As congressional Republicans tried to adopt one bill after another all summer long by narrow partisan margins, they kept hearing the same message from Democrats and others: Why not try bipartisanship? Why not hold hearings, as the Democrats did in the spring and summer of 2009 leading up to the adoption of the ACA, and hear what stakeholders and experts from across the political spectrum think needs to be done to fix health care.

The Hearing Line-Up

As September begins, the Senate has scheduled a host of hearings. The Senate Health, Education, Labor, and Pensions Committee, led by Senators Lamar Alexander (R-TN) and Patty Murray (D-WA), is hosting the most extensive hearings, collectively titled “Stabilizing Premiums and Helping Individuals in the Individual Insurance Market for 2018.” Yesterday, September 6, 2017, they heard from five state insurance commissioners. Today, September 7, they heard from five governors—three Republican and two Democratic, but all moderate in their orientation.

On September 12, 2017 the Committee will hear from a health plan executive, the CEO of a state exchange, a former Republican Health and Human Services Secretary, an actuary, and the representative of an advocacy group that opposes government financing and regulation of health care. The final hearing on September 14 will include a hospital CEO, and insurer vice president, a representative for an organization that advocates for health care for young people, the head of a group that sponsors health fairs, and another insurance commissioner.

The Senate Finance Committee is also holding hearings. It will hold a hearing on the CHIP program, whose current funding appropriation ends on September 30, on September 7. The Finance Committee will hold another hearing on September 12, on “Health Care: Issues Affecting Cost and Coverage,” hearing from conservative advocates Avik Roy and Edmund Haislmaier and former Obama administration CMS acting administrator Andy Slavitt and HHS Senior Counsellor Aviva Aron-Dine.

Improbably, the Senate Homeland Security and Government Operations Committee will hold a hearing on “the History and Current Reality of the American Health Care System” on September 6, hearing from three health care system researchers. And simultaneously, the Senate Appropriations Committee is marking up the Labor, HHS, and Education appropriations bill.

What The Insurance Commissioners Had To Say

The September 6 HELP Committee hearing featured two Republican insurance commissioners, two Democratic commissioners, and one non-partisan commissioner. Commissioner Mike Kreidler from Washington and former Pennsylvania Insurance Commissioner Teresa Miller both come from states that embraced the ACA, expanded Medicaid, and tried to make their individual insurance markets work. Both states have seen the proportion of their population that is uninsured drop dramatically. Both states have enjoyed reasonably stable and competitive insurance markets and moderate premium increases, but that stability is now threatened—depending on what happens at the federal level, insurers could demand sizeable premium increases for 2018.

Commissioner Lori Wing-Heier of Alaska presides over perhaps the most problematic individual insurance market in the United States. Alaska has a small population and very high health care costs. It has seen dramatic premium increases and insurer exits under the ACA. Alaska has also seen its uninsured population shrink, while insurance remains affordable for consumers eligible for premium tax credits. Alaska has recently obtained federal approval for a 1332 state innovation waiver to operate a reinsurance program that has dramatically reduced projected premium increases, although insurance is still unaffordable for many without assistance.

Tennessee’s Republican insurance commissioner, Julie Mix McPeak presides over a market where premiums have dramatically increased while choice has decreased since the ACA was adopted, although she recognizes that benefits are better under the ACA. At one point this year it looked like Tennessee would have counties without any individual market insurers for 2018, and currently 78 of its 95 counties only have one insurer offering coverage for 2018.

Commissioner John Doak of Oklahoma has been the most stalwart opponent of the ACA among insurance commissioners. Oklahoma’s individual market has problems—loss of insurers, significant premium increases, narrowing of networks. But Oklahoma has steadfastly refused to take steps that could improve its market, such as expanding Medicaid or ending transitional plans, which have kept healthy consumers out of the exchange market. Oklahoma has adopted legislation that would segment insurance markets through association health plans and sale of insurance across state lines. Commissioner Doak’s primary demand is that the federal government get out of the business of regulating health insurance and let the states—and market forces—direct insurance markets.

