Legislative Bulletin: Summary of “Repeal and Replace” Amendments

Ahead of tomorrow’s expected vote on the American Health Care Act, below please find updates on the amendments offered to the legislation. The original summary of the bill is located here.

The bill will be considered tomorrow in the absence of a Congressional Budget Office score of any of 1) the second-degree managers amendment; 2) the Palmer-Schweikert amendment; 3) the MacArthur-Meadows amendment; and 4) the Upton amendment. Some conservatives may be concerned that both the fiscal and policy implications of these four legislative proposals will not be fully vetted until well after Members vote on the legislation. Some conservatives may also be concerned that changes to the legislation made since the last CBO analysis (released on March 23) could change its deficit impact — which could, if CBO concludes the amended bill increases the deficit, cause the legislation to lose its privilege as a reconciliation matter in the Senate.

UPTON AMENDMENT: Adds an additional $8 billion to the Stability Fund for the period 2018-2023 for the sole purpose of “providing assistance to reduce premiums or other out-of-pocket costs of individuals who are subject to an increase in the monthly premium rate for health insurance coverage” as a result of a state adopting a waiver under the MacArthur/Meadows amendment. Gives the Secretary of Health and Human Services authority to create “an allocation methodology” for such purposes.

Some conservatives may note that the adequacy (or inadequacy) of the funding remains contingent largely upon the number of states that decide to submit relevant waiver requests. Some conservatives may also be concerned by the broad grant of authority given to HHS to develop the allocation with respect to such important details as which states receive will funding (and how much), the amount of the $8 billion disbursed every year over the six-year period, and which types of waiver requests (e.g., age rating changes, other rate changes, and/or essential health benefit changes) will receive precedence for funding.

MACARTHUR/MEADOWS AMENDMENT: Creates a new waiver process for states to opt out of some (but not all) of Obamacare’s insurance regulations. States may choose to opt out of:

  • Age rating requirements, beginning in 2018 (Obamacare requires that insurers may not charge older enrollees more than three times the premium paid by younger enrollees);
  • Essential health benefits, beginning in 2020; and
  • In states that have established some high-risk pool or reinsurance mechanism, the 30 percent penalty in the bill for individuals lacking continuous coverage, and/or Obamacare’s prohibition on rating due to health status (again, for individuals lacking continuous insurance coverage), beginning after the 2018 open enrollment period.

Provides that the waiver will be considered approved within 60 days, provided that the state self-certifies the waiver will accomplish one of several objectives, including lowering health insurance premiums. Allows waivers to last for up to 10 years, subject to renewal. Exempts certain forms of coverage, including health insurance co-ops and multi-state plans created by Obamacare, from the state waiver option.

Also exempts the health coverage of Members of Congress from the waiver requirement. House leadership has claimed that this language was included in the legislation to prevent the bill from losing procedural protection in the Senate (likely for including matter outside the jurisdiction of the Senate Finance and HELP Committees). The House will vote on legislation (H.R. 2192) tomorrow that would if enacted effectively nullify this exemption.

While commending the attempt to remove the regulatory burdens that have driven up insurance premiums, some conservatives may be concerned that the language not only leaves in place a federal regulatory regime, but maintains Obamacare as the default regime unless and until a state applies for a waiver — and thus far no governor or state has expressed an interest in doing so. Some conservatives may also question whether waivers will be revoked by states following electoral changes (i.e., a change in party control), and whether the amendment’s somewhat permissive language gives the Department of Health and Human Services grounds to reject waiver renewal applications — both circumstances that would further limit the waiver program’s reach.

PALMER/SCHWEIKERT AMENDMENT: Adds an additional $15 billion to the Stability Fund for the years 2018 through 2026 for the purpose of creating an invisible risk sharing program. Requires the Centers for Medicare and Medicaid Services to establish, following consultations with stakeholders, parameters for the program, including the eligible individuals, standards for qualification (both voluntary and automatic), and attachment points and reimbursement levels. Provides that the federal government will establish parameters for 2018 within 60 days of enactment, and requires CMS to “establish a process for a state to operate” the program beginning in 2020.

Some conservatives may be concerned that this amendment is too prescriptive to states — providing $15 billion in funding contingent solely on one type of state-based insurance solution — while at the same time giving too much authority to HHS to determine the parameters of that specific solution.

