If they so choose, the incoming Trump administration and new Congress could begin quickly unwinding the Patient Protection and Affordable Care Act’s individual health insurance market reforms without taking any affirmative action to do so. The reason is the House of Representatives prevailed earlier this year in United States House of Representatives v. Burwell in which the House challenged the outgoing Obama administration’s funding of out of pocket cost sharing subsidies under Section 1402 of the Affordable Care Act. That section provides for supplemental subsidies in addition to advance premium tax credits for households earning between 100 and 250 percent of federal poverty levels. The additional subsidies limit out of pocket costs for households at that income level enrolling in silver level qualified health plans offered on state health benefit exchanges. In House of Representatives, plaintiffs argue funding of the cost sharing subsidies is not a continuing appropriation and thus requires an annual appropriation as part of the federal budget.
In a ruling issued May 12, U.S. District Court Judge Rosemary M. Collyer agreed, finding the supplemental cost sharing subsidies must be annually appropriated, but leaving them in place pending the Obama administration’s appeal. If the Trump administration opts not to move forward with the Obama administration’s appeal of Collyer’s decision, the ruling stands with immediate effect.
The cost sharing subsidies effectively increase the actuarial value of silver plans that cover on average 70 percent of medical care costs up to the annual out of pocket limit to a higher percentage. Without funding for the cost sharing subsidies, health plan issuers in state health benefit exchanges would be forced to take a bath since calculated premiums would not account for the higher actuarial value of silver plans with cost sharing subsidies. Already leery of higher than expected medical costs and concerned over the potential of adverse selection among exchange plans, the loss of federal funding for the cost sharing subsidies would likely send health plan issuers running for the exits and potentially seeking relief from enforcement of Section 1402. To avoid the pandemonium that would roil the exchanges, plans might pressure Congress and the new administration to appropriate stopgap funding to give policymakers time to reassess the options for plan year 2018 as part of an orderly transition to enact the incoming Trump administration’s avowed repeal of some or all of the Affordable Care Act.
Need a speaker or webinar presenter on the Affordable Care Act and the outlook for health care reform? Contact Pilot Healthcare Strategies Principal Fred Pilot by email