What Liberals Won’t Tell You About Pre-Existing Conditions

The Kaiser Family Foundation released its monthly tracking survey on Wednesday, with results designed to give liberals a big boost: “The majority of people in a new poll say it’s important to them that Obamacare’s protections for people with pre-existing conditions aren’t endangered.”

Unfortunately, that doesn’t tell the entire story. Voters do like the idea of “protections for people with pre-existing conditions” in the abstract. But when pressed, they express significant qualms about the very real trade-offs.

Moreover, large majorities of voters said it was “very important” to retain provisions “prohibiting health insurance companies from denying coverage because of a person’s medical history” (76 percent) and “charging sick people more” (72 percent). Smaller but still sizable majorities of Republicans (58 percent in both cases) supported each issue.

What the Poll Did Not Ask

The poll looked at views about pre-existing conditions in a vacuum and did not attempt to examine trade-offs of the policy, or whether individuals valued one policy over another. For instance, among Republicans, repealing Obamacare proved more popular than preserving the pre-existing condition provisions.

Nine percent of Republicans considered Obamacare repeal the “single most important factor” in their vote, with another 49 percent calling it a “very important factor.” Compared to that combined 58 percent support, pre-existing condition provisions won 51 percent support, with 8 percent calling them the most important factor, and 43 percent calling them very important.

Kaiser also did not ask any questions about the trade-offs associated with the pre-existing condition provisions, and whether those trade-offs would soften voters’ support for them, even though it has done so on other issues in the past. Last July, a Kaiser poll demonstrated how telling people who initially support a single-payer system that such a change could lead to higher taxes or greater government control caused support for single-payer to drop by roughly 20 percentage points:

Thankfully, last year the Cato Institute conducted a survey that did examine the trade-offs of the pre-existing condition provisions, with revealing results:

  • Initially, voters approved of “requir[ing] insurance companies [to] cover anyone who applies for health insurance, including those who have a pre-existing medical condition” by a whopping 77-20 percent margin.
  • But when asked if they would approve of such a requirement “if it caused the cost of your health insurance to go up,” voters disapproved of this provision by a 35-60 percent margin. If the pre-existing condition provisions raised premiums, support declined by 42 percentage points, and opposition rose by 40 percentage points.
  • Voters likewise initially approved of the Obamacare provision “that prohibits health insurance companies from charging some customers higher premiums based on pre-existing conditions” by a 63-33 percent margin.
  • Here again, however, if charging all individuals the same rates meant “the cost of your health insurance would go up,” support dropped by 24 points (from 63 percent to 39 percent), while opposition rose by 22 points (from 33 percent to 55 percent). Opposition also rose dramatically if voters thought the pre-existing condition provisions would cause taxes to rise, or the quality of care provided to decrease.

Is This Merely Biased Polling?

I asked Kaiser why they included these types of “malleability” questions regarding single-payer but not pre-existing conditions. Ashley Kirzinger, a Kaiser researcher who worked on the poll, said they were gauging general public responses on the issue. She said Kaiser might study the trade-offs associated with the pre-existing condition policy in the future, but didn’t definitively commit to doing so.

That said, a conservative might highlight Kaiser’s liberal ideology as another possible explanation why they might not ask voters whether they would support Obamacare’s pre-existing condition provisions despite costly trade-offs. For instance, the organization has consistently used the phrase “Affordable Care Act” rather than “Obamacare” to describe the 2010 health care law—and as even a supporter of the law like Jimmy Kimmel found out, the two terms prompt sharply different reactions.

Here’s the Bottom Line

Conservatives have a compelling case to make on the harm that Obamacare’s pre-existing condition provisions have wrought—if they have the courage to make it. Thankfully, politicians like Sen. Ted Cruz (R-TX) are doing so, and in the unlikeliest of places: a pickup charity basketball game with Jimmy Kimmel.

Conservatives do have other alternatives to Obamacare’s premium-raising requirements that address individuals with pre-existing conditions. For instance, they could revive and reform high-risk pools in place prior to the law. The Heritage Foundation last year proposed regulatory changes to provide continuity of coverage for people with pre-existing conditions. While the Heritage proposal has its flaws, it would likely work better than Obamacare currently does, thereby lowering premiums in the process.

But to advance these other proposals, conservatives must first make the argument that the status quo on pre-existing conditions amounts to a tax increase on millions of Americans who buy individual health insurance. They have the facts on their side—and Kaiser’s incomplete survey notwithstanding, those facts may bring the American people to their side as well.

This post was originally published at The Federalist.

Rescissions Package Shows Washington’s Spending Problem

Talk about swampy: Republicans control the House, the Senate, and the White House, yet even token attempts to reduce spending cannot succeed.

Last week’s failure of a $15 billion package of rescissions (i.e., spending cuts) that the administration had proposed partly reflected the narrow Republican majority in the Senate. With Republicans’ one-vote margin, objections by Sens. Susan Collins (R-ME) and Richard Burr (R-NC) sank the measure in a 48-50 vote.

Health Care: Dems Demagogue, GOP Caves

Nearly half of the proposed savings, approximately $7 billion, in the rescissions package came from the State Children’s Health Insurance Program (SCHIP)—roughly $5.1 billion in unobligated balances, and $1.9 billion in child enrollment contingency funds for the current fiscal year that ends in September.

