CHIR is back from vacation and strapping in for a busy 2020 in the health insurance policy space. We’ll be tracking activity in the U.S. Congress, state legislatures, at HHS and the Department of Labor, and at state departments of insurance around the country. Below are the top ten issues we expect to be watching – and writing about – in the year ahead:
- Can Congress pass legislation to protect people from balance billing? In spite of bipartisan activity in both the House and Senate last year, the sponsors of legislation to end the scourge of surprise out-of-network balance billing couldn’t get their bills over the finish line, largely thanks to an intense – and expensive – lobbying campaign by industry. We’ll be looking to see if House and Senate leaders can come to agreement on the best way to settle payment disputes between doctors and insurers. It will have to happen early in the year if it’s going to happen at all. We’ll also be watching recommendations due from a U.S. Department of Transportation Advisory Committee on out-of-network air ambulance billing, as well as continued activity on these issues in state legislatures.
- Will the Supreme Court grant cert – and expedite consideration of – the Texas v. US litigation? On January 3, a coalition of states led by California and the U.S. House of Representatives asked the Supreme Court to grant cert in litigation to have the ACA declared unconstitutional. Although it is relatively late in the 2019-2020 term, California and the House are asking the justices to consider the case this year, noting that the continued uncertainty over the law’s future is damaging to health care markets, patients, and providers.
- Will Georgia’s 1332 waiver application be approved, and will other states follow? The state of Georgia has submitted an application to waive several sections of the ACA. If approved, Georgia’s plan would eliminate the health insurance exchange and fundamentally alter the way Georgians access coverage, potentially increasing their out-of-pocket costs and ending the guarantee of income-based premium subsidies. States like Missouri and Idaho are also considering pursuing 1332 waivers, and others could follow.
- Will there be any more Trump administration surprises for the Affordable Care Act (ACA)? The annual rule (the “Notice of Benefit & Payment Parameters”) governing the ACA exchanges and market rules is due any day now. Congress has barred the Trump administration from banning silver loading and ending auto re-enrollment in 2021, two actions they threatened to take in the last rule. But there are other areas in which this administration could continue to make operation of the exchanges more difficult or to relax the law’s pre-existing condition protections.
- Will the California Attorney General’s settlement with the Sutter Health System have a broader impact? The Sutter Health System agreed to pay $575 million in anti-trust lawsuits filed by the California attorney general and a coalition of employers and unions. It was also forced to agree to discontinue certain anti-competitive activities in its contracting with insurers. As evidence grows that the increasing numbers of highly consolidated provider systems are exercising their market clout to drive up prices and demand anti-competitive clauses in their contracts, we’ll be looking to see whether the Sutter settlement dampens providers’ behavior, or possibly inspires other AGs to more aggressively pursue anti-trust actions in their own states.
- Will more states take action to protect consumers from junk health plans and to stabilize their health insurance markets? The Trump administration has encouraged the growth of short-term plans as a substitute for health insurance coverage, and the market has responded not only with a proliferation of short-term plans but also fixed indemnity, bundled excepted benefit products, health care sharing ministry plans, and outright fraudulent promises of insurance. Many of these products are aggressively – and sometimes deceptively – marketed to consumers with attractively low premiums. But they don’t cover pre-existing conditions, leave patients exposed to surprise balance billing, and often rescind coverage for people diagnosed with serious health issues. A few states have taken action to more aggressively regulate these products; others have enacted reinsurance programs to keep premiums more stable for people enrolled in ACA-compliant coverage. As concerns over consumer protection mount, more states may follow their lead.
- Will more states address continued challenges for patients’ access to mental health and substance use services? In the wake of high profile stories highlighting that insurance companies are failing to comply with the federal Mental Health Parity and Addiction Equity Act (MHPAEA), leaving patients without access to the benefits promised them. As a result, more states appear interested in stepping up their oversight and enforcement of the law.
- Will state public option or Medicaid buy-in bills get more traction? Several states considered legislation in 2019 to enact a state public option or Medicaid buy-in program to expand access to coverage and create a more affordable insurance option for their residents. Only Washington, however, ultimately enacted a program, slated to go into effect in 2021. Colorado’s legislature will be taking a look at recommendations produced by an inter-agency committee, but it is as yet unclear whether other states will follow these states’ lead.
- Will a federal appeals court uphold the ban on new Association Health Plans (AHPs)? In November 2019, a 3-judge panel of the D.C. Circuit heard arguments in a case over whether the Trump administration overreached in its rulemaking to expand AHPs. A District Court judge invalidated key provisions of that rule, effectively barring the new AHPs from marketing to individuals and small businesses. Many observers thought the judges’ questioning was sympathetic to the government’s position; a decision in the case is expected this year. As we’ve noted previously in this space, the expansion of these AHPs is likely to increase fraud and insolvencies and increase premiums for individuals and small businesses in the traditionally regulated market.
- Will more states choose to run their own exchange/marketplace? Nevada just completed its first enrollment season as a state-based marketplace (SBM). As expected, they lost some enrollment, but by most accounts the transition went smoothly. New Jersey, Pennsylvania, Maine and New Mexico are also slated to move off of the Healthcare.gov platform. Other states may follow in order to take advantage of the increased flexibility – and potential cost-savings – associated with running their own SBM.
When it comes to health insurance policy, it’s best to expect the unexpected. And the above is far from an exhaustive list. But these 10 issues will be keeping all of us at CHIR busy. Stay tuned to CHIRblog for regular updates and analyses on these topics as well as any insurance policy surprises in the year to come.