Marketplace Open Enrollment Begins

Today, November 1, the marketplaces opened for the 2017 open enrollment period, the fourth such period since the law was enacted. In many parts of the country, premiums are up dramatically from 2016 while insurer participation in the marketplaces is down. But in every part of the country consumers still have a choice of a number of plans, more than many Americans who have insurance through their employment and who only have one plan available. Marketplace premiums are still lower in most of the country that the cost of employer-sponsored coverage. And most people who purchase their coverage through the marketplaces are eligible for financial assistance that can lower both the amount they have to pay for coverage and the amount they have to pay for care once they get coverage.

Marketplace Innovation

On October 31, 2016, the Centers for Medicare and Medicaid Services released its second Innovation in the Marketplace newsletter. The newsletter recapped lessons learned from CMS' second innovation forum, such as the need for:

• monthly consumer engagement by health insurers to ensure continued enrollment effectuation, including approaches that make it easier for consumers to pay for their coverage;
• health insurers understanding their marketplace population and offering tools to help consumers make decisions; and,
• tailored approaches to provider networks and contracting.

The newsletter focuses on Priority Health of Michigan, which offers its consumers a Cost Estimator to calculate the out-of-pocket costs for hundreds of procedures, and a PriorityRewards program that offers cash rewards of from $50 to $200 to consumers who shop using the Cost Estimator and receive services from providers for a price below the fair market price.

Rate Review Grants For States

CMS also released on October 31, a fact sheet announcing $22.5 million in Health Insurance Enforcement and Consumer Protection grant awards to 22 states. The Affordable Care Act appropriated $250 million for grants to the states to improve their rate review processes. Funds that were not fully obligated under this program by the end of fiscal year 2014 became available for CMS to award to the states for planning and implementation of the insurance market reforms and for consumer protection. These grants are from those funds.

The awards vary from $249,070 for Maryland to $1.8 million for California and will last for two years. Most of the grants will be spent for planning and implementation efforts related to the essential health benefits, preventive services requirements, medical loss ratio provisions, appeals process, and mental health and substance use disorder parity.

House v. Burwell Amicus Briefs

Finally, on October 31 six amicus briefs were filed in the House v. Burwell case in the District of Columbia federal court of appeals. Members of the House are arguing in this case that Congress never appropriated funds for the cost-sharing reduction payments that reimburse insurers for reducing cost sharing for lower-income consumers.

Eleven Democratic members of the House of Representatives who were in leadership at the time the ACA was enacted filed a brief supporting the government's arguments that disputes between the administration and one House of Congress over funding of a government program should be resolved through the normal legislative process, not through litigation. The members assured the court that at the time the ACA was passed everyone understood that the cost-sharing reduction payments at issue in House v. Burwell would be funded from the same permanent appropriation as the advance premium tax credits.

Three other amicus briefs were also filed supporting the administration. One was filed by 49 health economists and health policy scholars, including three Nobel Prize winners and three former heads of the Congressional Budget Office (and myself), contending that the economic structure and legally interrelated provisions of the ACA make it clear that Congress intended the cost-sharing reduction payments to be permanently funded. A brief filed by Families USA and five other consumer organizations asserts:

Now, frustrated after some 60 futile votes to repeal the ACA that failed to command the concurrence of the Senate, the House itself has brought suit, asking the Court to do what Congress lacks the votes to do itself: nullify a duly-enacted, effectively functioning statute.

The brief describes the injuries that marketplace enrollees would suffer if the House succeeds in its litigation and contends that the House has suffered no injury that would give the court jurisdiction over the case.

Yet another brief was filed by three eminent law professors who are among the nation's top experts in federal jurisdiction. They argued that long-established precedent bars federal court jurisdiction over a lawsuit brought by one house of Congress challenging an action of the executive, including a lawsuit brought under the Appropriations Clause.

Finally, the nation's four hospital associations and AHIP and the Blue Cross Blue Shield Association filed briefs documenting, respectively, the damage that affirming the district court's ruling for the House would do to America's hospitals and insurers. Although the briefs are labeled, no doubt under an excess of political timidity, as briefs supporting neither party, they both seem to urge the court to reverse the district court's ruling for the House. The AHIP/BCBSA brief additionally asks the court to, if it sides with the House, delay the implementation of its judgment to give insurers time to raise their rates or abandon the marketplaces.

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