availability of risk corridor payments and the curtailment of those payments has driven up premiums and imposed regulatory burdens on the states, including the burden of dealing with insurer insolvencies.

Latest Map Shows No Bare Counties

In other news, CMS released on August 30, 2017, another county-specific map of exchange insurer participation, showing that there are, at least for the moment, no bare counties left without insurers offering plans through the exchanges.