Coverage for One and for All?

In 2010, Congress passed the Patient Protection and Affordable Care Act (ACA) with the goal of increasing accessibility to affordable health care. One of the ACA’s pillars required that insurance companies provide coverage to all customers, regardless of pre-existing medical conditions. For this “guaranteed issue” environment to work in the marketplace, two things are required: maximizing participation among customers and carriers, and managing affordability. We will review the historical context of guaranteed issue, some of the ways the ACA aimed to meet these goals, and how recent events could affect the effectiveness of guaranteed issue.

How Do You Promote Stable Markets?

In a guaranteed issue world, there are two keys to a sustainable individual market:

• Maximize participation. Encourage broad and stable participation of a diverse population. A key metric would be to keep the insured population large, relative to the number of uninsured.
• Manage affordability. Balance premium levels between claims coverage sufficiency and consumer affordability. External funding and flexibility (i.e., in plan offerings) could also help keep carriers and consumers in the market.

Maximize Participation

Insurance markets function most effectively when they can spread risk over a large diverse pool. We will explore three levers policymakers can pull to incentivize broad participation:

• Medicaid eligibility and funding. Create a safety net through Medicaid eligibility and funding to reduce the uninsured population. This broad safety net would reduce the uninsured population. Increasing funding to states would allow the states to cover more individuals and provide more services.
• Incentives. Design financial incentives to target different demographic groups. Building in incentives for members to buy and maintain coverage would increase participation. Incentives could include tax credits for proving continuous coverage or extra benefits for maintaining long-term coverage.
• Disincentives. Discourage members from dropping or from going without coverage. For example, this could include a tax on people without coverage or a surcharge when they apply for coverage without current or prior coverage.

Manage Affordability

Managing the affordability of premiums is key to a stable market in a guaranteed-issue world because it allows people of varying income levels to buy coverage. However, premiums must be adequate to pay claims, or carriers won’t be willing to offer coverage. It’s difficult for carriers to strike a balance between lower premiums and those sufficient to cover expected claims. Without correct pricing that is also consistent with consumer expectations, some people won’t buy coverage, working against the other key element to a stable market: maximizing participation.

Policymakers can pull the following levers to keep premiums affordable:

• Provide external funding that is adequate, predictable and stable. The level of funding would likely vary by state due to the varying market needs and distribution of the population’s health status and income level. This external funding could be in the form of reduced premiums based on income or reduced copayments of deductibles based on income.
• Allow carriers flexibility to design benefits and set premiums based on sound principles. Actuaries price plans according to a plan’s benefits, and if premiums get too high, one option could include increased cost sharing that the insured would pay or eliminating certain costly benefits to better manage premiums.
• Encourage continuous coverage to prevent gaming of the system and anti-selection.¹ This ties closely to maximizing participation. Encouraging continuous coverage through penalties, surcharges or other means will keep a healthier population overall because people will not forgo medical care due to lack of coverage. Maintaining a healthier population helps to reduce expected claim costs and, therefore, premiums.

A well-known component of the ACA is the individual mandate,² which was intended to increase participation by encouraging continuous coverage. The individual mandate requires those without employer-provided health insurance to either buy individual coverage or pay a penalty when they file their taxes. Without strong continuous-coverage requirements, the premiums in ACA markets have increased significantly.³ In the context of guaranteed issue, the individual mandate is a disincentive for people to go without coverage, but it helps accomplish both goals, maximizing participation and managing affordability.

Unfortunately, the individual mandate was not strong enough. We’ll address the circumstances that led to a weakened individual mandate further in the paper. But first, let’s look at some considerations for maintaining stability without the mandate.