Although the insurance regulators are coming from different political orientations and different insurance markets, there was a certain amount of consensus around recommendations for stabilizing individual insurance markets presented in their prepared testimony. Commissioners Mix McPeak, Wing-Heier, Kreidler, and Miller all labeled funding cost-sharing reduction reimbursements to insurers as among their highest priorities, while Commissioner Doak grudgingly admitted that not funding the CSRs would exacerbate Oklahoma’s problems. Commissioners Mix McPeak, Miller, and Kreidler called for a federal reinsurance program, while both Alaska and Oklahoma have submitted 1332 waivers to establish reinsurance programs.

Commissioners Kreidler, Wing-Heier, and Miller endorsed continued enforcement of the individual mandate, which Commissioner Doak opposed. Kreidler, Miller, and McPeak called for continued support for outreach and enrollment, with Miller and Kreidler criticizing recent administrative cuts in these programs, including the navigator program. Commissioner Doak called for the end of the navigator program, claiming that it has disrupted enrollment efforts by agents and brokers.

All commissioners supported greater flexibility for the states. Commissioners Miller, Kreidler, and Wing-Heier spoke in favor of a more flexible 1332 waiver process, although Commissioners Miller and Kreidler emphasized the importance of maintaining the 1332 program’s “guardrails” that keep waiver programs from undermining the coverage and affordability goals of the ACA. Commissioner Mix McPeak asked for greater flexibility for states to determine age rating (how much premiums vary for consumers of different ages), while Commissioner Doak called for returning all control over insurance markets to the states.

Finally, Commissioners Doak, Miller, Mix McPeak, and Wing-Heier called on Congress to address the underlying problem of health care costs, particularly pharmaceutical costs, which drive premiums ever higher. Commissioners Doak and Wing-Heier specifically mentioned the health insurance tax, which will return in 2018 after a one-year moratorium, as a factor driving up costs.

Alexander And Murray Weigh In

In their opening statements both Committee Chair Alexander and Ranking Member Murray stressed the need for quick and bipartisan action for stabilizing individual insurance markets. Senator Alexander stated that the committee needed to reach consensus by September 15 for Congress to take action in time to affect 2018 rates. He noted that the HELP committee has jurisdiction over the CSRs and 1332, but not over taxes (including the ACA tax credits), Medicare, or Medicaid.

Senator Alexander called for a bill that would include two elements: an appropriation of funding for reimbursing insurers for cost-sharing reductions for 2018, and amendments to the 1332 innovation waiver process to provide more flexibility. He suggested retaining protections for people with preexisting conditions and for coverage of adult children to age 26 (both of which provisions are not subject to 1332), but also called for unspecified other flexibility in 1332 waivers. Although Democrats are likely to agree to greater procedural flexibility, such as shorter turnaround times for waiver approval, allowing states to waiver essential health benefit requirements or to redirect subsidies from lower- to higher-income consumers are likely to be resisted. Conspicuously missing from Senator Alexander’s opening statement was mention of a federal individual market reinsurance program, which has been frequently identified as a necessary measure to stabilize the individual insurance market, including by several of the witnesses.

Senator Murray in her opening statement also affirmed the need for rapid, bipartisan action. She stressed the need, however, for funding the CSRs through 2019 to give insurers more stability. She did not specifically discuss 1332, but stressed the importance of maintaining the ACA’s guardrails.

Next up are the governors.

Toting Up Compliance Costs

On August 24, 2017, the Centers for Medicare and Medicaid posted at their Paperwork Reduction Act website a supporting statement for new collections of information from web brokers, conventional agents and brokers, navigators, and other assisters with respect to requirements imposed through the 2018 payment rule and other program requirements.

The 2018 payment rule amended the requirements governing web broker information displays and the responsibility of web-brokers for agents and brokers who use their websites, as well as procedures governing suspension and termination of agents and brokers for violation of program requirements.  The supporting statement describes the projected cost of compliance with these requirements, including paperwork obligations imposed on an estimated 114 web brokers, 100 web brokers who allow other agents and brokers to use their websites, and 45 conventional agents and brokers (out of a total of 100,000) who might face a notice of termination or suspension of their federally facilitated exchange participation agreements in year, 40 of whom might request a reconsideration of the decision.

Finally, the statement estimates the paperwork burden imposed on 102 navigator and 3,000 certified application counselor entities of maintaining compliance with existing privacy and confidentiality requirements.