Liberals claimed the rescissions package would “gut” the contingency fund and “put the health of children at risk.” However, the Congressional Budget Office (CBO) last month noted that, with respect to the $5.1 billion in unobligated SCHIP balances, “authority to distribute the funds to states…expired in 2017.”

CBO also “projected that the rescission from the child enrollment contingency fund would not affect payments to states.” In sum, the budget office concluded that the $7 billion rescission “would not affect…the number of individuals with insurance coverage.”

Had Republicans stuck to their prior principles on SCHIP, much of the rescissions package would have proved unnecessary. Congress never would have authorized the funds in the first place, eliminating the need to rescind that spending. They did not. Collins voted against the package because of the SCHIP funds, while Sen. Lisa Murkowski (R-AK) voted to support it, but very begrudgingly.

Parochial Interests Clip the Other Vote

The other Senate Republican no vote came from Burr, a surprise opponent of the measure. Burr said he opposed the package’s $16 million reduction in funding for the Land and Water Conservation Fund.

Burr’s staff told the Washington Post they had not received assurances that Burr could receive a vote on an amendment striking the land and water reduction from the package, leading the senator to oppose the procedural motion to bring the package to the floor.

On the other hand, killing a $15 billion spending reduction package over literally 0.1 percent of its contents seems more than slightly absurd. With the federal debt at $21 trillion and rising, if Congress will not act on this package—buckets of unspent money lying around at agencies, like spare change under the proverbial couch cushions—when will it discover fiscal discipline?

All Dessert, No Spinach

The defeat of this rescissions package means another may not follow in short order. The administration wanted to propose reductions in spending from March’s omnibus legislation. But appropriators like Senate Majority Leader Mitch McConnell (R-KY) said that one party clawing back money included in a bipartisan budget deal might impede Congress’ ability to pass budget-busting legislation in the future. (Quelle horreur!)

The administration relented in the short-term, hoping to start a virtuous cycle of fiscal responsibility and set spending-reducing precedent they could build upon. Unfortunately, however, the administration failed to recognize the magnitude of this Congress’ bipartisan addiction to federal spending.

Sooner or later, Congress will end up passing spending reductions of a much larger scale than last week’s rescissions package. That they failed to start that task when they had an easy opportunity—the lowest of the low-hanging fruit—will make the spending reductions Congress ultimately enacts that much larger, and more painful.

This post was originally published at The Federalist.

Summary of Health Care “Consensus” Group Plan

Tuesday, a group of analysts including those at the Heritage Foundation released their outline for a way to pass health-care-related legislation in Congress. Readers can find the actual health plan here; a summary and analysis follow below.

What Does the Health Plan Include?

The plan includes parameters for a state-based block grant that would combine funds from Obamacare’s insurance subsidies and its Medicaid expansion into one pot of money. The plan would funnel the block grant funds through the State Children’s Health Insurance Program (SCHIP), using that program’s pro-life protections. In general, states using the block grant would:

  • Spend at least half of the funds subsidizing private health coverage;
  • Spend at least half of the funds subsidizing low-income individuals (which can overlap with the first pot of funds);
  • Spend an unspecified percentage of their funds subsidizing high-risk patients with high health costs;
  • Allow anyone who qualifies for SCHIP or Medicaid to take the value of their benefits and use those funds to subsidize private coverage; and
  • Not face federal requirements regarding 1) essential health benefits; 2) the single risk pool; 3) medical loss ratios; and 4) the 3:1 age ratio (i.e., insurers can charge older customers only three times as much as younger customers).

Is That It?

Pretty much. For instance, the plan remains silent on whether to support an Obamacare “stability” (read: bailout) bill intended to 1) keep insurance markets intact during the transition to the block grant, and 2) attract the votes of moderate Republicans like Alaska Sen. Lisa Murkowski and Maine Sen. Susan Collins.

As recently as three weeks ago, former Sen. Rick Santorum was telling groups that the proposal would include the Collins “stability” language. However, as I previously noted, doing so would likely lead to taxpayer funding of abortion coverage, because there are few if any ways to attach pro-life protections to Obamacare’s cost-sharing reduction payments to insurers under the special budget reconciliation procedures the Senate would use to consider “repeal-and-replace” legislation.

What Parts of Obamacare Would the Plan Retain?

In short, most of them.

Taxes and Medicare Reductions: By retaining all of Obamacare’s spending, the plan would retain all of Obamacare’s tax increases—either that, or it would increase the deficit. Likewise, the plan says nothing about undoing Obamacare’s Medicare reductions. By retaining Obamacare’s spending levels, the plan would maintain the gimmick of double-counting, whereby the law’s payment reductions are used both to “save Medicare” and fund Obamacare.

Insurance Regulations: The Congressional Research Service lists 22 separate new federal requirements imposed on health insurance plans under Obamacare. The plan would retain at least 14 of them:

  1. Guaranteed issue of coverage—Section 2702 of the Public Health Service Act;
  2. Non-discrimination based on health status—Section 2705 of the Public Health Service Act;
  3. Extension of dependent coverage—Section 2714 of the Public Health Service Act;
  4. Prohibition of discrimination based on salary—Section 2716 of the Public Health Service Act (only applies to employer plans);
  5. Waiting period limitation—Section 2708 of the Public Health Service Act (only applies to employer plans);
  6. Guaranteed renewability—Section 2703 of the Public Health Service Act;
  7. Prohibition on rescissions—Section 2712 of the Public Health Service Act;
  8. Rate review—Section 2794 of the Public Health Service Act;
  9. Coverage of preventive health services without cost sharing—Section 2713 of the Public Health Service Act;
  10. Coverage of pre-existing health conditions—Section 2703 of the Public Health Service Act;
  11. Summary of benefits and coverage—Section 2715 of the Public Health Service Act;
  12. Appeals process—Section 2719 of the Public Health Service Act;
  13. Patient protections—Section 2719A of the Public Health Service Act; and
  14. Non-discrimination regarding clinical trial participation—Section 2709 of the Public Health Service Act.

