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Implementing Health Reform: ACA-Related Litigation, Special Enrollment Periods, And Navigator Certification And Training (Updated)


August 13th, 2014

Two federal district courts have issued decisions in recent days in litigation relating to the Affordable Care Act. This post will analyze those cases as well as describe two new special enrollment periods recognized by the Centers for Medicare and Medicaid Services (CMS) in guidance issued on August 4, 2014.

A decision on motion to dismiss Indiana case regarding premium tax credits in the federally facilitated exchange.  First, on August 12, 2014, Judge William T. Lawrence of the United States District Court for the Southern District of Indiana issued an opinion in Indiana v. the IRS, one of the cases challenging the legality of the Internal Revenue Service rule recognizing the issuance of premium tax credits through the federal exchanges. There are currently four cases raising this issue pending in federal courts in Oklahoma, Indiana, Virginia, and the District of Columbia.

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Implementing Health Reform: Medicare And The ACA Marketplaces (Updated)


August 12th, 2014

On August 1, 2014, the Centers for Medicare and Medicaid Services released a set of frequently asked questions on the relationship between Medicare and the marketplaces. This is not the first guidance CMS has published on this topic, and much of the information in the FAQ was already available. The FAQ is also quite repetitive, as it answers the same questions under different headings, such as “general enrollment FAQs” and “consumer messaging,” but does contain useful information. This post briefly summarizes the FAQ.

The FAQ emphasizes the fact that Medicare and marketplaces operate independently, with little overlap. The marketplaces do not enroll individuals in Medicare or in Medicare Advantage plans and do not sell Medicare supplement plans. Indeed, exchanges cannot legally sell coverage to Medicare beneficiaries.

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Implementing Health Reform: Transferring Information Among The Exchanges, The IRS, And Taxpayers


August 8th, 2014

For better or worse, Congress decided to use our tax system and the Internal Revenue Service to operationalize two of the most important features of the Affordable Care Act (ACA): the premium tax credits that make coverage affordable to many lower and moderate-income Americans and the individual responsibility provision which ensures that healthy as well as unhealthy Americans obtain health coverage.

The tax credits are available to otherwise uninsured Americans with incomes between 100 and 400 percent of the federal poverty level. For 2014, tax credits are being received by 85 percent of marketplace enrollees and are reducing their premiums in the federally-facilitated exchanges by 76 percent.

The individual mandate is enforced through a tax that will be imposed on Americans who do have minimum essential coverage—such as employment-based coverage, individual coverage, or coverage through a government program—and who do not qualify for an exemption. For 2014, these individuals will owe a tax for each month that they lack minimum essential coverage of 1/12th of $95 per adult and $47.50 per child (up to $285 for a year) or 1 percent of their income above the tax filing limit up to the average annual cost of bronze plan ($2,448 per individual up to $12,240 for families of five or more).

In a recent post on Health Affairs Blog, Jon Kingsdale and Julia Lerche offered an excellent analysis of some of the difficulties that may be encountered during the 2014 tax filing season. In another post I described briefly recently released 2014 tax forms, as well as further guidance on tax matters. This post examines how tax reporting and filing will be handled in greater detail.

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Implementing Health Reform: King Plaintiffs Ask For Supreme Court Review


August 1st, 2014

On July 31, 2014, Michael Carvin, attorney for the plaintiffs in King v. Burwell, one of two parallel cases challenging an IRS rule allowing premium tax credits to be issued by federally facilitated exchange, filed a petition for a writ of certioriari in the United States Supreme Court. The petition asks the Court to review the Fourth Circuit decision affirming Judge James Spencer’s ruling rejecting their claim.

As was described here in detail last week, ACA opponents lost in the Fourth Circuit in a unanimous decision in King v. Burwell but won a split decision in the District of Columbia Circuit Court of Appeals in Halbig v. Burwell. Carvin is thus seeking Supreme Court review based on a split of authority between the circuits that must be resolved by the Supreme Court.

It is not the intent of this post to review the arguments in Carvin’s brief. Carvin argues that judges Griffith and Randolph made the right decision in Halbig, and that judges Gregory, Thacker and Davis in the Fourth Circuit and Edwards in the D.C. Circuit are wrong. There is really only one new argument in the petition that was not made below, namely that Congress’ intent to deny premium tax credits in states that failed to establish exchanges has now been conclusively established by statements made by Jon Gruber two years after the statute was adopted. This disregards the fact that Gruber neither drafted nor voted on the ACA and had earlier stated that premium tax credits were available in federally facilitated exchange states.

