Milliman has published six questions for consideration by healthcare stakeholders about the Trump administration’s recent executive order, which gives a sweeping command to the leaders of the new administration to unwind certain aspects of the Patient Protection and Affordable Care Act (ACA)—especially those components deemed “burdensome.” It remains unclear how the Trump administration will implement this authority, especially because of the interconnected nature of the ACA, but given Milliman’s comprehension of the law, several key questions arise.
“Milliman has been working with clients across the healthcare system to implement reform since before the Affordable Care Act was signed into law, and we stand ready to assist clients in another round of reform,” said Lorraine Mayne, Milliman Health Practice Director. “The executive order signed on Friday is the first step in a new healthcare reform journey. Based on our understanding of the regulatory authority held by various federal and state entities, we have highlighted several complex questions. We’ve drawn a particular focus on what this may mean for the ACA individual health insurance market, Medicaid, and small employers. Changes for large employers are likely less significant while pharmas and others might not see any immediate differences.”
Strategic questions facing healthcare stakeholders include:
1. Will “hardship” undermine the individual mandate? The executive branch does not have the power to undo statutes—that requires an act of Congress—but the administration could defang the individual mandate via expansion of the hardship exception. It’s unclear if individuals would need to apply for such hardship, if proof of hardship might become part of tax forms (e.g., simply a checkbox), or if the administration could simply opt not to enforce the requirement. Some repeal and replace proposals have called for enrollment penalties similar to those in the Medicare Part B program as an alternative to a mandate—after all, any stable risk pool needs to ensure healthy people have an incentive to enroll. But until any alternative measure is installed, a weakening of the individual mandate may result in lower enrollment by healthy people and a sicker, higher-cost risk pool.
2. Are transitional plans here to stay? Thirty-three states allowed insurers to provide “transitional plans” where insureds have been able to keep their pre-ACA health coverage. The option began with the initial 2014 open enrollment and remains available through the end of 2017. Because pre-ACA coverage was subject to underwriting and risk-based rating, many insureds could maintain lower rates in the transitional coverage while those with less favorable terms migrated to ACA markets. As a result, these transitional plans generally have lower risk and the plans sold through the ACA marketplace have higher risk than if the pools were combined. Insurers anticipated that the expiration of the transitional plans had the potential to introduce new, healthier members to the risk pool and lead to lower rate increases. If transitional plans are extended indefinitely, it could deny ACA plans that relief.
3. What impact could the executive order have on selling insurance across state lines? President Trump argued repeatedly in favor of selling health insurance across state lines during the presidential campaign. And, in fact, the executive order includes a provision calling on agencies to “encourage the development of a free and open market in interstate commerce for the offering of healthcare services and health insurance.” However, it is not clear how this executive order can actually do that; statutory change is probably required. McCarran-Ferguson remains in place, which gives insurance regulatory authority to the states, and thus would seemingly prohibit interstate sales. Practically speaking, it’s unclear why a state would cede authority to allow for a plan from another state to sell insurance in its market or how interstate regulation would actually work.
4. Will the executive order fast-track pending 1115 waivers? The federal government now may be willing to grant more flexibility to state Medicaid programs requested through pending Section 1115 waivers. As of today, there are 11 new Medicaid 1115 waiver applications pending with the federal government. The executive order may encourage the federal Department of Health and Human Services (HHS) to quickly approve these waivers and empower states to make changes. The approval of the 1115 waivers would lead to a number of Medicaid transformation projects for the requesting states, which include, but are not limited to, healthy rewards accounts, work requirements, and integrated mental health programs.
5. Could the employer market be at the center of the action? Over the years, employers have repeatedly expressed concern about the extra burdens placed upon them by the ACA. These concerns related to higher taxes and fees (e.g., the insurer fee passed on to them in the form of higher premiums, the Cadillac tax, and the employer mandate penalties). Employers have also taken issue with increased administrative reporting requirements. Small-group employers have faced even greater changes than the large-group market, with limited plan design choices and restrictive premium structures. Many employers would applaud a loosening of restrictions. It could start with a reduction in paperwork. An easing of reporting requirements for employer groups could signal a relaxation on other requirements.
6. Will essential health benefits be affected? The ACA created the notion of minimum essential health benefit (EHB) categories. Through regulation, HHS allowed states some flexibility in the definition and implementation of EHBs. One such measure was allowing individual states to select a “benchmark plan” to use as a comparative standard. This would allow states to cover the required categories while at the same time recognizing their own mandated benefits. If EHB regulations are relaxed, some modifications to these minimums may occur. The requirement to provide what are sometimes viewed as controversial benefits such as contraception coverage could potentially be modified by an executive order, or when and if the ACA is modified or replaced. Also linked to this issue is the calculation of the actuarial value of the benefits after cost sharing is applied. This process is dictated by law and regulation and will need to be carefully watched as reconsideration of ACA proceeds.