Tag Archives: California

Insurance Commissioners’ CSR Malpractice

Today, a Senate committee hearing will feature testimony from insurance commissioners about the status of Obamacare in their home states. It will undoubtedly feature pleas from those commissioners for billions of new dollars in federal funds to subsidize insurance markets. But before Congress spends a single dime, it should take a hard look at insurance commissioners’ compliance with their regulatory duties regarding Obamacare. On several counts, preliminary results do not look promising.

Of particular issue at today’s hearing, and in health insurance markets generally: Federal payments to insurers for cost-sharing reductions, discounts on co-payments, and deductibles provided to certain low-income individuals. Obamacare authorized those payments to insurers, but did not include an appropriation for them. Despite lacking an explicit appropriation, the Obama administration started making the payments anyway when the exchanges began operation in 2014.

Rightfully objecting to an intrusion on its constitutional “power of the purse,” the House of Representatives filed suit to block the payments in November 2014. In May 2016, a federal district court judge ruled the insurer payments unconstitutional, halting them unless and until Congress granted an explicit appropriation.

By the middle of 2016, it seemed clear that the cost-sharing reduction payments lay in significant jeopardy. While the federal district court allowed the payments to continue during the Obama administration’s appeal, a final court ruling could strike them down permanently. Moreover, a new administration would commence in January 2017, and could stop the payments immediately. And neither Hillary Clinton nor Donald Trump had publicly committed to maintaining the insurer payments upon taking office.

Let’s Let the Problem Fester to Put Trump in a Bind

How did insurance commissioners respond to this growing threat to the cost-sharing reduction payments? In at least some cases, they did nothing. For instance, in response to my public records request, the office of Dave Jones, California’s insurance commissioner, admitted that it had no documents examining the impact of last May’s court ruling on the 2017 plan bid year.

To call this lack of analysis regarding cost-sharing reductions malfeasance would put it mildly. A new president could easily have cut off those payments—payments totaling $7 billion this fiscal year—unilaterally on January 20. Yet the regulator of the state’s largest insurance market had not so much as a single e-mail considering this scenario, nor examining what his state would do in such an occurrence.

For Democrats such as Jones, last year’s silence on cost-sharing reductions represents a happy coincidence. Had insurance commissioners required insurers to price in a contingency margin for 2017—to reflect uncertainty over whether the federal payments would continue—those higher premiums would undoubtedly have hurt Clinton during last fall’s campaign. Instead, liberals like Jones who remained quiet last year have suddenly started shouting from the rooftops about “uncertainty” leading to higher premiums—because they believe Trump, not Clinton, will bear the political blame.

Break the Law to Fund Our Political War Against You

Indeed, insurance commissioners who remained silent last year about cost-sharing reduction payments have responded this year in alarming fashion. The commissioners’ trade association wrote to the Trump administration in May asking them “to continue full funding for the cost-sharing reduction payments for 2017 and make a commitment that such payments will continue.”

The insurance commissioners essentially demanded the Trump administration violate the Constitution. Article I, Section 9, Clause 7 of the Constitution grants Congress the sole power to appropriate funds, and the Supreme Court in a prior case (Train v. City of New York) ruled that the executive cannot thwart that will by declining to spend funds already appropriated. Under the Constitution, a president cannot spend money, or refuse to spend money, unilaterally—but that’s exactly what the insurance commissioners requested.

By implicitly conceding the unconstitutional actions by the Obama administration, and asking the Trump administration to continue those acts, the commissioners’ own letter exposes their dilemma. Why did commissioners ever assume the stability of a marketplace premised upon unconstitutional actions? And why did commissioners purportedly committed to the rule of law ask for those unconstitutional actions to continue?

Regardless of whether members of Congress wish to make the payments to insurers, they should first demand answers from insurance commissioners for their regulatory failure. Insurance commissioners’ collective ignorance that the unconstitutional cost-sharing reduction payments could disappear closely mimics banks’ flawed assumptions in the years leading up to the subprime mortgage collapse. Unless Congress relishes the thought of passing another TARP program, they would be wise to exercise their oversight authority before they even think about getting out the taxpayers’ checkbook.

This post was originally published at The Federalist.

A “Grand Bargain” on Obamacare Repeal?