Rather than rehashing the merits, this post will discuss the timing of the petition, the basis on which it can be accepted, and the consequences if it succeeds. Nothing will happen immediately with this petition. The government has 30 days to respond, and can request additional time. The appellants then have 14 days to reply. This puts us into mid-September. It is unlikely, therefore, that the Supreme Court will decide whether or not to accept the petition until it reconvenes in October

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Implementing Health Reform: Origination Clause Challenge To ACA Dismissed (Updated)


July 30th, 2014

Another Affordable Care Act challenge bit the dust on July 29, 2014, when the District of Columbia Court of Appeals affirmed a lower court decision that dismissed Sissel v. Department of Health and Human Services. Sissel had sued claiming first that the individual mandate “is not a regulation of commerce, but purports to compel affected Americans like [himself], to engage in commerce,” and second that the “shared responsibility payment” is a tax and violates the Origination Clause because it “originated in the Senate, not the House.”

The court had little trouble disposing of Sissel’s first claim, which, the court explained, was based on a misreading of the Supreme Court’s opinion in the NFIB case. Although five justices of the NFIB Court concluded that Congress lacked the authority to enact the individual mandate as a command under the Commerce Clause, a majority of the Court also concluded that the mandate did not in fact order individuals to purchase insurance, but rather imposed a tax on those who failed to do so. The requirement was thus, as the Supreme Court had already held, constitutional.

Sissel’s second claim was based on article 1, section 7, clause 1 of the Constitution, the Origination Clause, an obscure provision few Americans remember from fifth grade civics. It provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as to other bills.” Sissel argued that the individual mandate of the ACA was a bill to raise revenue but that the ACA in fact originated in the Senate, and thus the provision was unconstitutional.

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Implementing Health Reform: What Makes A State Exchange? (Updated)


July 28th, 2014

One question that has arisen in the wake of the Halbig/King decisions is what exactly is a state exchange? The D.C. Circuit in Halbig and the Fourth Circuit in King seemed unclear as to the answer to this question. The D.C. Circuit counted 14 state exchanges, the Fourth Circuit 16.

A great deal, however, may turn on the answer. Two of the eight federal judges that have ruled on the question so far have held that only state exchanges and not federally facilitated exchanges can issue premium tax credits. Were this conclusion to be adopted in the end by the Supreme Court, which exchanges would count? In other words, how exactly does a state establish an exchange?

A careful reading of the law suggests that a state “establishes” an exchange when, exercising the legal powers of the executive or legislative branch, the state government takes certain actions, discussed below. Establishing the exchange – that is, using the power of state government to enable the exchange to operate and fulfill its responsibilities – is different from the carrying out the day-to-day operations, of the exchange, which might be carried out by public officials, private contractors, or even the federal government.

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Implementing Health Reform: IRS Releases Premium Tax Credit Rules And Draft Forms


July 25th, 2014

Although the focus of activity the week of July 21 was in the courts, the agencies were not totally silent. On July 24, 2014 the Internal Revenue Service released final and temporary and proposed regulations addressing issues that are presented by the premium tax credit program. The IRS also released drafts of the forms that individuals, insurers, and employers will use for reporting information to the IRS necessary for reconciliation of premium tax credits and for the enforcement of the individual and employer mandate programs. Finally, the IRS set the maximum individual mandate penalty for individuals whose income is high enough that they pay the penalty as a percentage of income rather than a flat dollar amount. This amount is established by the statute as the average cost of a bronze level plan for the applicable family size for 2014 and was set by the IRS at $2,448 per individual annually, up to $12,240 for families of five or more.

The draft forms operationalize the reporting requirements established by rules published earlier. Insurers and self-insured health plans will provide a Form 1095-B to each of their enrollees and members, and file these forms, together with a transmittal form 1094-B with the IRS. Large employers must provide a form 1095-C to each employee, and transmit these, together with a transmittal form 1095-B to the IRS. Exchanges will provide their enrollees a form 1095-A. Individuals who receive premium tax credits will file a form 8962 with the IRS, while individuals claiming an exemption from the individual mandate will file a form 8965. Though the forms are not accompanied by instructions, they are quite straightforward and track closely the earlier released rules.

The final and temporary rules address several situations that will arise under the premium tax credit program that have not yet been addressed by the premium tax credit rules. The temporary rules are identical to the proposed rules and will cease to apply once the proposed rules are finalized.