History of Guaranteed Issue and the Individual Mandate

Before the ACA, individuals and small groups were routinely denied health insurance coverage because of pre-existing medical conditions. The ACA changed this by implementing guaranteed issue. Contrary to popular theory, providing coverage to everyone decreased the overall health of the pool, which also led to higher claims and premiums. Higher premiums tend to push out younger, healthier members. The ACA helped maximize participation in the individual market by providing subsidies to bring in members with lower income levels and by implementing the individual mandate to incentivize younger, healthier members to join the pool. These tools plus expanding Medicaid aimed to reduce the uninsured population. In 2010, about 57 million people were uninsured. That number has declined significantly since the passage of the ACA, but premiums have risen nationwide, threatening market stability. As we await what Congress might do to reinforce or repeal and replace the ACA, it’s helpful to look at state-specific examples of guaranteed issue for learnings and to explore the negative implication of the current ACA provisions.

Washington

In 1993, the Washington state legislature passed comprehensive health care reform. Like the ACA, it required most employers to provide health insurance to employees, and it required people to get health insurance or pay a penalty. Policies were required to cover a set of basic benefits, including prescription drugs and maternity care. It expanded Medicaid to offer insurance to those who could not afford coverage.

After two years, the legislature repealed most of the health care law, including the individual mandate. However, lawmakers kept the ban on denying insurance for those with pre-existing conditions. As a result, only those who needed health insurance bought it, leading to large losses for the insurance companies. Most of the state’s 19 insurers began pulling out of the market until it became virtually impossible to buy an individual policy. Premera Blue Cross said it lost more than $120 million by 1999 before it stopped selling individual policies in Washington.⁴

New Jersey

New Jersey’s effort to reform health care began in the late 1980s and has played out in three waves. First, Horizon Blue Cross Blue Shield of New Jersey acted as the state’s “insurer of last resort.” This approach failed because there wasn’t enough outside funding to maintain affordability. Next, New Jersey took a stab at a full guaranteed-issue market. This attempt also failed when young, healthy people stopped buying coverage, which led to a death spiral. A death spiral occurs when healthy people leave an insurance pool, with a population of ever-sicker people remaining.

Finally, in 2003, New Jersey scaled back its reforms and created a “Basic and Essential” insurance⁵ alternative, offering fewer benefits at lower rates. This coverage did not include more expensive services like prescription drugs, rehabilitation, chemotherapy and transplants. It also provided no protection against catastrophic expenses. The program, while providing coverage for many, resulted in some of the highest pre-ACA premiums in the nation.

Massachusetts

Massachusetts also went through several rounds of health care reform. The first round implemented a guaranteed-issue environment, but it failed when healthy people stopped buying coverage. The second round laid the groundwork for the ACA by putting in place guaranteed issue with incentives—such as subsidies for lower-income people; and disincentives—a requirement that everyone have coverage—aimed at maximizing participation. These actions helped cut the uninsured rate by half, but managing affordability has remained an issue. Even with broad participation, the state budget has been stretched by rising health care costs and lawmakers have struggled to ensure enough external funding to keep premiums affordable.⁶

Takeaways

Based on the experiences of Washington, New Jersey and Massachusetts, it is clear that the goals of health care reform are not fully achieved by simply maximizing participation. Participation and affordability both need to be addressed simultaneously to have a viable long-term market.

The ACA

The ACA was designed to make coverage accessible for everyone, including those with pre-existing medical conditions. To maintain affordability, insurance companies need to enroll enough young, healthy people to help offset higher medical costs from people with chronic conditions. One way the ACA tried to maximize participation was through the individual mandate. Other ACA features designed to maximize participation included guaranteed issue and Medicaid expansion.

While individual-market premiums have increased significantly in many states⁷ under the ACA, the uninsured rate has declined to record lows (Figure 1), and that decline has begun to plateau. With the individual mandate in place, some may wonder, “Why isn’t everyone covered?” or “With so few uninsured, why are premiums increasing?”

The ACA’s individual mandate was not strong enough to compel all eligible uninsured individuals to buy coverage. Policymakers could consider eliminating exemptions and loopholes, strengthening enforcement, and/or adding other continuous coverage provisions as options to increase participation.