To know where you’re going, it helps to recognize where you’ve been. Examining the causes of Republicans’ legislative setbacks on health care—including last month’s dramatic failure of a “skinny” repeal bill on the Senate floor—provides the glimmer of a path forward for a legislative “repeal-and-replace” package, if they are bold enough to take it.

In both the House and the Senate, debate focused on a push-pull between two competing issues: The status of Medicaid expansion in the 31 states that accepted it, and what to do about Obamacare’s regulatory regime. During the spring and summer, congressional leaders attempted messy compromises on each issue, phasing out the higher federal match for Medicaid expansion populations over time, while crafting complex processes allowing states, insurers, or both to waive some—but not all—of Obamacare’s regulatory requirements.

But rather than constructing substantively cumbersome waiver arrangements—the legislative equivalent of a camel being a horse written by committee—Occam’s Razor suggests a simpler, cleaner solution: Preserving the status quo (i.e., the enhanced federal match) on Medicaid expansion in exchange for full repeal of Obamacare’s insurance regulations at the federal level.

A “grand bargain” in this vein would give Senate moderates a clear win on Medicaid expansion, while providing conservatives their desired outcome on Obamacare’s regulations. For this conservative at least, the regulations represent the heart of the law, prompting both its spending on exchange subsidies—to offset the higher premium costs from the regulatory mandates—and the taxes needed to fund that spending. Expelling the regulations from the federal statute books would represent a clear step towards the promise of repealing Obamacare “root and branch,” and return control of health insurance to the states, where it lay from 1947’s McCarran-Ferguson Act until Obamacare.

Federal Regulations Are Driving Up Health Costs

When coupled with structural reforms to Medicaid—a block grant or per capita caps—included in the House and Senate bills, repealing the federal regulations would enable the “laboratories of democracy” to reassert control over their health insurance markets and Medicaid programs. It would also contrast favorably with a recent proposal introduced by senators Lindsey Graham (R-SC) and Bill Cassidy (R-LA). While Graham claims his plan would “empower each individual state to choose the path that works best for them,” in reality it would retain federal dictates regarding pre-existing conditions—the most costly of all the Obamacare mandates.

In a sad irony, some of the same senators who want Congress to respect their states’ decisions to expand Medicaid also want to dictate to other states—as the Graham-Cassidy plan does—how their insurance markets should function. But the true test of federalism applies not in the principle’s convenience, but in its inconvenience.

I do not support single-payer health care, but as a federalist, I support the right of states like California and Vermont to explore a state single-payer system. There are other, arguably better, ways to cover individuals with pre-existing conditions than a Washington-imposed requirement, and true adherents of federalism would empower states to explore them.

Yes, This Idea Is Imperfect

To be sure, even this attempted “grand bargain” includes noteworthy flaws. Retaining the enhanced Medicaid match encourages states to prioritize expansion populations over individuals with disabilities in traditional Medicaid, and may lure even more states to accept the expansion. Keeping the higher Medicaid spending levels would preclude repealing all of Obamacare’s tax increases. And the Senate parliamentarian may advise that repealing Obamacare’s regulations does not comport with the budget reconciliation process. But despite the obvious obstacles, lawmakers should seriously explore this option. After Republicans promised repeal for four straight election cycles, the American people deserve no less.

Throughout the repeal process, conservatives have bent over backwards to accommodate moderates’ shifting legislative goalposts. When moderates objected to passing the repeal legislation all but one of them voted for two years ago, conservatives helped construct a “repeal-and-replace” bill. When moderates wanted to retain the Medicaid expansion in their states—even though the 2015 repeal bill moderates voted for eliminated it entirely—conservatives agreed, albeit at the traditional match rates. And when Senate moderates complained, conservatives agreed to a longer phase-out of the higher match rate, despite justifiable fears that the phase-out would never occur.

Winston Churchill purportedly claimed that Americans will always do the right thing—once they have exhausted every other possibility. This “grand bargain” may not represent the “right” outcome, or the best outcome. But conservatives have exhausted many other possibilities in attempting to come to an agreement. Perhaps moderates will finally come to accept federalism—giving states a true choice over their insurance markets, rather than trying to dictate terms—as the solution to keeping their promise to the American people and repealing (at least part of) Obamacare.