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Implementing Health Reform: Senator Rebuffed In Challenge To Congressional Participation In ACA Exchanges


July 23rd, 2014

The Halbig and King cases released on July 22, 2014 dramatically overshadowed another court decision released the previous day. That case, Johnson v. U.S. Office of Personnel Management, was important in its own right, however, and is covered here.

On July 21, 2014, Judge William C. Griesbach of the United States District Court for the Eastern District of Wisconsin dismissed a case brought by Wisconsin Republican Senator Ron Johnson and one of his staff members. The plaintiffs claimed that the rule promulgated by the Office of Personnel Management that allows members of Congress and their official staff to purchase health insurance through the exchanges with federal subsidies violates the Affordable Care Act and is unconstitutional. Judge Griesbach held that the plaintiffs had not been injured by the rule and thus had no standing to challenge it. This decision not only disposes of one more ACA challenge, it also calls further into question Congressman John Boehner’s proposed lawsuit challenging other ACA implementation decisions.

The ACA provides that “the only health plans that the Federal Government may make available to Members of Congress and congressional staff” are qualified health plans and plans sold through the exchange. This provision was adopted as an amendment offered by Senator Charles Grassley (R-IA), apparently to challenge the Democrats’ willingness to participate in the same program they were creating for other Americans. This challenge was embraced by the Democrats, however, resulting in the current law.

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Implementing Health Reform: Appellate Decisions Split On Tax Credits In ACA Federal Exchange


July 23rd, 2014

July 22, 2014 was arguably the most important day in the history of the implementation of the Affordable Care Act since the Supreme Court issued its ruling in the National Federation of Independent Business case in June of 2012. As no doubt most readers of this blog know by now, shortly after 10 a.m. the United States Court of Appeals for the District of Columbia Circuit handed down its decision in Halbig v. Burwell. Two judges ruled over a strong dissent that an Internal Revenue Service rule allowing federally facilitated exchanges to issue premium tax credits to low and moderate income Americans is invalid.

Approximately two hours later the Fourth Circuit Court of Appeals in Richmond, Virginia, unanimously upheld the IRS rule in King v. Burwell. Combined, the cases contain five judicial opinions, three in the Halbig case and two in King. Four of the six judges voted to uphold the rule, two to strike it down.

The Controversy

The issue in the cases is this: The ACA authorizes the IRS to provide premium tax credits to individuals with household incomes between 100 and 400 percent of the federal poverty level who are not eligible for other minimum essential coverage (such as affordable and adequate employer coverage, Medicaid, or Medicare). Premium tax credits are, however, only available to individuals who purchase coverage through the exchanges.

The ACA requests that the states establish exchanges, and sixteen states and the District of Columbia have done so. The ACA also, however, authorizes the federal government to establish exchanges in states that fail to set up their own exchanges. The federal government has done so in 34 states and is operating the individual exchange for two more. The IRS regulation allows premium tax credits to be awarded to eligible individuals in both states with state-operated exchanges and states with federal exchanges.

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Implementing Health Reform: Hobby Lobby Response, The ACA In The Territories, And More


July 18th, 2014

July 17, 2014 was a remarkably active day in an otherwise quiet week for Affordable Care Act implementation. First, the Departments of Labor, Treasury, and Health and Human Services issued their first response to the Supreme Court’s Hobby Lobby decision —a Frequently Asked Question (FAQ) guidance requiring ERISA plans to provide notice to their participants and beneficiaries if they do not intend to cover contraceptives. Second, the Department of Health and Human Services sent letters to the territories (the Virgin Islands, Northern Mariana Islands, Guam, American Samoa, and Puerto Rico) informing them that insurers that market individual insurance policies in the territories are no longer required to comply with the ACA’s insurance market reforms.

Third, HHS released an enrollment bulletin at its REGTAP website describing how insurers in the federally facilitated exchange should handle enrollment for 2015 for individuals whose coverage was terminated in 2014 for non-payment. This post describes these issuances, as well as the May Medicaid enrollment report released on July 11, 2014 by HHS

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Income Verification On The Exchanges: The Broader Policy Picture


July 14th, 2014

The Affordable Care Act scandal de jour (or at least one of them) is the difficulty the exchanges have faced in verifying the eligibility of many premium tax credit applicants. Two Department of Health and Human Services Office of Inspector General Reports in early July documented the existence of these problems. One reported that as of the first quarter of 2014, the federal exchange alone had been unable to resolve 2.6 or 2.9 million data inconsistencies. Another reported that internal controls at the federal and two state exchanges were not fully effective in ensuring that individuals enrolled in exchanges were in fact eligible.