 

MARCH 24 UPDATE:

On Thursday evening, House leadership released the text of a second-degree managers amendment making additional policy changes. That amendment:

  • Delays repeal of the Medicare “high-income” tax until 2023;
  • Amends language in the Patient and State Stability Fund to allow states to dedicate grant funds towards offsetting the expenses of rural populations, and clarify the maternity, mental health, and preventive services allowed to be covered by such grants;
  • Appropriates an additional $15 billion for the Patient and State Stability Fund, to be used only for maternity and mental health services; and
  • Allows states to set essential health benefits for health plans, beginning in 2018.

Earlier on Thursday, the Congressional Budget Office released an updated cost estimate regarding the managers amendment. CBO viewed its coverage and premium estimates as largely unchanged from its original March 13 projections. However, the budget office did state that the managers package would reduce the bill’s estimated savings by $187 billion — increasing spending by $49 billion, and decreasing revenues by $137 billion. Of the increased spending, $41 billion would come from more generous inflation measures for some of the Medicaid per capita caps, and $8 billion would come from other changes. Of the reduced revenues, $90 billion would come from lowering the medical care deduction from 7.5 percent to 5.8 percent of income, while $48 billion would come from accelerating the repeal of Obamacare taxes compared to the base bill. Note that this “updated” CBO score released Thursday afternoon does NOT reflect any of the changes proposed Thursday evening; scores on that amendment will not be available until after Friday’s expected House vote.

Updated ten-year costs for repeal of the Obamacare taxes include:

  • Tax on high-cost health plans (also known as the “Cadillac tax”)—but only through 2026 (lowers revenue by $66 billion);
  • Restrictions on use of Health Savings Accounts and Flexible Spending Arrangements to pay for over-the-counter medications (lowers revenue by $5.7 billion);
  • Increased penalties on non-health care uses of Health Savings Account dollars (lowers revenue by $100 million);
  • Limits on Flexible Spending Arrangement contributions (lowers revenue by $19.6 billion);
  • Medical device tax (lowers revenue by $19.6 billion);
  • Elimination of deduction for employers who receive a subsidy from Medicare for offering retiree prescription drug coverage (lowers revenue by $1.8 billion);
  • Limitation on medical expenses as an itemized deduction (lowers revenue by $125.7 billion)
  • Medicare tax on “high-income” individuals (lowers revenue by $126.8 billion);
  • Tax on pharmaceuticals (lowers revenue by $28.5 billion);
  • Health insurer tax (lowers revenue by $144.7 billion);
  • Tax on tanning services (lowers revenue by $600 million);
  • Limitation on deductibility of salaries to insurance industry executives (lowers revenue by $500 million); and
  • Net investment tax (lowers revenue by $172.2 billion).

MARCH 23 UPDATE:

On March 23, the Congressional Budget Office released an updated cost estimate regarding the managers amendment. CBO viewed its coverage and premium estimates as largely unchanged from its original March 13 projections. However, the budget office did state that the managers package would reduce the bill’s estimated savings by $187 billion — increasing spending by $49 billion, and decreasing revenues by $137 billion. Of the increased spending, $41 billion would come from more generous inflation measures for some of the Medicaid per capita caps, and $8 billion would come from other changes. Of the reduced revenues, $90 billion would come from lowering the medical care deduction from 7.5 percent to 5.8 percent of income, while $48 billion would come from accelerating the repeal of Obamacare taxes compared to the base bill.

Updated ten-year costs for repeal of the Obamacare taxes include:

  • Tax on high-cost health plans (also known as the “Cadillac tax”)—but only through 2026 (lowers revenue by $66 billion);
  • Restrictions on use of Health Savings Accounts and Flexible Spending Arrangements to pay for over-the-counter medications (lowers revenue by $5.7 billion);
  • Increased penalties on non-health care uses of Health Savings Account dollars (lowers revenue by $100 million);
  • Limits on Flexible Spending Arrangement contributions (lowers revenue by $19.6 billion);
  • Medical device tax (lowers revenue by $19.6 billion);
  • Elimination of deduction for employers who receive a subsidy from Medicare for offering retiree prescription drug coverage (lowers revenue by $1.8 billion);
  • Limitation on medical expenses as an itemized deduction (lowers revenue by $125.7 billion)
  • Medicare tax on “high-income” individuals (lowers revenue by $126.8 billion);
  • Tax on pharmaceuticals (lowers revenue by $28.5 billion);
  • Health insurer tax (lowers revenue by $144.7 billion);
  • Tax on tanning services (lowers revenue by $600 million);
  • Limitation on deductibility of salaries to insurance industry executives (lowers revenue by $500 million); and
  • Net investment tax (lowers revenue by $172.2 billion).

