Tag Archive: market failure

Too early to declare failure of individual health insurance market statewide risk pooling

One of the primary reforms of the individual health insurance market under the Patient Protection and Affordable Care Act was to create a single risk pool for entire states for individual health plans effective 2014 and later. The purpose was to rescue the individual market from a death spiral crisis of adverse selection that threatened its existence. To keep their individual plans solvent pre-2014, plan issuers resorted to playing a game of whack a mole with their plans. As losses mounted in existing plans, they would shut them down and place them into runoff mode by closing them off to new enrollees. Then they set up new plans containing new enrollees stringently screened via medical underwriting in an attempt to hold down claims costs.

The result was widespread market failure. Many consumers in the individual health insurance market couldn’t purchase coverage because they couldn’t meet the increasingly strict medical underwriting criteria. Those already in existing plans faced steep premium rate increases making coverage unaffordable.

There are widely differing views on whether the Affordable Care Act’s single statewide risk pooling mechanism is achieving adequate spread of risk to remedy the adverse selection that plagued the market pre-2014. Media coverage is sloppy. Accounts such as this one conflate the statewide risk pool with the health benefit exchange marketplace. They are not one and the same. Individual plans are sold both on and off the exchanges. There is no separate risk pool for those enrolling in the individual market through exchanges and another for those who do not.

Many media reports frequently report individual market enrollees are “sicker than expected.” Higher medical utilization as the 2014 reforms kicked in was in fact expected. The Affordable Care Act contained premium stabilization mechanisms that took into account the possibility of high utilization due to pent up demand from those who were previously without coverage either voluntarily or because they fell short of medical underwriting standards or couldn’t afford the premium increases as the market imploded.

A problematic issue with current mainstream media coverage is the tendency to jump to the conclusion that high anticipated medical utilization in the early years of the individual market reforms are indicative of its long term viability. As the standard investment exculpatory disclaimer goes, past performance doesn’t guarantee future results, good or poor. Ditto short term volatility.

Respected health care industry blogger Timothy Jost offers a sharply contrasting perspective to bearish sentiment that the statewide risk pooling mechanism is a failure. He cites a report issued this week by the Centers for Medicare and Medicaid Service indicating claims costs were flat year over year from 2014 to 2015 as evidence the statewide risk pools are functional. Higher premiums for 2017, he writes, are due to health plan issuers adjusting rates to comport with actual experience in 2014 and 2015 plan years instead of the educated guessing they employed for 2014, the first year of the major individual market reforms. Also being factored in is the end of the reinsurance component of the Affordable Care Act’s premium stabilization mechanisms starting in 2017.


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 fpilot@pilothealthstrategies.com or call 530-295-1473. 

Contradictory exchange language in Affordable Care Act causes latest uncertainty over law

Today’s 2-1 ruling by the District Of Columbia Circuit U.S Court of Appeals in Halbig, et al v. Burwell holding that the Internal Revenue Service incorrectly interpreted Patient Protection and Affordable Care Act provisions governing advance tax credits for individual health plans purchased though state health benefit exchanges — regardless of whether a state has opted to operate its own exchange or defaulted to having the federal government do so — stems from two contradictory provisions in the law.

Section 1311(b)(1) of the law requires all states to establish an exchange, stating that “Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘‘Exchange’’) for the State…” (Emphasis added)

When the word “shall” appears in a statute, it’s a mandate or obligatory requirement. It’s not an option or a suggestion.

However, the Court of Appeal also reviewed another section of the Affordable Care Act at Part 3 that gives the states flexibility in implementing the exchange mandate. This is where the trouble lies. Section 1321(b) states:

 (b) STATE ACTION.—Each State that elects, at such time and in such manner as the Secretary may prescribe, to apply the requirements described in subsection (a) shall, not later than January 1, 2014, adopt and have in effect—

(1) the Federal standards established under subsection (a);
(2) a State law or regulation that the Secretary determines implements the standards within the State. (Emphasis added)

Among the federal standards established under subsection (a) is the establishment and operation of exchanges.