This post was originally published at The Federalist.

An Exchange Death Spiral?

The Supreme Court is expected to rule soon on the legality of insurance subsidies in 37 states that use the federal HealthCare.gov site. Some states have discussed creating their own exchanges in the wake of the court’s decision, but those may not be fiscally sustainable.

The Los Angeles Times reported last week that Covered California, the Golden State’s exchange, “is preparing to go on a diet,” cutting its budget 15% for the fiscal year beginning July 1 because of lower-than-expected enrollment. Earlier this month, Hawaii’s state exchange prepared plans to shut down this fall amid funding shortfalls. Hawaii’s exchange had technical problems that have impeded signups since its launch, but Covered California has had relatively few computer glitches. During the HealthCare.gov rollout problems in 2013, columnist Paul Krugman held up California as a model of efficiency:

What would happen if we unveiled a program that looked like Obamacare, in a place that looked like America, but with competent project management that produced a working website? Well, your wish is granted. Ladies and gentlemen, I give you California.

Mr. Krugman called California “an especially useful test case,” saying that “it’s huge: if a system can work for 38 million people, it can work for America as a whole.”

But that model has run into financial distress. After slashing its spending, Covered California achieved a balanced budget for next year by utilizing $100 million in federally provided start-up funds. The Department of Health and Human Services’ inspector general and at least two U.S. senators have questioned whether exchanges are using start-up funds to plug holes in their budgets—a practice prohibited by law and one the senators called a “short term fix” in a letter to the Centers for Medicare and Medicaid Services. Using federal funds may help Covered California next year—but it will leave a multi-million-dollar hole in its budget the following year, leading to another round of belt-tightening.

The spending cuts—particularly a 33% reduction to marketing and outreach next year—will have an impact. As one report noted, “With enrollment growing more slowly than expected, a big cut in marketing might result in continued difficulties reaching target markets.” In other words, a spending cut next year could result in lower-than-expected enrollment—and budget crunches—in future years. Covered California could raise the $13.95 per policy monthly fee to generate more revenue—but that would also raise premiums, potentially driving away customers.

Before the exchanges opened, some worried about a disproportionate number of sick patients driving up premiums–and driving out healthy enrollees. A related phenomenon could be happening in state-run exchanges: in which few sign-ups result in a combination of cuts to outreach programs and/or higher monthly fees, discouraging enrollment and starting another round of the spiral. It’s possible that California’s experience could be a useful test case of that proposition—and a cautionary tale for those states contemplating their own exchanges.

This post was originally published at the Wall Street Journal’s Think Tank blog.

Has Obamacare Enrollment Peaked?

Has the effort peaked to sign up uninsured Americans for coverage? The announcement that the nonprofit organization Enroll America is laying off staff and redirecting its focus in the face of funding cuts comes amid inconsistent sign-ups during the second Affordable Care Act open-enrollment period and concerns about affordability.

A recent New York Times analysis compared Kaiser Family Foundation estimates of potential enrollees with sign-up data from the Department of Health and Human Services. While some states that signed up few people in 2014 recovered during the 2015 open enrollment, other states lagged: “California, the state with the most enrollments in 2014, increased them by only one percentage point this year, despite a big investment in outreach. New York improved by only two percentage points. Washington’s rates are unchanged.”

Most states could not post consistent gains in both open-enrollment periods. An official from Avalere Health, a consulting firm, told the Times that she was “starting to wonder if we’ve overestimated the whole thing.”

A recent analysis from Avalere Health demonstrates why the enrollment push may have peaked. The percentage of eligible Americans signing up drops off significantly as income rises and federal subsidies phase out, suggesting that absent subsidies Americans find the exchange insurance products unaffordable or of little value. And if the carrot of federal subsidies has not resulted in expected enrollment, the stick—the mandate to purchase insurance—seems even less effective: The special open-enrollment period to accompany this year’s tax-filing season has resulted in 36,000 sign-ups in the 37 states using HealthCare.gov. But 4 million to 6 million people are expected to pay the mandate tax.