 

Original post follows:

On the evening of March 20, House Republicans released two managers amendments to the American Health Care Act—one making policy changes, and the other making “technical” corrections. The latter amendment largely consists of changes made in an attempt to avoid Senate points-of-order fatal to the reconciliation legislation.

In general, the managers amendment proposes additional spending (increasing the inflation measure for the Medicaid per capita caps) and reduced revenues (accelerating repeal of the Obamacare taxes) when compared to the base bill. However, that base bill already would increase the deficit over its first five years, according to the Congressional Budget Office.

Moreover, neither the base bill nor the managers amendment—though ostensibly an Obamacare “repeal” bill—make any attempt to undo what Paul Ryan himself called Obamacare’s “raid” on Medicare, diverting hundreds of billions of dollars from that entitlement to create new entitlements. Given this history of financial gimmickry and double-counting, not to mention our $20 trillion debt, some conservatives may therefore question the fiscal responsibility of the “sweeteners” being included in the managers package.

Summary of both amendments follows:

Policy Changes

Medicaid Expansion:           Ends the enhanced (i.e., 90-95%) federal Medicaid match for all states that have not expanded their Medicaid programs as of March 1, 2017. Any state that has not expanded Medicaid to able-bodied adults after that date could do so—however, that state would only receive the traditional (50-83%) federal match for their expansion population. However, the amendment prohibits any state from expanding to able-bodied adults with incomes over 133% of the federal poverty level (FPL) effective December 31, 2017.

With respect to those states that have expanded, continues the enhanced match through December 31, 2019, with states receiving the enhanced match for all beneficiaries enrolled as of that date as long as those beneficiaries remain continuously enrolled in Medicaid. Some conservatives may be concerned that this change, while helpful, does not eliminate the perverse incentive that current expansion states have to sign up as many beneficiaries as possible over the next nearly three years, to receive the higher federal match rate.

Work Requirements:           Permits (but does not require) states to, beginning October 1, 2017, impose work requirements on “non-disabled, non-elderly, non-pregnant” beneficiaries. States can determine the length of time for such work requirements. Provides a 5 percentage point increase in the federal match for state expenses attributable to activities implementing the work requirements.

States may not impose requirements on pregnant women (through 60 days after birth); children under age 19; the sole parent of a child under age 6, or sole parent or caretaker of a child with disabilities; or a married individual or head of household under age 20 who “maintains satisfactory attendance at secondary school or equivalent,” or participates in vocational education.

Medicaid Per Capita Caps:              Increases the inflation measure for Medicaid per capita caps for elderly, blind, and disabled beneficiaries from CPI-medical to CPI-medical plus one percentage point. The inflation measure for all other enrollees (e.g., children, expansion enrollees, etc.) would remain at CPI-medical.

Medicaid “New York Fix:”               Reduces the federal Medicaid match for states that require their political subdivisions to contribute to the costs of the state Medicaid program. Per various press reports, this provision was inserted at the behest of certain upstate New York congressmen, who take issue with the state’s current policy of requiring some counties to contribute towards the state’s share of Medicaid spending. Some conservatives may be concerned that this provision represents a parochial earmark, and question its inclusion in the bill.

Medicaid Block Grant:        Provides states with the option to select a block grant for their Medicaid program, which shall run over a 10-year period. Block grants would apply to adults and children ONLY; they would not apply with respect to the elderly, blind, and disabled population, or to the Obamacare expansion population (i.e., able-bodied adults).

Requires states to apply for a block grant, listing the ways in which they shall deliver care, which must include 1) hospital care; 2) surgical care and treatment; 3) medical care and treatment; 4) obstetrical and prenatal care and treatment; 5) prescription drugs, medicines, and prosthetics; 6) other medical supplies; and 7) health care for children. The application will be deemed approved within 30 days unless it is incomplete or not actuarially sound.