Another feature of the ACA designed to maximize participation is Medicaid expansion. In 2012 the Supreme Court ruled that this expansion was optional for states,⁸ premiums rose in ACA markets.

According to the Internal Revenue Service (IRS), the uninsured population in 2015, based on tax filings received in 2016, is broken down into the following four categories, including individuals who made no election (no box checked) and other (Figure 2).

Penalties

The ACA states that individuals must make an individual shared responsibility payment (i.e., a penalty) if they do not have qualifying health insurance coverage for each month of the year or if they lack an exemption from the requirement to have coverage. The penalty is the greater of a flat dollar amount or a percentage of applicable income. Figure 3 outlines the penalties charged.

Figure 3: Penalties Charged for not Having Health Insurance

Because the penalty is paid when consumers file their federal tax returns, the law put the IRS in the role of enforcement. Every entity (including employers, insurers, and government programs) that provides minimum essential coverage to any individual must present a return to the IRS annually and a statement to the covered individual that includes information about the individual’s health insurance coverage.

In early January 2017, IRS Commissioner John Koskinen updated Congress about 2015 tax filings. He reported that 12.7 million taxpayers—out of 117 million tax returns processed for the 2015 tax year—claimed at least one exemption,⁹ as compared to the approximately 12.4 million taxpayers who reported one for tax year 2014.¹⁰ The 2015 taxpayers reported $3 billion in penalties. The average payment was about $470, and the median payment was about $330. This was about 0.5 percent¹¹ of the median household income in 2015.

It is worth noting there are practically no real consequences for not paying the penalty. If you do not pay, you will not go to jail or be levied for collection (these options were banned in the original law). You could have your tax refund seized or you might get a nasty letter from the IRS, but the existing law that is in place through the end of 2018 has little enforcement.

Exemptions

The ACA exempts:

• Individuals whose premiums exceed 8 percent of their household income.
• Individuals with incomes below the minimum threshold for filing a tax return.
• People experiencing certain hardships, including those who would have been eligible for Medicaid under the ACA’s health law’s new rules, but whose states chose not to expand their programs.
• Other groups, including prisoners, Native Americans eligible for care through the Indian Health Service, illegal immigrants, people whose religion objects to insurance coverage, members of a health care sharing ministry, and people who have a coverage gap of less than three consecutive months.

As seen in Figure 2, for the 2015 tax year, 12.7 million people, or 43 percent of the uninsured population, claimed one or more health care coverage exemptions. The most common exemption claimed was because household income or gross individual income was below the tax-filing threshold.

Alaska is an excellent example of the challenge of the affordability exemption because Alaskans are much more likely to be uninsured than most other Americans. Alaska has a relatively small population with some of the highest health care costs in the nation. Alaskans are precisely the sort of population the ACA was designed to serve by expanding coverage, expanding access to care, and making health care more affordable. But instead of proving the usefulness of health reform, the state’s health infrastructure is in trouble.

In 2015, only a handful of insurers remained in the Alaska market, and their premiums increased as much as 40 percent from 2015 to 2016. Most people who chose exchange plans were insulated from feeling premium increases because of tax-credit subsidies, but thousands more in Alaska don’t qualify for those subsidies and must pay the full costs.

Today, all insurers but one have left the Alaska market,¹² leaving Premera Blue Cross, which has suffered heavy losses, as the only remaining insurance option for Alaskans seeking coverage. The situation is much like what happened in New Jersey, where one insurer carries the burden of insuring the entire state.

Other Factors That Caused the Mandate to Underperform

Three other reasons the mandate underperformed cannot be easily quantified, but they certainly represent additional forces for consideration: loopholes, lack of enforcement and lack of awareness that the mandate even existed.

Loopholes

Until recently, public exchanges did not verify that consumers were eligible for certain special enrollment periods (SEPs). For example, an individual may attest that he or she recently moved into a new rating area, without having to show proof. This loophole allows consumers to enroll if they suddenly need health care by claiming a qualifying event (like a move) occurred.