Are Parts of the Health Plan Unclear?

Yes. For instance, the plan says that “Obamacare requirements on essential health benefits” would not apply in states receiving block grant funds. However, Section 1302 of Obamacare—which codified the essential health benefits requirement—also included two other requirements, one capping annual cost-sharing (Section 1302(c)) and another imposing minimum actuarial value requirements (Section 1302(d)).

Additionally, the plan on two occasions says that “insurers could offer discounts to people who are continuously covered.” House Republicans offered a similar proposal in their American Health Care Act last year, one that imposed penalties on individuals failing to maintain continuous coverage.

However, the plan includes no specific proposal on how insurers could go about offering such discounts, as the plan states that the 3:1 age rating requirement—and presumably only that requirement—would not apply for states receiving block grant funds. It is unclear whether or how insurers would have the flexibility under the plan to offer discounts for continuous coverage if all of Obamacare’s restrictions on premium rating, save that for age, remain.

This post was originally published at The Federalist.

Are the Heritage Foundation’s Politics Betraying Its Policy?

When Ronald Reagan used the axiom “Trust but verify,” he meant conservatives should closely monitor organizations and individuals to ensure that their deeds comport with their words. This axiom should apply to a health-care plan that a group the Heritage Foundation leads will unveil this week. While the group’s website claims its plan would “restore a properly functioning market in the health care sector to lower costs,” Heritage’s own policy analysis suggests otherwise.

Specifically, the Heritage plan would in no way alter what Heritage research describes as the biggest drivers of Obamacare’s “seismic effects on insurance markets.” Nor does the Graham-Cassidy health care bill, the legislative basis for the new effort. In fact, a recent version of the bill further undermines the purported “flexibility” that Graham-Cassidy promises to states, making it even less consistent with the federal principles Heritage invokes in lauding the measure.

Pre-Existing Condition Rules Drive Premium Increases

The largest effect on premiums consists of a cluster of [Obamacare] insurance access requirements—specifically the guaranteed issue requirement and the prohibitions on medical underwriting and applying coverage exclusions for pre-existing medical conditions under any circumstances. This cluster of regulations collectively accounts for the largest share of premium increases.

The paper discusses at length how these provisions “appear to have had the greatest effect on premiums,” raising rates for the young and healthy to subsidize the sick. While Obamacare supporters hoped the individual mandate would compel enough healthy individuals to offset those costs, high numbers of people chose to pay the mandate tax or received exemptions from the tax.

“The net result was a constellation of rules that repelled relatively healthy people and attracted those who could reasonably expect their medical bills to exceed their premiums—which Obamacare’s individual mandate simply failed to counteract,” Heritage’s report says.

Rhetoric versus Reality on Graham-Cassidy

After analyzing how the pre-existing conditions provisions proved the prime driver of premium increases, the March Heritage paper claims Graham-Cassidy provides the solution, calling it “a conceptual framework for empowering states to repair or ameliorate much of the market dislocation resulting from Obamacare.”

Leaving all those regulatory requirements in place might sound good, but—just as the March Heritage paper noted—it causes major policy problems:

Insurance companies are required to sell ‘just-in-time’ policies even if people wait until they are sick to buy coverage. That’s just like the Obama plan. There is growing evidence that many are gaming the system by purchasing health insurance when they need surgery or other expensive medical care, then dropping it a few months later.

Those words were written in 2010 to describe the effects of Massachusetts’ health care law, but they apply just as equally to the Heritage plan, and the Graham-Cassidy bill, in 2018. Surprisingly, then, they came from another member of the group that is releasing the plan this week.

Despite these organizations’ own prior statements opposing these costly insurance requirements, the plan released by Heritage and others would leave them in place at the federal level, hamstringing states’ ability to manage their own insurance markets—and belying the supposed goal of devolving power away from Washington.

The Bill Is Getting Worse

Unfortunately, however, the revised draft takes major steps that would undermine states’ ability to create multiple risk pools. Language on page 31 would reduce the block grant allotment for states maintaining multiple risk pools, by a percentage not yet specified. Other new provisions on pages 44 and 45 of the revised draft would allow states to create multiple risk pools only if they follow a series of bureaucratic parameters—parameters that a future Democratic administration would likely use to quash any state’s attempt to establish or maintain multiple risk pools.

Not Flexible, Not Federalism

Even as the Graham-Cassidy bill moves further to the left, Heritage seems insistent on chasing it ever leftward. The bill never addressed what Heritage itself called the prime drivers of premium increases. Now a more recent version further erodes the little flexibility that earlier drafts gave to states.

As I wrote more than one year ago, Republicans can choose to leave the status quo intact on Obamacare’s major regulations, or they can choose to keep their promise to voters to repeal the law. But they cannot do both. It comes down to a binary choice that simple. And Heritage has chosen a path that would effectively break the promise of repeal.

This post was originally published at The Federalist.