Bases the first year of the block grant based on a state’s federal Medicaid match rate, its enrollment in the prior year, and per beneficiary spending. Increases the block grant every year with CPI inflation, but does not adjust based on growing (or decreasing) enrollment. Permits states to roll over block grant funds from year to year.

Some conservatives, noting the less generous inflation measure for block grants compared to per capita caps (CPI inflation for the former, CPI-medical inflation for the latter), and the limits on the beneficiary populations covered by the block grant under the amendment, may question whether any states will embrace the block grant proposal as currently constructed.

Implementation Fund:        Creates a $1 billion fund within the Department of Health and Human Services to implement the Medicaid reforms, the Stability Fund, the modifications to Obamacare’s subsidy regime (for 2018 and 2019), and the new subsidy regime (for 2020 and following years). Some conservatives may be concerned that this money represents a “slush fund” created outside the regular appropriations process at the disposal of the executive branch.

Repeal of Obamacare Tax Increases:             Accelerates repeal of Obamacare’s tax increases from January 2018 to January 2017, including:

  • “Cadillac tax” on high-cost health plans—not repealed fully, but will not go into effect until 2026, one year later than in the base bill;
  • Restrictions on use of Health Savings Accounts and Flexible Spending Arrangements to pay for over-the-counter medications;
  • Increased penalties on non-health care uses of Health Savings Account dollars;
  • Limits on Flexible Spending Arrangement contributions;
  • Medical device tax;
  • Elimination of deduction for employers who receive a subsidy from Medicare for offering retiree prescription drug coverage;
  • Limitation on medical expenses as an itemized deduction—this provision actually reduces the limitation below prior law (Obamacare raised the threshold from expenses in excess of 7.5% of adjusted gross income to 10%, whereas the amendment lowers that threshold to 5.8%);
  • Medicare tax on “high-income” individuals;
  • Tax on pharmaceuticals;
  • Health insurer tax;
  • Tax on tanning services;
  • Limitation on deductibility of salaries to insurance industry executives; and
  • Net investment tax.

“Technical” Changes

Retroactive Eligibility:       Strikes Section 114(c), which required Medicaid applicants to provide verification of citizenship or immigration status prior to becoming presumptively eligible for benefits during the application process. The section was likely stricken for procedural reasons to avoid potentially fatal points-of-order, for imposing new programmatic requirements outside the scope of the Finance Committee’s jurisdiction and/or related to Title II of the Social Security Act.

Safety Net Funding:              Makes changes to the new pool of safety net funding for non-expansion states, tying funding to fiscal years instead of calendar years 2018 through 2022.

Medicaid Per Capita Cap:   Makes changes to cap formula, to clarify that all non-Disproportionate Share Hospital (DSH) supplemental payments are accounted for and attributable to beneficiaries for purposes of calculating the per capita cap amounts.

Stability Fund:          Makes technical changes to calculating relative uninsured rates under formula for allocating Patient and State Stability Fund grant amounts.

Continuous Coverage:         Strikes language requiring 30 percent surcharge for lack of continuous coverage in the small group market, leaving the provision to apply to the individual market only. With respect to the small group market, prior law HIPAA continuation coverage provisions would still apply.

Re-Write of Tax Credit:      Re-writes the new tax credit entitlement as part of Section 36B of the Internal Revenue Code—the portion currently being used for Obamacare’s premium subsidies. In effect, the bill replaces the existing premium subsidies (i.e., Obamacare’s refundable tax credits) with the new subsidies (i.e., House Republicans’ refundable tax credits), effective January 1, 2020.

The amendment was likely added for procedural reasons, attempting to “bootstrap” on to the eligibility verification regime already in place under Obamacare. Creating a new verification regime could 1) exceed the Senate Finance Committee’s jurisdiction and 2) require new programmatic authority relating to Title II of the Social Security Act—both of which would create a point-of-order fatal to the entire bill in the Senate.

In addition, with respect to the “firewall”—that is, the individuals who do NOT qualify for the credit based on other forms of health coverage—the amendment utilizes a definition of health insurance coverage present in the Internal Revenue Code. By using a definition of health coverage included within the Senate Finance Committee’s jurisdiction, the amendment attempts to avoid exceeding the Finance Committee’s remit, which would subject the bill to a potentially fatal point of order in the Senate.