Note the use of the word “elects.” Elect means to choose or opt to take (or not take) an action. It is not a requirement unlike the clear “shall” of a mandate. That implies that despite the clear mandate of Section 1311(b)(1), a state could theoretically opt not to establish an exchange under Section 1321(b).

The Court of Appeal apparently picked up on this distinction in its ruling:

The crux of this case is whether an Exchange established by the federal government is an exchange established by the State under section 1311 of the [ACA].” We therefore begin with the provisions authorizing states and the federal government to establish Exchanges. Section 1311 provides that states “shall” establish Exchanges. 42 U.S.C. § 18031(b)(1). But, as the parties agree, despite its seemingly mandatory language, section 1311 more cajoles than commands. A state is not literally required to establish an Exchange; the ACA merely encourages it to do so. And if a state elects not to (or is unable to), such that it “will not have any required Exchange operational by January 1, 2014,” section 1321 directs the federal government, through the Secretary of Health and Human Services, to “establish and operate such Exchange within the State.” Id. § 18041(c)(1).

This is likely to be a critical analysis determining the fate of the subsidies in the three dozen states that have elected not to operate their own exchanges as the case moves forward to a potential en banc review by the District Of Columbia Circuit U.S Court of Appeals. The matter could end up before the U.S. Supreme Court after another circuit of the Court of Appeals panel today unanimously upheld the IRS’s interpretation of the advance tax credit subsidies as applying to all states, regardless of whether they elected to establish their own exchanges. That ruling was in King et al v. Burwell. The conflicting rulings leave a cloud of uncertainty hanging over the federally operated exchanges that is unlikely to be resolved in the less than four months remaining to plan year 2015 enrollment that opens November 15.

The potential for the Supreme Court to intervene increases in light of this analysis by the law firm of Epstein Becker Green noting similar cases pending before other federal appellate courts that could leave the issue unresolved:

The Obama administration has already indicated it will seek en banc review of the Halbig decision by the entire D.C. Circuit. If the full D.C. Circuit reverses the Halbig panel decision, the existing “circuit split” would be resolved, potentially making Supreme Court review less likely. It should be noted that there are similar cases pending in district courts in the 10th and 7th Circuits, that if decided in favor of the challengers could create a circuit split even if the full D.C. Circuit reverses Halbig.

If issue comes before the Supreme Court and it upholds Halbig, it would throw the individual health insurance market in the majority of states with federally-operated exchanges back into market failure since without the advance tax credit subsidies that are propping it up, low and moderate income earners would once again be priced out of the market, especially those in the highest age rating bands. It could also severely erode the Affordable Care Act’s shared responsibility provisions by exempting individuals from the coverage mandate based on unaffordable premiums and mooting fines levied on large employers that don’t offer minimum affordable coverage and an employee obtains subsidized individual coverage in a state health benefit exchange since the subsidies would no longer be available in the federally-operated exchanges.


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 fpilot@pilothealthstrategies.com or call 530-295-1473. 

Obama administration’s messaging on ACA’s individual health market reforms lacking

The Obama administration is suffering a political pillorying this week on the imminent rollout of new market rules governing the individual health insurance market and the government-created health benefit exchange marketplace that began selling the plans October 1.

In large part, the criticism stems from weak messaging to communicate the reforms and why they are needed. There should be more emphasis on conveying these reforms affect the individual market where about five percent of Americans purchase their health coverage, clearly distinguishing these health plans from those purchased by employers that cover the large majority of Americans. As individual health plan issuers revamp and discontinue old plans to comply with the new market standards, the administration now finds itself having to defend its claims that most Americans could keep their current coverage when the individual market reforms take effect January 1, 2014. Viewed in the context of employer group coverage, that is generally accurate. But not necessarily so when it comes to individual coverage, an entirely different insurance product.

Perhaps more importantly, the administration and members of Congress who supported the 2010 enactment of the Patient Protection and Affordable Care Act need to more clearly explain why the law’s substantial government intervention in the individual market was needed in the first place. Administration officials have described the market as out of control from a regulatory standpoint, terming it like the “wild west.” But more fundamentally, the ACA aims to rescue this market because it was falling into oblivion. Individual plan issuers and those who buy this coverage were finding it increasingly difficult to get together in the marketplace on terms and pricing.