The Absurdity of the Justice Department’s Obamacare Lawsuit Intervention

Last summer, I wrote about how President Trump had created the worst of all possible outcomes regarding one Obamacare program. In threatening to cancel cost-sharing reduction payments to insurers, but not actually doing so, the administration forced insurers into raising premiums, while not complying with the rule of law by cutting off the payments outright.

Eventually, the administration finally did cut off the payments in October, but for several months, the uncertainty represented a self-inflicted wound. So too a brief filed by the Department of Justice (DOJ) late last week regarding an Obamacare lawsuit several states brought in February, which asked the court to strike down both Obamacare’s individual mandate and the most important of its federally imposed insurance regulations.

It takes a very unique set of circumstances to arrive at this level of opposition. Herewith the policy, legal, and political implications of DOJ’s actions.

Let’s Talk Policy First

Strictly as a policy matter, I agree with the general tenor of the Justice Department’s proposals. Last April, I analyzed Obamacare’s four major federally imposed insurance regulations:

  1. Guaranteed issue—accepting all applicants, regardless of health status;
  2. Community rating—charging all applicants the same premiums, regardless of health status;
  3. Essential health benefits—requiring plans to cover certain types of services; and
  4. Actuarial value—requiring plans to cover a certain percentage of each service.

I concluded that these four regulations represented a binary choice for policymakers: Either Congress should repeal them all, and allow insurers to price individuals’ health risk accordingly, or leave them all in place. Picking and choosing would likely result in unintended consequences.

The Justice Department’s brief asks the federal court to strike down the first two federal regulations, but not the last two. This outcome could have some unintended consequences, as a New York Times analysis notes.

But repealing the guaranteed issue and community rating regulations would remove the prime driver of premium increases under Obamacare. Those two regulations led rates for individual coverage to more than double from 2013 to 2017, necessitating the requirement for individuals to purchase, and employers to offer, health coverage, the subsidies to make coverage more “affordable,” and the tax increases and Medicare reductions used to fund them.

I noted last April that Republicans have a choice: They can either keep the status quo on pre-existing conditions or they can fulfill their promise to repeal Obamacare. They cannot do both. The DOJ brief acknowledges this dilemma, and that the regulations represent the heart of the Obamacare scheme.

Legal Question 1: Constitutionality

Roberts held that, while the federal government did not have the power to compel individuals to purchase health coverage under the Constitution’s Commerce Clause, Congress did have the power to impose a tax penalty on the non-purchase of coverage, and upheld the individual mandate on that basis.

But late last year, Congress set the mandate penalty to zero, with the provision taking effect next January. Both the plaintiff states and DOJ argue that, because the mandate will not generate revenue for the federal government beyond 2019, it can no longer function as a tax, and should be struck down as unconstitutional.

Ironically, if Congress took an unconstitutional act in setting the mandate penalty to zero, few seem to have spent little time arguing as much prior to the tax bill’s enactment last December. I opposed Congress’ action at the time, because I thought Congress needed to repeal more of Obamacare—i.e., the regulations discussed above. But few raised any concerns that setting the mandate penalty to zero represented an unconstitutional act:

  • While one school of thought suggests presidents should not sign unconstitutional legislation, President Trump signed the tax bill into law.
  • Likewise, President Trump did not issue a signing statement about the tax bill, seemingly indicating that the Trump administration had no concerns about the bill, constitutional or otherwise.
  • While in 2009 the Senate took a separate vote on the constitutionality of Obamacare, no one raised such a point of order during the Senate’s debate on the tax bill.
  • I used to work for one of the plaintiffs in the states’ lawsuit, the Texas Public Policy Foundation. TPPF put out no statement challenging the constitutionality of Congress’ move in the tax bill.

Legal Question 2: Severability

As others have noted, a court decision striking down the individual mandate as unconstitutional would by itself have few practical ramifications, given that Congress already set the mandate penalty to zero, beginning in January. The major fight lies in severability—either striking down the entire law, as the states request, or striking down the two major federal insurance regulations, as the Justice Department suggested last week.

The DOJ brief and the states’ original complaint both cite Section 1501(a) of Obamacare in making their claims to strike down more than just the mandate. DOJ cited that section—which called the mandate “essential to creating effective health insurance markets”—13 times in a 21-page brief, while the states cited that section 18 times in a 33-page complaint.

But that claim fails, for several reasons. First, the list of findings in Section 1501(a)(2) of the law discusses the mandate’s “effects on the national economy and interstate commerce.” In other words, this section of findings attempted to defend the individual mandate as a constitutional exercise of Congress’ power under the Commerce Clause—an argument Roberts struck down in the NFIB v. Sebelius ruling six years ago.

Second, the plaintiffs and the Justice Department briefs focus more on what a Congress eight years ago said—i.e., their non-binding findings to defend the individual mandate under the Commerce Clause—than what the current Congress did when it set the mandate penalty to zero, but left the rest of Obamacare intact. The Justice Department tried to retain a fig leaf of consistency by taking the same position regarding severability that the Obama administration did before the Supreme Court in 2012: that if the mandate falls, the guaranteed issue and community rating provisions (and only those provisions) should as well.

However, the Justice Department’s brief all but ignores Congress’s intervention last year. In a letter to Speaker of the House Paul Ryan (R-WI) regarding the lawsuit, Attorney General Jeff Sessions noted that “We presume that Congress legislates with knowledge of the [Supreme] Court’s findings.” A corollary to that maxim should find that the administration takes decisions with knowledge of Congress’ actions.