House Republicans claim that in fact there are 4 million data inconsistencies affecting half of all enrollments. In House Energy and Commerce hearings on June 10, 2014, Republican Representative Charles Bustany Jr. claimed that $44 billion in improper payments would be made over the next 10 years. Douglas Holtz-Eakin, a former Bush Administration official, who testified at the hearings claims that improper payments may equal $152 billion. The House Energy and Commerce Health Subcommittee is holding further hearings on data inconsistencies on July 16.

The seriousness of verification issues should not be overestimated. The administration has been put in place procedures to verify carefully premium tax credit applications. Many of the discrepancies CMS is attempting to resolve do not relate to income eligibility, and those that do may result ultimately in a finding of eligibility for increased, rather than decreased, premium tax credits. A discrepancy that could result in the need for additional documentation may be as trivial as a hyphen left out of a name or a digit transposed on a Social Security number.

Unfortunately, programs proposed by Republicans and other ACA opponents that in fact make a serious attempt to cover the uninsured will require income reporting and face similar difficulties. Current reform proposals that avoid coverage eligibility determinations will not in fact cover the uninsured. While the administration could have perhaps done a better job in making eligibility determinations, any means-tested program faces a similar challenge. It is possible to design a system that does not rely on means testing and could cover low-income and high-cost uninsured Americans, as I describe below. But it would be a very different system than the ACA or alternatives currently being proposed.

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Implementing Health Reform: A Follow-Up Supreme Court Contraceptives Decision At Odds With Hobby Lobby


July 4th, 2014

On July 3, 2014, the Supreme Court decided its second contraceptive case of the 2013-2014 term, Wheaton College v. Burwell. The decision demonstrates why more Americans now believe that the justices are doing a poor job (27 percent) than believe they are doing an excellent or good job (26 percent combined), and why 76 percent of Americans believe that the justices decides cases based on their own personal and political opinions rather than legal analysis.

The Wheaton College decision seems to contradict directly the Hobby Lobby decision the Court had entered three days earlier. The Court offered virtually no justification for its change of position. Indeed, one wonders whether the men on the Court, in their haste to get out of town even bothered to read the scathing but well-reasoned dissent filed by Justice Sotomayor for the women of the Court, with which they did not engage.

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Implementing Health Reform: The Supreme Court Rules on Contraception Coverage (Updated)


June 30th, 2014

On June 40, 2014, the Supreme Court issued its opinion in Hobby Lobby v. Burwell and Conestoga Wood Products v. Burwell. The Court’s decision has very important ramifications for religious liberty in the United States, for women’s access to health care, for employers’ and employees’ rights, even for corporate law. Its importance justifies its being released on the final day of the term, an honor usually reserved for only the most notable cases. But unlike the Court’s decision in National Federation of Independent Business v. Sebelius on the last day of its term two years ago, Hobby Lobby does not pose a serious threat — indeed any threat at all — to the Affordable Care Act.

From the perspective of the ACA, the case involves only the application of one particular provision of a regulation to one particular group of employers. The Court’s decision does not invalidate any provision of the ACA. It does not even fully invalidate any regulatory requirement. It simply says that the Department of Health and Human Services must extend to one group of employers an accommodation HHS has already extended to another group.

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Implementing Health Reform: Exchange Eligibility Redeterminations; Small Employer Tax Credit


June 27th, 2014

While it seems like the 2014 open enrollment period just ended, the 2015 open enrollment period, which begins on November 15, is in fact only four and a half months away. On June 26, 2014, the Department of Health and Human Services released a proposed rule addressing eligibility redeterminations for 2015. Together with the proposed rule, HHS issued a guidance describing how the federally facilitated exchange intends to redetermine eligibility, as well as draft standard notices for health plans to use when discontinuing or renewing plans in the individual and small group market and instructions for completing those notices.

On the same date, the Internal Revenue Service released final rules governing the small employer tax credit program. This post will discuss these rules and guidances, as well as another court decision rejecting a challenge to the individual mandate and another spate of FAQs on the SHOP exchange program.