That market failure occurred because the market fell into a downward spiral where health plans became overly risk averse and excluded too many potential customers, restricting the flow of membership fees and premiums to pay claims. Plan issuers also violated a fundamental principle of insurance by splitting their customer base into small pools and were consequently unable to share the cost of claims across a larger group of customers. Finally, premiums for some individuals and families began to equal the cost of a mortgage payment and grew unaffordable. No market can function if potential customers cannot afford to buy the product or service being offered.

Whether the ACA can restore the individual market to healthy functioning remains to be seen, particularly given continued upward pressure on premiums from rising medical costs. The law’s market interventions could prove ineffective if too few young adults opt to buy coverage. Also if too many older people not yet eligible for Medicare who earn too much to qualify for tax credit subsidies for plans sold in the state health benefit exchange marketplace find premiums unaffordable and don’t buy coverage or request affordability exemptions from the individual mandate.


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 fpilot@pilothealthstrategies.com or call 530-295-1473. 

Health benefit exchanges: A market intervention mechanism aimed at preserving individual, small group health coverage

State health benefit exchanges mandated by the federal Patient Protection and Affordable Care Act of 2010 have been commonly described as online marketplaces where buying a health insurance policy or managed care plan can be done as easily as booking a flight or vacation.  Ease of purchase, however, is not the driving policy rationale behind the exchanges.  They came about in response to market failure in the individual and small group market segments, particularly in the former.  In insurance terms, market failure means the dreaded death spiral of adverse selection.

Insurance fundamentally is about spreading costs across a group of insureds, known as the insurance principle.  The principle is based on the law of large numbers.  If too few people purchase an insurance or health plan, the law of large numbers is violated and the insurance principle breaks down.  For those insureds left in the group, their share of the group’s costs – paid as premiums or membership dues – must be sharply increased.  The pool shrinks and only those most likely to use medical services remain since they need coverage, putting further upward pressure on premiums.

There is a limit what any insured can afford to pay.  Eventually market failure results and the insurance or managed care plan becomes economically unviable.  As plans close, the fewer remaining health plans pass along relentlessly rising medical care costs and the unvirtious cycle proliferates until the entire marketplace is at risk.  That was — and still is — the situation the individual and small group health insurance markets leading up to the enactment of the ACA in 2010.  Ultimately, health benefit exchanges are an attempt to preserve these markets by concentrating plan issuers and purchasers into a government-sponsored marketplace with incentives and disincentives for individuals to participate in the form of tax credit subsidies and tax penalties, respectively.

Whether the exchanges are able do so won’t be known for several years after the exchanges begin pre-enrolling individuals and small businesses for 2014 coverage starting in October 2013.  What is certain is the exchanges as insurance marketplaces – like the failed market they seek to remedy — are also subject to the insurance principle. They must attract sufficiently large numbers of individuals and small businesses if they are to successfully achieve the market aggregation solution that led to their inclusion in the ACA.


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 fpilot@pilothealthstrategies.com or call 530-295-1473. 

Market failure in individual, small business health insurance market segments forces insurer to act

Aetna CEO Mark Bertolini reveals to Sarah Kliff of The Washington Post’s Wonkblog that a strategic review Aetna undertook in 2005 showed the individual health insurance market segment failing and the small group segment in decline.  Market failure can be a strong motivator to act — and will remain a mortal threat notwithstanding how the U.S. Supreme Court opines this week on the constitutionality of the Patient Protection and Affordable Care Act.

Some excerpts from Kliff’s post:

 “We saw an individual market in inexorable decline and, on the small group side, fewer were offering benefits and costs were rising. We knew we had to change something,” Bertolini said.

Aetna has a strong business reason to create a cheaper insurance product: Namely, getting more people to buy it. That motivation stays in place regardless of what happens with the Supreme Court this month.

“We’re really working right now on the underlying cost of health care,” he says. “These investments we’re making are about finding a different way to make models work. We’re committed to fixing that, and feel like we need to fix that.”


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 fpilot@pilothealthstrategies.com or call 530-295-1473. 

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