But rather than observing how this Congress zeroed out the mandate penalty while leaving the rest of Obamacare intact, DOJ claimed that the 2010 findings should control, because Congress did not repeal them. (Due to procedural concerns surrounding budget reconciliation, Senate Republicans arguably could not have repealed them in last year’s tax bill even if they wanted to.)

Third, as the brief by a series of Democratic state attorneys general—who received permission to intervene in the case—makes plain, Republican members of Congress said repeatedly during the tax bill debate last year that they were not changing any other part of the law. For instance, during the Senate Finance Committee markup of the tax bill, the committee’s chairman, Orrin Hatch (R-UT), said the following:

Let us be clear, repealing the [mandate] tax does not take anyone’s health insurance away. No one would lose access to coverage or subsidies that help them pay for coverage unless they chose not to enroll in health coverage once the penalty for doing so is no longer in effect. No one would be kicked off of Medicare. No one would lose insurance they are currently getting from insurance carriers. Nothing—nothing—in the modified mark impacts Obamacare policies like coverage for preexisting conditions or restrictions against lifetime limits on coverage….

The bill does nothing to alter Title 1 of Obamacare, which includes all of the insurance mandates and requirements related to preexisting conditions and essential health benefits.

As noted above, I want Congress to repeal more of Obamacare—all of it, in fact. But what I want to happen and what Congress did are two different things. When Congress explicitly set the mandate penalty to zero but left the rest of the law intact, I should not (and will not) go running to an activist judge trying to get him or her to ignore the will of Congress and strike all of it down regardless. That’s what liberals do.

Too Cute by Half Problem 1: Legal Outcomes

The brief the Democratic attorneys general filed suggested another possible outcome—one that would not please the plaintiffs in the lawsuit. While the attorneys general attempted to defend the mandate’s constitutionality despite the impending loss of the tax penalty, they offered another solution should the court find the revised mandate unconstitutional:

Under long-standing principles of statutory construction, when a legislature purports to amend an existing statute in a way that would render the statute (or part of the statute) unconstitutional, the amendment is void, and the statute continues to operate as it did before the invalid amendment was enacted.

It remains to be seen whether the courts will find this argument credible. But if they do, a lawsuit seeking to strike down all of Obamacare could actually restore part of it, by getting the court to reinstate the tax penalties associated with the mandate.

This scenario could get worse. In 2015, the Senate parliamentarian offered guidance that Congress could set the mandate penalty to zero, but not repeal it outright, as part of a budget reconciliation bill. Republicans used this precedent to zero-out the mandate in last year’s tax bill. But a court ruling stating that Congress cannot constitutionally set the mandate penalty to zero, and must instead repeal it outright, means Senate Republicans would have to muster 60 votes to do so—an outcome meaning the mandate might never get repealed.

In June 2015, the Supreme Court issued a ruling in the case of King v. Burwell. In its opinion, the court ruled that individuals in states that did not establish their own exchanges (and used the federally run healthcare.gov instead) could qualify for health insurance subsidies. By codifying an ambiguity in the Obamacare statute in favor of the subsidies, the court’s ruling prevented the Trump administration from later taking executive action to block those subsidies.

In King v. Burwell, litigating over uncertainty in Obamacare ended up precluding a future administration from taking action to dismantle it. The same thing could happen with this newest lawsuit.

Too Cute by Half Problem 2: Legislative Action

Sooner or later, someone will recognize an easy solution exists that would solve both the problem of constitutionality and severability: Congress passing legislation to repeal the mandate outright, after the tax bill set the penalty to zero. But this scenario could lead to all sorts of inconsistent, yet politically convenient, outcomes:

  • Democrats attacking Republicans over last week’s DOJ brief might oppose repealing a (now-defanged) individual mandate, because it would remove what they view as a powerful political issue heading into November’s midterm elections;
  • Republicans afraid of Democrats’ political attacks might say they repealed a part of Obamacare (i.e., the individual mandate) outright to “protect” the rest of Obamacare (i.e., the federal regulations and other assorted components of the law) from being struck down by an activist judge; and
  • Some on the Right might oppose Congress taking action to repeal “just” the individual mandate, because they want the courts to strike down the entire law—even though such a job rightly lies within Congress’ purview.

As others have noted, these contortionistic, “Through the Looking Glass” scenarios speak volumes about the tortured basis for this lawsuit. The Trump administration should spend less time writing briefs that support legislating from the bench by unelected judges, and more time working with Congress to do its job and repeal the law itself.

This post was originally published at The Federalist.

What’s Going on with Premium Increases under Obamacare?

Multiple articles in recent weeks have outlined the ways Democrats intend to use Obamacare as a wedge issue in November’s midterm elections. While only a few states have released insurer filings—and regulators could make alterations to insurers’ proposals—the preliminary filings to date suggest above-average premium increases have been higher than the underlying trend in medical costs.

Democrats claim that such premium increases come from the Trump administration and Republican Congress’s “sabotage.” But do those charges have merit? On the three primary counts discussed in detail below, the effects of the policy changes varies significantly.