However, in so doing, this ostensibly “technical” change restricts veterans’ access to the tax credit. The prior language in the bill as introduced (pages 97-98) allowed veterans eligible for, but not enrolled in, coverage through the Veterans Administration to receive the credit. The revised language states only that individuals “eligible for” other forms of coverage—including Medicaid, Medicare, SCHIP, and Veterans Administration coverage—may not qualify for the credit. Thus, with respect to veterans’ coverage in particular, the managers package is more restrictive than the bill as introduced, as veterans eligible for but not enrolled in VA coverage cannot qualify for credits.

Finally, the amendment removes language allowing leftover credit funds to be deposited into individuals’ health savings accounts—because language in the base bill permitting such a move raised concerns among some conservatives that those taxpayer dollars could be used to fund abortions in enrollees’ HSAs.

What You Need to Know about Invisible High-Risk Pools

Last Thursday afternoon, the House Rules Committee approved an amendment providing an additional $15 billion for “invisible high risk pools.” That surprising development, after several days of frenetic closed-door negotiations and a study on the pools released Friday, may have some in Washington trying to make sense of it all.

If you want the short and dirty, here it is: Thursday’s amendment doesn’t resemble the model cited by pool proponents, undermines principles of federalism, relies on government price controls to achieve much of its premium savings, and requires far more taxpayer funding than the amendment actually provided. But other than that, it’s great!

The Amendment Text Does Not Match Its Maine Model

The legislative text the Rules Committee adopted last week bears little resemblance to the invisible risk pool model the amendment’s proponents have described.

In response to my article last week asking whether the invisible risk pool funding differs from Obamacare’s reinsurance program, supporters cited a blog post highlighting the way such a pool works in Maine. Under Maine’s program, insurers cede their highest risks to the pool prospectively—i.e., when individuals apply for insurance. Insurers also cede to the pool most of those high-risk patients’ premium payments, to help pay for the patients’ health claims.

Conversely, insurers participating in Obamacare’s reinsurance program receive retrospective payments (i.e., after the patients incur high health costs), and keep all of the premium payments those patients make. In theory, then, those two differences do distinguish the Obamacare reinsurance program from the Maine pool.

The [Milliman] study…assumes that insurers would agree up front to surrender most of the premiums paid by high-risk enrollees, in exchange for protection against potentially costly claims down the line… Palmer included those specifics the first time he proposed adding a risk-sharing program to the [American Health Care Act], roughly two weeks ago. But they were stripped out of the final version presented Tuesday, and likely for good reason…Insurers likely wouldn’t be too enthusiastic about having that much skin in the game. Instead, the amendment essentially tells state and federal officials to sort out the details later—and most importantly, after the program is passed into law.

The federal pools may end up looking nothing like the Maine program advocates are citing as the model—because the administration will determine all those critically important details after the fact. Or, to coin a phrase, we have to pass the bill so that you can find out what’s in it.

The Amendment Undermines State Sovereignty

As currently constructed, the pool concept undermines state sovereignty over insurance markets. Paradoxical as it may sound, the amendment adopted last Thursday is both too broad and too narrow. With respect to the invisible high risk pool concept, the legislation doesn’t include enough details to allow policy-makers and insurers to determine how they will function. As noted above, all of those details were essentially punted to the administration to determine.

But the amendment is also too narrow, in that it conditions the $15 billion on participation in the invisible risk pool model. If a state wants to create an actual high risk pool, or use some other concept to stabilize their insurance markets, they’re out of luck—they can’t touch the $15 billion pot of money.

In a post last week, I cited House Speaker Paul Ryan’s February criticism of Obamacare: “They’re subsidies that say, ‘We will pay some people some money if you do what the government makes you do.’” That’s exactly what this amendment does: It conditions some level of funding on states taking some specific action—not the only action, perhaps not even the best action, to stabilize their insurance markets, just the one Washington politically favors, therefore the one Washington will attempt to make all states take.

Ryan was right to criticize the Obamacare insurance subsidy system as “not freedom.” The same criticism applies to the invisible pool funding—it isn’t freedom. It also isn’t federalism—it’s big-government, nanny-state “conservatism.”