The Congressional Budget Office (CBO) estimates that ACA enrollment will average 11 million individuals, with 8 million receiving subsidies. So far, enrollees reporting incomes above the threshold for subsidies are only 2% of uninsured individuals who have signed up, making it hard to see how the administration can reach CBO’s estimate of 6 million unsubsidized exchange enrollees in 2016. The fact that California, New York, and Washington state achieved only marginal enrollment improvements from 2014 to 2015 does not bode well for achieving CBO’s target of 15 million subsidized enrollees next year—a more than 50% increase from the 9.9 million individuals who qualified for subsidies in 2015.

With outreach efforts scaling back, and many Americans uninterested in ACA coverage absent hefty federal inducements, CBO’s estimate of 21 million enrollees next year seems unlikely to be met. If this year’s results from California and New York are any indication, a good question may be whether 2016 enrollment will grow at all.

This post was originally published at the Wall Street Journal’s Think Tank blog.

The Medicaid Conundrum

Two recent articles on California’s fiscal situation illustrate the mixed messages coming from some states, which face rising costs from expanding Medicaid under the Affordable Care Act even as they grapple with a reduced, and frequently fickle, tax base.

On Tuesday, the Los Angeles Times highlighted the growing cost of Medicaid in the Golden State—namely, a $1.2 billion hole in the state’s budget.  While California’s Medicaid enrollment exceeded projections by 1.4 million, many of those new enrollees had already been eligible for the program. The federal government provides states a 100% Medicaid match through 2016, but that’s only for those individuals newly eligible under the 2010 health-care law; if individuals who had already been eligible for but not enrolled in Medicaid come out of the woodwork, states will pay a portion of those costs. In 2012, the Department of Health and Human Services estimated that states would pay an average of 43% of those enrollees’ Medicaid costs in this fiscal year.

On Thursday, The Wall Street Journal reported on the “income tax yo-yo” California and many other states are facing. A recent Rockefeller Institute report found that state revenue declined in the first quarter of 2014, and many states are reporting shrinking surpluses or projected deficits. Meanwhile, economists at the Federal Reserve Bank of Chicago have noted the increasingly uncertain nature of state tax collections.

Some states opted to expand Medicaid under the health-care law, raising costs and budgetary pressures at a time of volatile tax revenue. In some cases, the result has been cognitive dissonance. California Gov. Jerry Brown was quoted in Thursday’s Journal saying: “We can’t spend at the peak of the revenue cycle—we need to save that money, as much of it as we can.”  But two days earlier, Mr. Brown had expressed pride in the “huge social commitment” that health-care expansion represented in his state—even as it caused a billion-dollar overspend.

Ultimately, states that expand Medicaid could face pressure to cut other important services, whether health-related or in areas such as corrections or education. Recent trends have moved toward reductions because when an irresistible force such as a shrinking tax base meets an immovable object—the rising costs from expanding Medicaid—something has to give.

This post was originally published at the Wall Street Journal’s Think Tank blog.

Obamacare Impact: Another Insurer Leaves California Market

The Los Angeles Times reports this morning on another disturbing Obamacare-related development in California:

The nation’s largest health insurer, UnitedHealth Group Inc., is leaving California’s individual health insurance market, the second major company to exit in advance of major changes under [Obamacare].

Due to UnitedHealth’s decision, thousands of individuals will be forced to find a new health insurance option. However, those options keep dwindling; as the article notes, today’s development comes just a few weeks after Aetna announced it was also pulling out of the California market, leaving nearly 50,000 California residents searching for new health coverage.

Even advocates of Obamacare could not hide their dismay about today’s development. As the Times article notes:

The departure of another big-name insurer raised concerns about the effect of reduced competition on California consumers. “I don’t think this is a good result for consumers,” said California Insurance Commissioner Dave Jones. “It means less choice, less competition and even more consolidation of the individual market with three big carriers.”

However, as The Wall Street Journal reported last month, these two California announcements could represent merely the leading edge of bad news for policyholders: “Insurance-industry experts say similar moves by other carriers in other states may emerge in coming months, as companies with limited market share decide to avoid the uncertainty tied to [Obamacare’s] changes.”

Recall that in 2008, then-Senator Obama promised that “for those who have insurance now, nothing will change under the Obama plan—except that you will pay less.” Recall too that the Obama Administration intends to use California as “proof that [Obamacare] is working.” Obamacare is working, all right—but not exactly as promised. A month’s worth of stories about skyrocketing premiums and thousands losing their health insurance demonstrates how Obamacare’s supposed “success story” is shaping up to be a significant failure.