End of Cost-Sharing Reduction Payments

The administration’s decision meant most insurers increased premiums for 2018, to recoup their costs for discounting cost-sharing indirectly (i.e., via premiums) rather than through direct CSR payments. However, as I previously noted, most states devised strategies whereby few if any individuals would suffer harm from those premium increases. Low-income individuals who qualify for premium subsidies would receive larger subsidies to offset their higher costs, and more affluent individuals who do not qualify for subsidies could purchase coverage away from state exchanges, where insurers offer policies unaffected by the loss of CSR payments.

These state-based strategies mean that the “sabotage” charges have little to no merit, for several reasons. First, the premium increases relating to the lack of direct CSR payments already took effect in most states for 2018; this increase represents a one-time change that will not recur in 2019.

Second, more states have announced that, for 2019, they will switch to the “hold harmless” strategy described above, ensuring that few if any individuals will incur higher premiums from these changes. Admittedly, taxpayers will pay more in subsidies, but most consumers should see no direct effects. This “sabotage” argument was disingenuous when Democrats first raised it last year, and it’s even more disingenuous now.

Eliminating the Individual Mandate Penalty

Repealing the mandate will raise premiums for 2019, although questions remain over the magnitude. The Congressional Budget Office (CBO) last month officially reduced its estimate of the mandate’s “strength” in compelling people to purchase coverage by about one-third. However, another recent study suggests that, CBO’s changes notwithstanding, the mandate had a significant impact on getting people to buy insurance—suggesting that many healthy people could drop coverage once the mandate penalty disappears.

To insurers, the mandate repeal represents an unknown factor shaping the market in 2019. In the short term at least, whether or not people will drop coverage in 2019 due to the mandate’s repeal matters less than what insurers—and, just as important, insurance regulators—think people will do in response. If insurers think many people will drop, then premiums could rise significantly; however, if insurers already thought the mandate weak or ineffective, then its repeal by definition would have a more limited impact.

New Coverage Options

The Trump administration’s moves to expand access to association health plans and short-term insurance coverage, while still pending, also represent a factor for insurers to consider. In this case, insurers fear that more affordable coverage that does not meet all of Obamacare’s requirements will prove attractive to young and healthy individuals, raising the average costs of the older and sicker individuals who remain in Obamacare-compliant plans.

If association plans and short-term coverage do not entice many enrollees—or if most of those enrollees had not purchased coverage to begin with—then the market changes will not affect exchange premiums that much. By contrast, if the changes entice millions of individuals to give up exchange coverage for a non-compliant but more affordable plan, then premiums for those remaining on the exchanges could rise significantly.

Estimates of the effects of these regulatory changes vary. For instance, the administration’s proposed rule on short-term plans said it would divert enrollment from exchanges into short-term plans by only about 100,000-200,000 individuals. However, CBO and some other estimates suggest higher impacts from the administration’s changes, and a potentially greater impact on premiums (because short-term and association plans would siphon more healthy individuals away from the exchanges).

But the final effect may depend on the specifics of the changes themselves. If the final rule on short-term plans does not allow for automatic renewability of the plans, they may have limited appeal to individuals, thus minimizing the effects on the exchange market.

However, those same proponents seem less interested in advertising the same study’s premium impact. The Urban researchers believe short-term plans will draw roughly 2.6 million individuals away from exchange coverage, raising premiums for those who remain by as much as 18.3 percent.

Why Prop Up Obamacare?

The selective use of data regarding short-term plans illustrates Republicans’ problem: On one hand, they want to create other, non-Obamacare-compliant, options for individuals to purchase more affordable coverage. On the other hand, if those options succeed, they will raise premiums for individuals who remain on the exchanges.

But some might argue that fixating on exchange premiums for 2019 misses the point, because Republicans should focus on developing alternatives to Obamacare. The exchanges will remain, and still offer comprehensive coverage—along with income-based premium subsidies for that—to individuals with costly medical conditions. But rather than trying to bolster the exchanges by using bailouts and “stability” packages to throw more taxpayer money at them, Republicans could emphasize the new alternatives to Obamacare-compliant plans.

Of course, if that stance presents too much difficulty for Republicans, they have another option: They could repeal the root cause of the premium increases—Obamacare’s myriad new federal insurance requirements. Of course, in Washington, following through on pledges made for the last four election cycles seems like a radical concept, but to most Americans, delivering on such a long-standing promise represents simple common sense.

This post was originally published at The Federalist.

24 New Federal Requirements Added to the Graham-Cassidy Bill

Last week, I outlined how a white paper Sen. Bill Cassidy (R-LA) released essentially advocated for Obamacare on steroids. That plan would keep the law’s most expensive (and onerous) federal insurance requirements, while calling for more taxpayer dollars to make that expensive coverage more “affordable.”

Unfortunately, Cassidy also would extend this highly regulatory approach beyond mere white papers and into legislation. A recently disclosed copy of a revised Graham-Cassidy bill—originally developed by Cassidy and Sen. Lindsey Graham (R-SC) last fall—imposes two dozen new requirements on states. These requirements would undermine the bill’s supposed goal of “state flexibility,” and could lead to a regime more onerous and expensive than Obamacare itself.

