On September 26, 2017, the Republican Senate leadership announced that the Senate would not hold a vote on the Graham-Cassidy bill, the last attempt to repeal or amend the Affordable Care Act under the 2017 budget resolution. After Senator Collins announced that she would not support the legislation, joining Senators Paul and McCain who had already announced their opposition, it became clear that it lacked the 50 votes necessary to pass. There is some discussion of trying again to address health reform in the 2018 budget resolution, which would otherwise be devoted solely to changes in the tax code.

CMS Decisions On Renewals, Maintenance Further Constrict An Already-Short 2018 Open Enrollment Period

On September 26, 2017, the Centers for Medicare and Medicaid Services, announced an enforcement safe harbor with respect to renewal notices for insurers in the non-grandfathered individual market for the 2018 open enrollment period. The guaranteed renewability requirement of the Affordable Care Act requires insurers in the individual market to provide a notice to policyholders for whom they are renewing coverage informing them that their coverage is being renewed and that they have the option to continue the coverage or choose another insurer. This notice must generally be provided before the first day of the next open enrollment period, which this year will be November 1, 2017. This notice is supposed to disclose the premium at which the coverage will be renewed.

Continued uncertainty regarding the Trump administration’s payment of the cost-sharing reduction payments caused HHS to delay the date by which insurers were required to file their rates for non-grandfathered, non-transitional plans in the individual market to September 5, 2017, and the date by which states had to approve those rate until September 20.

In light of this delay, the guidance states that CMS will not take an enforcement action against insurers who do not send a renewal notice in time to be delivered by October 31, 2017 “as long as the issuer provides such notice shortly thereafter, as reasonably possible.” CMS also encourages states to extend the same flexibility. This obviously will further reduce the time that some consumers will have available for open enrollment for 2018.

The deadline for renewal notices in the small group market and for grandfathered and transitional coverage remains 60 days before the date of renewal. Insurers that are discontinuing coverage had been earlier excused from compliance with the general 90-day discontinuation notice, but must send notices of discontinuation no later than October 31, 2017.

It is also reported that CMS will shut down HealthCare.gov for site maintenance for up to 12 hours on each Sunday during open enrollment except December 10 between 12 am and 12 pm, and overnight on the night of November 1, the first day of open enrollment. Closures for site maintenance occurred in earlier open enrollment periods as well, although HealthCare.gov’s identity management system was up for 99.99 percent of the time during the 2015 and 2015 open enrolment periods. Site maintenance closures obviously further reduce the time available for enrollment in a 2018 open enrollment period that is already only half as long as that of 2017.

HHS Draft Strategic Plan Focuses Less On Implementing ACA, More On Role Of Religion

On September 26, 2017, the Department of Health and Human Services released for comment its draft strategic plan for 2018 to 2022. The Trump administration has just begun to put its stamp on the nation’s health and social service programs. The HHS strategic plan sets out a roadmap of where it intends to go.

The plan endorses five strategic goals:

  • Reform, Strengthen, and Modernize the Nation’s Health Care System,
  • Protect the Health of Americans Where They Live, Learn, Work, and Play,
  • Strengthen the Economic and Social Well-Being of Americans across the Lifespan,
  • Foster Sound, Sustained Advances in the Sciences, and
  • Promote Effective and Efficient Management and Stewardship.

Each goal has several objectives, each of which in turn has several strategies.  The goals, objectives, and strategies cover the broad range of programs and services HHS offers.  Many are platitudinous statements about improving prevention, quality, efficiency, and access to care, and reducing disparities.

Two characteristics of the strategic plan are particularly striking.  First, there is virtually no reference to continued implementation and support of the Affordable Care Act’s coverage initiatives.  This is in marked contrast to the 2014 to 2018 HHS strategic plan, which heavily emphasized implementing the ACA’s marketplaces, insurance reforms, and Medicaid expansions. The closest the new strategic plan comes to alluding to ACA individual market concerns is a strategy, “Strengthen coverage options to reduce consumer costs,” with two substrategies:

  • Implement policies that increase the mix of younger and healthier consumers purchasing plans through the individual market, and
  • Pursue policies that foster lower premiums by reducing the rate of healthcare cost growth, and decrease average individual health insurance market rate increases.

Instead the strategic plan endorses alternative approaches to insurance coverage that emphasize consumer responsibility and choice.  One strategy found in the plan is “Strengthen informed consumer decision-making and transparency about the cost of care,” with substrategies:

  • Enhance comparison and decision-making tools, including online resources, to help Americans make informed decisions about health insurance coverage options and service cost options, and
  • Build out and broaden models that allow beneficiaries the option of controlling more of their healthcare dollars.

A different subsection includes substrategies:

  • Test pilot programs and models that partner HHS with consumer-driven demand technologies and companies to address patients as consumers, and
  • Allow consumers the opportunity to purchase customizable health insurance plans, with cost-sharing and out-of-pocket costs commensurate with benefits chosen

Other strategies elsewhere in the plan emphasize personal responsibility in safety net programs and replacing welfare with work.

The second striking characteristic of the strategic plan is its emphasis on support for religious beliefs and organizations.  One strategy “Design healthcare options that are responsive to consumer demands, while removing barriers for faith-based and other community-based providers,” includes the following substrategies:

  • Vigorously enforce laws, regulations, and other authorities, especially Executive Order 13798 of May 4, 2017, Promoting Free Speech and Religious Liberty, to reduce burdens on the exercise of religious and moral convictions, promote equal and nondiscriminatory participation by faith-based organizations in HHS-funded or conducted activities, and remove barriers to the full and active engagement of faith-based organizations in the work of HHS through targeted outreach, education, and capacity building,
  • implement Executive Order 13798 of May 4, 2017, Promoting Free Speech and Religious Liberty, and identify and remove barriers to, or burdens imposed on, the exercise of religious beliefs and/or moral convictions by persons or organizations partnering with, or served by HHS, and affirmatively accommodate such beliefs and convictions, to ensure full and active engagement of persons of faith or moral conviction and of faith-based organizations in the work of HHS, and
  • Promote equal and nondiscriminatory participation by persons of faith or moral conviction and by faith-based organizations in HHS-funded, HHS -regulated, and/or HHS-conducted activities, including through targeted outreach, education, and capacity building.

At many other places the document also emphasizes incorporating faith-based organizations into HHS programs and services.