The Pools’ Claimed Benefits Derive From Price Controls

Much of the supposed benefits of the pools come as a result of government-imposed price controls. The Milliman study released Friday—and again, conditioned upon parameters not present in the amendment the Rules Committee adopted Thursday—models two possible scenarios.

The first scenario would create a new insurance pool in “repeal-and-replace” legislation, with the invisible pools applying only to the new market (some individuals currently on Obamacare may switch to the new market, but would not have to). The second scenario envisions a single risk pool for insurers, combining existing enrollees and new enrollees under the “replace” plan.

In both cases, Milliman modeled assumptions from the original Palmer amendment (i.e., not the one the Rules Committee adopted last Thursday) that linked payments from the invisible risk pools to 100 percent of Medicare reimbursement rates. The study specifically noted the “favorable spread” created as a result of this requirement: the pool reduces premiums because it pays doctors and hospitals less than insurers would.

Under the first scenario, in which Obamacare enrollees remain in a separate market than the new participants in “replace” legislation, a risk pool reimbursing at Medicare rates would yield total average rate reductions of between 16 and 31 percent. But “if [risk pool] benefits are paid based on regular commercially negotiated fees, the rate reduction becomes 12% to 23%”—about one-third less than with the federally dictated reimbursement levels.

Under the second scenario, in which Obamacare and “replace” enrollees are combined into one marketplace, premiums barely drop when linked to commercial payment rates. Premiums would fall by a modest 4 to 14 percent using Medicare reimbursement levels, and a miniscule 1 to 4 percent using commercial reimbursement levels.

Admittedly, the structure of the risk pool creates an inherent risk of gaming—insurers could try to raise their reimbursement rates to gain more federal funds from the pool. But if federal price controls are the way to lower premiums (and for the record, they aren’t), why not just create a government-run “public option” linked to Medicare reimbursement levels and be done with it?

The Study Says This Doesn’t Provide Enough Money

According to the study, the amendment adopted doesn’t include enough federal funding for invisible risk pools. The Milliman study found that invisible risk pools will require more funding than last Thursday’s amendment provided—and potentially even more funding than the entire Stability Fund. Under both scenarios, the invisible risk pools would require anywhere from $3.3 billion to $17 billion per year in funding, or from $35 billion to nearly $200 billion over a decade.

By contrast, Thursday’s amendment included only $15 billion in funding to last from 2018 through 2026. And the Stability Fund itself includes a total of $130 billion in funding—$100 billion in general funds, $15 billion for maternity and mental health coverage, and the $15 billion specifically for invisible risk pools. If all 50 states participate, the entire Stability Fund may not hold enough money needed to fund invisible risk pools.

Remember too that the Milliman study assumes that 1) insurers will cede most premium payments from risk pool participants to help finance the pool’s operations and 2) the pool will pay claims using Medicare reimbursement rates. If either or both of those two assumptions do not materialize—and insurers and providers will vigorously oppose both—spending for the pools will increase still further, making the Milliman study a generous under-estimate of the program’s ultimate cost.

Let States Take the Reins

All of the above notwithstanding, the invisible high risk pool model could work for some states—emphasis on “could” and “some.” If states want to explore this option, they certainly have the right to do so.

But, as Obamacare itself has demonstrated, Washington does not represent the source and summit of all the accumulated wisdom in health care policy. States are desperate for the opportunity to innovate, and create new policies in the marketplace of ideas—not have more programs foisted upon them by Washington, as the Rules Committee amendment attempts to do. Moving in the direction of the former, and not the latter, would represent a true change of pace. Here’s hoping that Congress finally has the courage to do so.

This post was originally published at The Federalist.

Five Questions Regarding “Repeal and Replace”

At a Thursday morning press conference, Speaker Paul Ryan and House leaders unveiled amendment language providing an additional $15 billion in funding for “invisible high risk pools,” which the House Rules Committee was scheduled to consider Thursday afternoon.

That amendment was released following several days of conversations, but no bill text, surrounding state waivers for some (or all—reports have varied on this front) of Obamacare’s “Big Four” regulations: guaranteed issue, community rating, essential health benefits, and actuarial value. Theoretically, states could use the risk pool funds to subsidize the costs of individuals with pre-existing conditions, should they decide to waive existing Obamacare regulations regarding the same.

1. Do Republicans Believe in Limited Executive Authority?

The text of the amendment regarding risk pool funding states that the administrator of the Centers for Medicare and Medicaid Services (CMS) “shall establish…parameters for the operation of the program consistent with this section.”