18 New ‘Adequate and Affordable’ Coverage Rules

Specifically, that coverage must:

  • Include four categories of basic services defined in the State Children’s Health Insurance Program (SCHIP) statute:
    • Inpatient and outpatient hospital services;
    • Physicians’ surgical and medical services;
    • Laboratory and X-ray services, and
    • Well-baby and well-child care, including age-appropriate immunizations;
  • Include three categories of additional services also defined in the SCHIP statute:
    • Coverage of prescription drugs;
    • Vision services; and
    • Hearing services;
  • Include two other categories of services as defined by Obamacare:
    • Mental health and substance use disorder services, including behavioral health treatment; and
    • Rehabilitative and habilitative services and devices;
  • Comply with actuarial value standards set by the SCHIP statute:
    • Cover at least 70 percent of estimated health expenses for the average consumer; and
  • Comply with requirements included in eight separate sections of the Public Health Service Act, as amended by Obamacare:
    • Section 2701—Rating premiums only based on age (with older applicants charged no more than three times younger applicants), family size, geography, and tobacco use;
    • Section 2702—Required acceptance for every individual or employer who applies for coverage (i.e., guaranteed issue);
    • Section 2703—Guaranteed renewability of coverage;
    • Section 2704—Prohibition on pre-existing condition exclusions;
    • Section 2705—Prohibition on discriminating against individuals based on health status;
    • Section 2708—Prohibition on excessive waiting periods;
    • Section 2711—Prohibition on annual or lifetime limits; and
    • Section 2713—Requiring first-dollar coverage of preventive services without cost-sharing (i.e., deductibles and co-payments).

As noted above, “adequate and affordable health insurance coverage” would include many of Obamacare’s insurance requirements, and in at least one way would exceed them. Whereas Section 1302(d) of Obamacare requires selling insurance with an actuarial value—that is, the percentage of medical expenses paid for the average individual—of at least 60 percent, the revised Graham-Cassidy would require “adequate and affordable” coverage with an actuarial value of at least 70 percent.

If asked, Graham and Cassidy might state that these requirements would only apply to a certain subset of the population. After all, the revised bill text indicates that each state “shall ensure access to adequate and affordable health insurance coverage (as defined in clause (ii))”—the clause referring to the 18 separate requirements listed above—“for [high-risk individuals].” The bill lists the brackets in the original, which might indicate that Cassidy’s office intends to apply these 18 separate coverage requirements only to plans that high-risk persons purchase.

Thankfully, the new draft removes the “population adjustment factor” allowing CMS to rewrite the block grant formula unilaterally. But even as it took away CMS’ power to alter the funding formula, new language on page 15 of the revised draft allows CMS to cancel states’ block grant funds for “substantial noncompliance.” That provision, coupled with the revised bill’s lack of definition regarding “affordable” coverage and “high-risk individual” provides a future Democratic administration with two clear ways to hijack the block grant program.

For instance, a new administration could define “high-risk individual” so broadly that it would apply to virtually all Americans, subjecting them to the 18 costly coverage requirements. A new administration could also define “affordable” in such a manner—for instance, premiums may not exceed 5 percent of an individual’s income—that states would have to subsidize insurance with sizable amounts of state funds, in addition to the federal dollars included in the block grant. Any state failing to comply with these edicts could see its entire block grant yanked for “substantial noncompliance” with the bureaucratically imposed guidelines.

It seems paradoxical to assert that a bill can be both too prescriptive, imposing far too many requirements on states that undermine the supposed goal of “state flexibility,” and too vague, giving vast amounts of authority to federal bureaucrats. Yet somehow the section on “adequate and affordable health coverage” manages to do both.

Two New Required Uses of Block-Grant Funds

Supporters of the bill would argue that these supposed “guardrails” will prevent states from subsidizing Medicaid coverage, or creating some other government-run health program. But as I noted last week, Obamacare has its own “guardrails” regarding state waivers, which undermine any attempt to deregulate insurance markets.

By adding these new “guardrails,” Graham-Cassidy would essentially replicate Obamacare, albeit with slightly different policy objectives: “The Cassidy plan would give states the ‘flexibility’ to do what Bill Cassidy wants them to do, and only what Bill Cassidy wants them to do. That isn’t flexibility at all.”

Block Grant Reductions with Multiple Risk Pools

On Page 31, the bill includes new language requiring a reduction in block-grant funds, by a percentage not specified, for states electing to create multiple risk pools. Under current law, Section 1312(c) of Obamacare requires insurers to place all individual insurance market enrollees—whether they purchase coverage through the exchange or not—in a single risk pool.

If a state elects to choose multiple risk pools and uses a “substantial portion” of its block grant to subsidize insurance with an actuarial value of under 50 percent, then the state would see an unspecified reduction in its block grant. This language contains many of the flaws of the other provisions described above: It nowhere defines what comprises a “substantial portion” of the block grant, and penalizes states that may choose to create multiple risk pools and subsidize only catastrophic insurance coverage, thus belying Graham-Cassidy’s promise of “state flexibility.”

3 New Requirements for State Waivers

The revised Graham-Cassidy text moves and alters language regarding state waivers of Obamacare’s federal insurance requirements, and in so doing makes three substantive changes. (The original language started in the middle of page 143 of the bill; the new language begins on the top of page 42 of the revised bill.)

First, and perhaps most disturbingly, the revised bill requires the Department of Health and Human Services to waive Obamacare’s insurance requirements for a state only if “such state establishes an equivalent requirement applicable to such coverage in such state.” Taken literally, this provision could mean that states could “opt-out” of Obamacare’s federal requirements if and only if they enshrine those exact same requirements in state law—rendering any supposed “flexibility” under Graham-Cassidy completely nonexistent.

Graham and Cassidy may not have meant to craft language with such a literal interpretation. They may mean to say, for instance, that a state can waive out of Obamacare’s age-rating requirements (which prohibit insurers from charging older people more than three times what they charge younger people) if they establish a more permissive regime—for instance, five-to-one age rating—on the state level.