This post was originally published at the Daily Signal.

Obamacare: Krugman’s California Dreamin’

Since California released its health care exchange premium rates late last week, liberals such as Paul Krugman have argued that Obamacare’s predicted “rate shock” will fail to materialize next year. At least three reasons explain why liberals’ argument falls short:

1. Dubious Assumptions About Exchange Enrollment

Some independent observers questioned whether the insurance companies in California’s exchange made favorable—and dubious—assumptions about the people who would buy insurance on the exchange next year. The Washington Post noted that “if sick people sign up en masse next year…that could dramatically increase costs for insurers, who would then have to recoup the money by increasing premiums.” One vice president at Avalere Health, a consulting firm, told the Post that a delayed premium spike could happen:

[The projected premium rates] are low enough that you have to think, are there going to be health plans in this market that are underwater…. It’s so hard to predict because you don’t know who’s going to show up on the market.

2. A Pre-Existing Preview

While no one knows who will sign up for exchange coverage next year, an Obamacare program already up and running—one established for individuals with pre-existing conditions—has attracted far sicker enrollees than first anticipated. As The New York Times reported last week:

The administration had predicted that up to 400,000 people would enroll in the program, created by the 2010 health care law. In fact, about 135,000 have enrolled, but the cost of their claims has far exceeded White House estimates, exhausting most of the $5 billion provided by Congress….

When the federal program for people with pre-existing conditions ends on Jan. 1, 2014, many of them are expected to go into private health plans offered through new insurance markets being established in every state. Federal and state officials worry that an influx of people with serious illnesses could destabilize these markets, leading to higher premiums for other subscribers.

People in the pre-existing condition program have been much sicker than actuaries predicted at the time the law passed. If that phenomenon repeats itself in the exchanges—either because only sick individuals enroll, or because employers struggling with high health costs dump their workers into the exchanges—premiums will rise significantly in future years.

3. Bait and Switch

As a column in Bloomberg notes, for all the press around California’s supposedly low exchange premiums, officials generated such spin only by comparing apples to oranges:

Covered California, the state-run health insurance exchange, yesterday heralded a conclusion that individual health insurance premiums in 2014 may be less than they are today. Covered California predicted that rates for individuals in 2014 will range from 2 percent above to 29 percent below average small employer premiums this year.

Does anything about that sound strange to you? It should. The only way Covered California’s experts arrive at their conclusion is to compare apples to oranges—that is, comparing next year’s individual premiums to this year’s small employer premiums. (Emphasis added.)

Therein lies one of Obamacare’s many flaws. Liberals now argue that while some may pay more for coverage, they will get “better” benefits in return. However, when campaigning in 2008, then-Senator Barack Obama didn’t say he would raise premiums; he said he would give Americans better coverage: He promised repeatedly that he would cut premiums by an average of $2,500 per family. That gap between Obamacare’s rhetoric and its reality makes arguments such as Krugman’s seem fanciful by comparison.

This post was originally published at the Daily Signal.

Even Supporters Fear Obamacare’s Impact on States

An eye-opening article in yesterday’s Los Angeles Times shows the dilemma states are facing as they begin to make crucial policy and budgetary choices surrounding Obamacare.  The article notes that the law “takes states into uncharted territory” as they attempt to estimate the fiscal impact of Obamacare’s massive Medicaid expansion:

California, which plans to expand coverage to hundreds of thousands of people when the law takes effect in 2014, faces myriad unknowns.  The Brown administration will try to estimate the cost of vastly more health coverage in the budget plan it unveils next month, but experts warn that its numbers could be way off.  Officials don’t know exactly how many Californians will sign up for Medi-Cal, the public health insurance program for the poor.  Computing the cost of care for each of them is also guesswork.  And California is waiting for key rulings from federal regulators that could have a major effect on the final price tag, perhaps in the hundreds of millions of dollars….

Unanticipated costs associated with the healthcare changes could undermine California’s efforts to improve its standing on Wall Street and keep the economy moving.  They could force fresh cuts in services if they consume much more of the state budget than Brown is able to approximate….