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Implementing Health Reform: Employer Orientation Periods; Risk Corridor Payments


June 21st, 2014

It has long been apparent to those of us who follow Affordable Care Act regulatory activity that the implementing agencies have a penchant for releasing rules on Friday afternoons in the 4:15 Federal Register post. True to form, at 4:15 on June 20, the Departments of Labor, Treasury, and Health and Human Services released a final rule clarifying the effect of orientation periods on a provision of the ACA that prohibits employer-sponsored health plans from imposing a waiting period of more than 90 days before the beginning of coverage for full-time employees.

Section 2708 of the Public Health Services Act, enacted through the ACA, forbids group health plans and insurers that cover groups from imposing waiting periods on new enrollees that exceed 90 days. The provision, enforced by all three agencies, is incorporated by the ACA into ERISA and the Internal Revenue Code and thus applies to all employers; it does not apply to individual plans. The agencies had released a guidance on waiting periods in 2012 and and published a final rule in 2014 The penalty for violating this prohibition is $100 per employee per day of violation.

The earlier final rule clarified that a “waiting period” is the period that may elapse before an employer must cover an employee or dependent who is otherwise eligible to enroll under the terms of a group health plan. To be otherwise eligible to enroll the employee must meet the plan’s substantive eligibility conditions (for example, being in an eligible job classification, achieving job-related licensure requirements specified in the plan’s terms, or being a full-time employee), but such requirements cannot be mere subterfuges for the passage of time. One such legitimate requirement specified in the final rule is completing a reasonable and bona fide employment-based orientation period.

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Implementing Health Reform: Premiums And Choice In The 2014 Health Insurance Marketplace (Updated)


June 18th, 2014

In the fall of 2013 the headlines were full of stories of individuals facing steep premium increases as the Affordable Care Act’s market reforms went into effect. The question was raised repeatedly whether Affordable Care Act premiums were really affordable. Commentators observed that major national commercial insurers were avoiding the exchanges and that in some states the ACA marketplace offered few choices and little competition.

On June 17, 2014, the Health and Human Services Assistant Secretary for Planning and Evaluation (ASPE) released a report surveying Premium Affordability, Competition, and Choice in the Health Insurance Marketplace, 2014. ASPE examined over 19,000 2014 marketplace plans within the four bronze, silver, gold, and platinum metal levels in each of the 501 geographic rating areas in the 50 states and the District of Columbia; the office analyzed premium levels, available choices, and market variables that might affect cost. It is always possible to find negative anecdotes (particularly if one is not too careful in checking their veracity), but when we look beyond anecdotes at the actual data, it is clear that the ACA was largely successful in achieving many of its goals for 2014.

One of the primary goals of the ACA is to make health insurance affordable to lower-income Americans. During the 2014 open enrollment period, 5.4 million individuals selected a plan in the 36 states served by the federal exchange (which are the states primarily covered by the report since state exchange data is still being assembled and analyzed). According to the report, 87 percent of these individuals qualified for a premium tax credit. They paid a premium that was, on average, 76 percent less than the full premium that they would have owed before the premium tax credit was applied.

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Implementing Health Reform: SHOP Employee Choice State Opt-Outs And Navigator Grants (Updated)


June 10th, 2014

On June 10, 2014, the Centers for Medicare and Medicaid Services released the list of federal exchange states where employee choice will not be available for the SHOP exchange for 2015. CMS had provided that the federal exchange would, beginning in 2015, permit employers in the SHOP exchange to either 1) choose a single plan for their employees, or 2) choose a metal tier (bronze, silver, gold, or platinum) and then allow employees to choose any plan offered within that tier, with the exchange aggregating premiums from the various plans chosen by employees and allowing the employer to pay a single premium. In the 2015 exchange final rule, however, CMS permitted state insurance commissioners in federal exchange states to ask that their states be allowed to opt out of employee choice for 2015 if they concluded that employee choice would cause adverse selection within their small group insurance markets.

Apparently, 18 state insurance commissioners asked that their states be allowed to opt out and all requests were granted. Federal exchange states that will not offer employee choice in 2015 include Alabama, Alaska, Arizona, Delaware, Illinois, Kansas, Louisiana, Maine, Michigan, Montana, New Hampshire, New Jersey, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, and West Virginia. Employers in these states will be able to offer their employees a single health and a single dental plan through the SHOP exchange.

Employee choice will be available in 14 states: Arkansas, Florida, Georgia, Indiana, Iowa, Missouri, Nebraska, North Dakota, Ohio, Tennessee, Texas, Virginia, Wisconsin, and Wyoming. Employers in these states will be able to either offer their employees a single health and dental plan, or offer them a choice of health plans within a single metal level and dental plans within a single coverage level.