But taken literally, that’s not what the current bill text says. That vague language raises serious questions about the authors’ intent, and why they chose such unclear, and arguably sloppy, bill language.

Second, the section imposes two new requirements on states selecting multiple risk pools. As noted above, those states would have to comply with the 18 new requirements regarding “adequate and affordable” health coverage, and states creating multiple risk pools could see their block grant reduced as a result.

In addition, however, states must also guarantee that insurers offering coverage in one risk pool offer coverage in all of them. Moreover, premiums charged “by a health insurance issuer for the same health coverage offered in different risk pools in the state [may] not vary by more than 3 to 1.”

The first requirement echoes the Consumer Freedom Amendment offered by Sen. Ted Cruz (R-TX) last year. That amendment allowed insurers to offer plans that did not comply with Obamacare’s requirements, so long as they continued to offer one Obamacare-compliant plan. The second requirement would effectively limit the extent to which insurers could charge individuals more on the basis of pre-existing conditions or health status.

Two Dozen (More) Reasons for State Concern

Both individually and collectively, these two dozen new requirements inserted into the most recent version of Graham-Cassidy present problems for conservatives. The myriad requirements would sharply limit the bill’s ability to deliver lower premiums to consumers—one major goal of “repeal-and-replace” legislation.

More broadly, though, the revised bill drifts further away from any semblance of conservative objectives. While Graham-Cassidy purports to provide more flexibility to states, the revised bill would instead ensnare them in numerous requirements that would impede any attempt at innovation.

Like the proverbial Lilliputians who attempted to tie down Gulliver, the new bill looks to rob states of their ability to manage their own insurance markets and lower premiums for residents, one federal requirement at a time.

This post was originally published at The Federalist.

Bill Cassidy’s New Health Plan Is Obamacare on Steroids

On Tuesday, Sen. Bill Cassidy (R-LA) released a policy white paper with ideas he claimed would “make health care affordable again.” By and large, however, the plan would do no such thing.

Some of the plan’s ideas—promoting consumer transparency in health care, for instance, promoting primary care, and cracking down on monopolistic practices that impede competition—have merit, although people can quibble with the extent to which Washington can, or should, solve those problems.

Fake Flexibility

Cassidy bases his plan on a state-based block-grant funding model, similar to the legislation he and Sen. Lindsey Graham (R-SC) developed last fall. Cassidy cites various state experimental programs to argue that a block-grant approach would allow more room for innovation.

However, the last sentence of the proposal undermines the rest of the discussion: “Flexibility to states would not jeopardize protections for individuals with pre-existing conditions.” That phrase implies that Cassidy believes, as the Graham-Cassidy bill indicated, that Obamacare’s federal insurance requirements regarding pre-existing conditions should remain in place.

That sentence belies the idea that states would get true flexibility to construct their insurance markets however they like. Instead, the Cassidy plan would represent a variation on Obamacare, whose state waiver program essentially lets them add more requirements and more government to their insurance markets, but not take requirements away. Put another way, the Cassidy plan would give states the “flexibility” to do what Bill Cassidy wants them to do, and only what Bill Cassidy wants them to do. That isn’t flexibility at all.

Costly Requirements Remain in Place

For instance, loosening Obamacare’s essential health benefits while keeping the pre-existing condition requirements will encourage insurers to stop covering treatments like chemotherapy. Because they must continue to accept all sick patients, and charge them the same rates as healthy ones, insurers will try to limit their losses by not covering cancer drugs, thereby discouraging cancer patients from applying for coverage.

The combination of these two policy dilemmas could result in the worst of all possible worlds, from both a political and policy standpoint: A plan that does not reduce premiums appreciably—because it keeps the most costly federal insurance requirements intact—yet still encourages insurers to discriminate against the sick.

Throwing Money at the Problem

Rather than trying to solve the problems Obamacare’s federal insurance requirements have caused, as I previously suggested, Cassidy’s plan goes to great lengths to avoid them. He endorses the health insurance “stability” (read: bailout) measure proposed by Sens. Susan Collins (R-ME) and Lamar Alexander (R-TN) earlier this year. Rather than lowering premiums by removing the federal insurance requirements, that plan would lower premiums—albeit only temporarily—by throwing more taxpayer funds at insurers.

Moreover, the need for more federal funding belies Cassidy’s claim that his plan would “make health care affordable again.” States should not need any more funding to encourage insurance enrollment, particularly if they receive sufficient flexibility from federal requirements to bring down premiums. Cassidy knows that any flexibility will prove illusory. As with a “stability” package, he proposes making coverage more “affordable” by throwing other people’s money at the problem.

Neither Repeal Nor Reform

I wrote last April, well before lawmakers ever contemplated the Graham-Cassidy measure, that “Republicans have a choice: They can either retain the ban on pre-existing condition discrimination—and the regulations and subsidies that go with it—or they can fulfill their promise to repeal Obamacare.” Judging from the ideas in his policy paper, Cassidy has made his choice: He supports Obamacare.

But more of the same—more spending to finance the same costly insurance because of the same costly federal insurance requirements—doesn’t constitute a repeal of Obamacare. It doesn’t even come close. Would that Cassidy, and his colleagues in Congress, actually thought about keeping their word and enacting the repeal they promised.

This post was originally published at The Federalist.