Gov. Jerry Brown expressed a new concern in an interview last week.  He said recent signs from Washington suggest the federal government may not pay as much of the costs associated with the new law as originally promised, sticking states with a larger share of the bill.  “As the guardian of the public purse here, I have to watch very closely what may come out of Washington,” the governor said.  “So we’re going to move carefully.  We want to make sure the federal government is on board.”

These statements of caution and concern come from a major supporter of the law.  And little wonder: Over the past two fiscal years, states had to close a combined $146.3 billion in budget gaps – yet Obamacare is about to impose new unfunded mandates on states of at least $118 billion.  Both the numbers, and the diffident attitude from the governor of the largest state in the union, should serve as a cautionary tale for states contemplating the massive fiscal hit Obamacare will impose on their budgets.

Obamacare’s Christmas Present: Higher Premiums

Even as Americans gather to celebrate the Christmas holiday, they will soon face an unwelcome surprise come the new year: premium increases sparked by Obamacare.  Earlier this month, the Los Angeles Times reported on a 20% increase sought by California Blue Shield – and what was one of the reasons given for the jump?  You guessed it:

The company also expects higher costs from an influx of new customers under the federal healthcare law in 2014. “It’s a once-in-a-lifetime change in the healthcare market that will bring a lot of volatility, and we need higher reserves for that,” [a spokesman] said.

If Obamacare results in only a 20% premium increase, customers may be lucky.  Recently, Aetna CEO Mark Bertolini told an investor conference that premiums could double as a result of Obamacare:

While subsidies in the law will shield some people, other consumers who make too much for assistance are in for “premium rate shock,” Mark Bertolini, who runs the third-biggest U.S. health-insurance company, told analysts yesterday at a conference in New York….“We’ve shared it all with the people in Washington and I think it’s a big concern,” the CEO said.  “We’re going to see some markets go up as much as 100 percent.”

Candidate Obama promised repeatedly that his health plan would CUT premiums by an average of $2,500 per family within his first term.  But premiums have already risen by $3,065 since Barack Obama was elected President.  And the recent news suggests premiums will only skyrocket further in the coming months and years.  In other words, Obamacare is shaping up to be a perpetual lump of coal in Americans’ Christmas stockings.

White House: We Promised a $2,500 Premium Cut — Here’s a $118 Rebate Instead

The White House released a blog posting this morning attempting to trumpet examples of Obamacare’s medical loss ratio rebates, set to be delivered during the summer campaign season. Herewith are some of the Obamacare “success stories” the White House is promoting on its website, along with my calculations about the average rebate check being disbursed in each case:

  • “BlueCross BlueShield of Tennessee has announced that it will pay $8.6 million to about 73,000 individual policyholders in August because they spent less than 80 percent of premiums on health care.” [Average rebate: $117.81 per policyholder.]
  • “In Arizona, more than $36 million in refunds will go to both consumers and small businesses.  One insurer in the state, Blue Cross Blue Shield of Arizona, alone will pay out an estimated $8.7 million to more than 77,000 individual policyholders, and another $3.2 million to more than 3,700 small businesses.”  [Average rebates: $112.99 per policyholder and $864.86 per business, respectively.]  “United Healthcare’s Golden Rule Insurance will refund nearly $8.7 million to more than 30,000 additional Arizona policyholders.” [Average rebate: $290 per policyholder.]
  • “Two insurers in California will pay out more than $50 million in rebates to nearly 1 million customers statewide.” [Average rebate: $50 per policyholder.]

Candidate Obama repeatedly promised premiums would go down by $2,500 — and would go down that amount by this year. For instance, in a speech on February 27, 2008, he said that “We’re going to work with you to lower your premiums by $2,500 per family per year.  And we will not wait 20 years from now to do it or 10 years from now to do it.  We will do it by the end of my first term as President.” Likewise, in July 2008, Jason Furman — who remains a senior economic advisor within the Administration – told the New York Times that “we think we could get to $2,500 in savings by the end of the first term, or be very close to it.”

For the White House to claim now that a rebate check of $118, or even $290, comes anywhere close to meeting the President’s $2,500 premium promise shows how badly even the Administration recognizes the law has failed — by attempting to invoke the soft bigotry of low expectations when it comes to the unpopular 2,700-page measure.

Kaiser Premiums 2011