Barring a further change in policy, employee choice will be available in all federal exchange states in 2016. Employee choice was already available in most of the state exchange states for 2014, and presumably will continue to be so in 2015

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Implementing Health Reform: Medicaid And CHIP Enrollment; Data Verification (Updated)


June 5th, 2014

Throughout the spring of 2014, the Department of Health and Human Services (HHS) has issued monthly reports on enrollment in the federal and state exchanges (marketplaces) and on applications, eligibility determinations, and enrollment in the Medicaid program.

With the close of the 2014 exchange open enrollment period, HHS has ceased issuing exchange enrollment reports, even though exchange enrollment continues to fluctuate as new enrollees join through special enrollment periods and current enrollees terminate their plans or are terminated, for example, for nonpayment. The Centers for Medicare and Medicaid Services (CMS), however, continue to issue Medicaid reports.

On June 4, 2014, CMS released the April 2014 Medicaid and CHIP Monthly Applications, Eligibility Determinations and Enrollment Report. As has been the case with earlier reports, the data are subject to so many qualifications as to offer only a rough approximation of current Medicaid enrollment or activity.

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Implementing Health Reform: State Opt-Outs From Employee Choice In SHOP And Other Developments


June 4th, 2014

If any further evidence were needed that the release of Affordable Care Act regulations has largely ceased for the immediate future, the Office of Management and Budget Spring Unified Agenda of Regulatory and Deregulatory Actions provides it. The Regulatory Agenda reveals that the Department of Health and Human Services (HHS) is currently working on final rules governing third party payments of qualified health plan (QHP) premiums and fair hearing and appeal procedures for Medicaid and exchange enrollment, as well as proposed rules for accepted benefit plans and, eventually, the 2016 notice of benefit and payment parameters; however, nothing seems likely to be released very soon.

The Internal Revenue Services (IRS) is drafting proposed rules on reporting of minimum essential coverage and final regulations on reporting of information for health insurance exchanges, defining minimum value for employer coverage, and determining whether employment-related health insurance is affordable for the family of an employee (the family glitch). It is also working on further regulations addressing the small employer premium tax credit, minimum essential coverage and other individual responsibility requirement issues. Most of these are topics on which the IRS has already provided partial rules, interim final rules, or other guidance, and no major new developments are anticipated imminently.

State opt-outs from employee choice in the 2015 SHOP exchange. Despite the lull in rulemaking, HHS continues to be very active at the subregulatory level as it prepares for 2015. In particular, Centers for Medicare & Medicaid Services (CMS) has been very focused on getting the SHOP exchange operational. CMS failed to implement many elements of the SHOP exchange program for the 2014 open enrollment period, including employee plan choice and aggregation of premiums. These elements were to be implemented for 2015.

Under the 2015 Exchange Rule, however, state insurance commissioners were allowed to ask that their states be excused from employee choice in the SHOP exchanges by submitting to CMS a written recommendation “adequately explaining that it is the State Insurance Commissioner’s expert judgment, based on a documented assessment of the full landscape of the small group market in his or her State, that not implementing employee choice would be in the best interests of small employers and their employees and dependents.”

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Repeal, And Replace, The Employer Mandate


June 4th, 2014

As it enters its fifth year, the Affordable Care Act has chalked up an impressive list of accomplishments. More than 8 million Americans have chosen a health plan through the ACA exchanges. At least another five million have likely enrolled in Medicaid. The minimum medical loss ratio requirement has saved privately insured Americans billions of dollars, while the closing of the doughnut hole has saved Medicare beneficiaries billions more. The percentage of Americans who are uninsured is dropping precipitously and is already at the lowest level it has been for years.

Recent polling, however, seems to show that Americans are not yet impressed — a majority still oppose the Affordable Care Act. Significantly, however, polling also consistently shows that Americans are not giving up on the law–a substantial majority of Americans are against repealing the ACA and would rather that problems with the ACA be fixed. Support for amending the law should create an opening for lawmakers who can identify real problems with the ACA and propose practical solutions.

One provision of the ACA that cries out for repair is the employer mandate. The Urban Institute has recently raised the question, “Why Not Just Eliminate the Employer Mandate?Conservative advocacy groups have called for its repeal for some time. Repeal of the employer mandate might, in fact, not be such a bad idea, as long as the current mandate was replaced with a better alternative.

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