UPDATE, May 22: The Trump Administration on Monday asked for another 90-day abeyance in the CSR appeal, while continuing the payments in the interim. The action means an appellate decision on the legality of the crucial cost reduction subsidies will be put off for as much as three months. The Administration also indicated it opposes the request by 15 states and the District of Columbia to take over the defense of the CSR payments from the White House.
To some experts, this is the worst of all possible worlds: It continues the uncertainty over Trump's policy on the crucial payments, while putting off further court deliberation until after many insurance companies have filed their initial rate requests for 2018.
The result is that an uncertainty surcharge will be "baked into" insurers' premium requests, says former Medicaid and Medicare chief Andy Slavitt, who calls it a "Trump surcharge" and estimates it at about 19%.
Nicholas Bagley of the University of Michigan observes that Congress still could make the CSR problem go away—Congress by appropriating the money or amending the law to make the subsidies available permanently. Trump could also blow up Obamacare at any point by dropping the White House appeal of the lower-court ruling that the payments are illegal.
In other words, Trump's action Monday solves nothing, and leaves the individual insurance market profoundly unsettled.
Original column, Friday, May 19:
Organizations representing most of the healthcare industry — along with attorneys general from 15 states and the District of Columbia — took desperate steps Friday in a last-ditch attempt to keep President Trump from blowing up the Affordable Care Act.
Action being contemplated by Trump could lead to millions of Americans suddenly moving "to the ranks of the uninsured," a coalition of healthcare groups wrote in a letter to Senate Republican and Democratic leaders. "This threatens not just their own health and financial stability, but also the economic stability of their communities."
Monday is a crucial deadline. On that day, the Trump administration has to tell a federal appeals court whether it will continue to defend the ACA against a legal attack by the House of Representatives. Alternatively, the White House could seek a 90-day stay on the proceedings. The attorneys general are asking the court to allow them to take over the defense from the White House.
The industry leaders and states are reacting to signs that Trump is a thin reed to rely on to preserve health coverage for millions. "The President has increasingly made clear that he views decisions about providing access to health insurance...as little more than political bargaining chips," the states say in the motion to the appeals court.
The issue before the court is a dangerous one for the Affordable Care Act and some 10 million Americans who depend on its individual exchanges for their health coverage. At the center of the case are the act's cost-sharing reductions — subsidies covering deductibles and co-pays for individual buyers with income less than 250% of the federal poverty line.
The subsidies this year come to $7 billion, to be paid to insurers covering 7 million customers. The subsidies are authorized under the healthcare act, but House Republicans filed a lawsuit in 2014 asserting that because the money hadn't been specifically appropriated, paying the money is illegal. They won the first round in U.S. District Court last year, but the judge stayed her ruling pending an appeals court decision.
Ending the cost-sharing reductions would destroy the individual insurance market in many states, where insurers have the legal right to cancel policies immediately if the CSRs aren't paid.
That's where matters stand. Since his inauguration, Trump has dithered over whether to pay out the subsidies and continue fighting for them in court. On occasion, he's threatened to kill the payments as a bargaining chip to force Democrats to negotiate an Obamacare repeal.
On Tuesday, according to Politico, Trump told aides he wants to end the subsidies. And as my colleague Noam Levey reported Thursday, at a recent meeting, Trump's new Medicaid and Medicare chief, Seema Verna, offered a bargain to stunned industry officials: The administration would fund the cost-sharing reductions if insurers supported House Republicans' hugely unpopular bill to repeal the Affordable Care Act.
These alarming signals prompted the flurry of letters and pleas filed Friday by insurers and state officials. The industry letter was signed by America's Health Insurance Plans, the insurance industry lobbying group; the American Academy of Family Physicians; the American Benefits Council; the American Hospital Assn.; the American Medical Assn.; the Blue Cross Blue Shield Assn., the Federation of American Hospitals and the U.S. Chamber of Commerce.
They called uncertainty about cost-sharing reductions "the single most destabilizing factor causing double-digit premium increases for 2018." Insurers must file preliminary rate requests in many states by June 21, which means they're pondering right now whether to participate in the market next year.
The consequences of a blowup are dire, they warned. Not only will millions lose their coverage, but doctors, hospitals and employers will face higher healthcare costs. Taxpayers will pay billions in extra costs, they wrote, because higher premiums will mean higher tax subsidies for eligible buyers. And for more than 2 million Americans in the individual market who earn too much to receive subsidies, higher premiums could make coverage unaffordable.
The organizations place the responsibility squarely on the lawmakers: "At this point, only Congressional action can help consumers." That's because the CSR issue would be rendered moot by a simple fix of a few lines enacted by Congress, authorizing the payments.
The same organizations have made a similar appeal before, with letters to Congressional leaders and to Trump on April 12. Those appeals went unheard. The only subsequent action on Capitol Hill was the passage by House Republicans of the American Health Care Act, an Obamacare repeal measure that would cost 24 million Americans their coverage if enacted into law, according to an analysis by the Congressional Budget Office. Friday's letter has a more urgent tone.
The states' initiative is being led by California Atty. Gen. Xavier Becerra and his New York counterpart, Eric Schneiderman. It's joined by Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, New Mexico, Pennsylvania, Vermont, Washington and the District of Columbia.
Ending the cost-sharing reductions, the states say, "could trigger the very system-wide 'death spirals' that central ACA features… were designed to avoid." Sharply higher prices and the loss of the CSRs would prompt healthier buyers to drop their coverage, leaving only costlier patients in the market. That would force premiums even higher, prompting more of the healthy buyers to drop coverage.
Trump's threats to end the CSRs "make clear that the current administration does not represent the states' interests," the motion says.
If the court allows the states to take over the law's defense, "it's a game changer," Nicholas Bagley of the University of Michigan observed in a tweet Friday. "Trump couldn't unilaterally dismiss the appeal; the states could keep it alive. … Insurers could breathe a bit easier."
But that would only remove the immediate threat, not the threat that the court eventually could rule the CSRs illegal. As long as the lawsuit remains under consideration, Bagley noted, insurers will have to price that possibility into 2018 premiums.