That’s essentially all the guidance given to CMS to administer a $15 billion program. Following consultations with stakeholders—the text requires such discussions, but doesn’t necessarily require CMS to listen to stakeholder input—the administration can define eligible individuals, the standards for qualification for the pools (both voluntary or automatic), the percentage of insurance premiums paid into the program, and the attachment points for insurers to receive payments from the program.

This extremely broad language raises several potential concerns. Health and Human Services Secretary Tom Price has previously cited the number of references to “the Secretary shall” or “the Secretary may” in Obamacare as showing his ability to modify, change, or otherwise undermine the law. Republicans who give such a broad grant of authority to the executive would allow a future Democrat administration to return the favor.

The wide executive authority does little to preclude arbitrary decisions by the executive. If the administration wants to “come after” a state or an insurer, this broad grant of power may give the administration the ability to do so, by limiting the ability to claim program funds.

As I have previously written, some conservatives may believe that the answer to Barack Obama’s executive unilateralism is not executive unilateralism from a Republican administration. Such a broad grant of authority to the executive in the risk pool program undermines that principle, and ultimately Congress’ Article I constitutional power.

2. Do Republicans Believe in Federalism?

Section (c)(3) of the amendment text allows states to operate risk pools in their respective states, beginning in 2020. However, the text also states that the parameters under which those state pools operate will be set at the federal level by CMS. Some may find it slightly incongruous that, even as Congress debates allowing states to opt out of some of Obamacare’s regulations, it wants to retain control of this new pot of money at the federal level, albeit while letting states implement the federally defined standards.

3. How Is the New Funding for ‘Invisible High Risk Pools’ Much Different from Obamacare’s Reinsurance Program?

The amendment language echoes Section 1341(b)(2) of Obamacare, which required the administration to establish payments to insurers for Obamacare’s reinsurance program. That existing reinsurance mechanism, like the proposed amendment text, has attachment points (an amount at which reinsurance kicks in) and co-insurance (health insurers will pay a certain percentage of claims above the attachment point, while the program funding will pay a certain percentage).

Congressional leadership previously called the $20 billion in Obamacare reinsurance funding a “bailout” and “corporate welfare.” But the $15 billion in funding under the proposed amendment echoes the Obamacare mechanism—only with more details missing and less oversight. Why do Republicans now support a program suspiciously similar to one they previously opposed?

4. Why Do Conservatives Believe Any States Will Apply For Regulatory Waivers?

The number of states that have repealed Obamacare’s Medicaid expansion thus far is a nice round figure: Zero. Given this experience, it’s worth asking whether any state would actually take Washington up on its offer to provide regulatory relief—particularly because Congress could decide to repeal all the regulations outright, but thus far has chosen not to.

Moreover, if Congress places additional conditions on these waivers, as some lawmakers have discussed, even states that want to apply for them may not qualify. Obamacare already has a waiver process under which states can waive some of the law’s regulations, including the essential health benefits and actuarial value (but not guaranteed issue and community rating).

However, those waiver requirements are so strict that no states have applied for these—health savings accounts and other consumer-directed health-care options likely do not meet the law’s criteria. If the House plan includes similarly strict criteria, the waivers will have little meaning.

5. Will the Administration Encourage States to Apply for Regulatory Waivers?

President Trump has previously stated that he wants to keep Obamacare’s pre-existing conditions provisions. Those statements raise questions about how exactly the administration would implement a program seeking to waive those very protections. Would the administration actively encourage states to apply? If so, why won’t it support repealing those provisions outright, rather than requiring states to come to the federal government to ask permission?

Conversely, if the administration wishes to discourage states from using this waiver program, it has levers to do so. As noted above, the current amendment language gives the administration very broad leeway regarding the $15 billion risk pool program, such that the administration could potentially deny funds to states that move to waive portions of the Obamacare regulations.

The combination of the broad grant of authority to the executive, coupled with the president’s prior comments wanting to keep Obamacare’s pre-existing conditions provision, could lead some conservatives to question whether they are being led into a potential “bait-and-switch” scenario, whereby the regulatory flexibility promised prior to the bill’s passage suddenly disappears upon enactment.

This post was originally published at The Federalist.