Consumers also could qualify for an SEP for circumstances such as loss of health coverage, losing Medicaid eligibility, changes in family status (e.g., marriage or birth of a child), or other exceptional circumstances.

The ACA also includes a rule requiring carriers to pay for services for up to three months before they receive the first premium payment. This rule has allowed some patients to incur large claims, which their insurance plans covered during those three months, and then drop their plans. In December 2015, the Blue Cross Blue Shield Association submitted comments to the Centers for Medicaid & Medicare Services (CMS) stating: “Individuals enrolled through SEPs are utilizing up to 55 percent more services than their open enrollment counterparts, suggesting that SEP enrollees are sicker or waiting until they need care to enroll. SEP enrollees are also incurring costs in double digit magnitudes over the rest of the ACA risk pool.”¹³

Lack of Enforcement

In 2012, the Supreme Court upheld the individual mandate, understanding that Congress has the authority to regulate existing commercial activity, but it does not have the power to make people enter an activity.^14,15 The court also stated that the IRS would collect the “shared responsibility payment” as a tax. During this time, it became publicly known that those who did not pay their tax penalty to the IRS would “face no criminal penalties or threat of liens and seizures.”¹⁶ Without strict enforcement of the tax penalty, individuals could choose not to buy coverage.

Lack of Knowledge

As the October 2013 enrollment date approached, the individual mandate remained controversial as well as confusing. According to a Kaiser Family Foundation poll, 29 percent of Americans were not aware of the mandate or did not think the law included it.¹⁷ Because of this, fewer people enrolled.

Provisions Closely Related to the Mandate

Guaranteed Issue

The ACA banned health status underwriting and pre-existing condition exclusions as of 2014, creating a guaranteed-issue market. This means that insurance carriers cannot deny coverage or charge higher premiums for people with pre-existing conditions. Therefore, if an unhealthy individual applies for coverage, he or she receives coverage at the same premium as a healthy person.

This requirement works hand in hand with the individual mandate and a strict enrollment period. Permitting individuals to enroll in coverage regardless of their medical condition creates an opportunity for adverse selection. People might wait until they are sick or injured to buy coverage. Health insurance markets struggle fiscally if they only insure high-risk, high-cost individuals.

The public gives the ACA’s guaranteed-issue market requirement positive feedback. Additionally, the requirement promotes maximum participation. However, it does not promote affordability unless the healthy population also enrolls. Again, this is why the individual mandate, or another required-coverage mechanism, needs to be effective for the market to be successful, as Washington state’s history shows.

Medicaid Expansion

As originally written, the ACA was designed to provide a means for people to have access to affordable coverage. For the lowest-income individuals, Medicaid expansion was that means. The ACA required states to expand Medicaid eligibility to people with incomes at or below 138 percent of the Federal poverty level (FPL)—$27,821 for a family of three in 2016. However, in June 2012, the Supreme Court ruled that states could not be forced to expand Medicaid.

According to the Kaiser Family Foundation,¹⁸ 19 states have not expanded their programs. Medicaid eligibility for adults in non-expansion states is limited. Since Medicaid eligibility varies by state, we looked at median income as a proxy for eligibility. The median income limit for parents in 2016 was a FPL of 44 percent, or about $8,870 a year, for a family of three. In nearly all non-expansion states, childless adults remain ineligible. Unfortunately, because the ACA was written to provide low-income people coverage through the expansion of Medicaid, it does not provide subsidies to people below 100 percent FPL to improve the affordability of their other coverage options.

Figure 4 shows that up to one-third of the uninsured population would have been eligible for Medicaid coverage if all states had expanded. In 2016, more than 2.5 million low-income, uninsured adults fell into this coverage gap.

Adults in the coverage gap are concentrated in states with the largest uninsured populations. Figure 5 shows that 35 percent of the 2016 uninsured population resides in Texas, Florida, Georgia and North Carolina. Additionally, even though only 38 percent of states didn’t expand Medicaid, about 55 percent of the uninsured population lives in non-expansion states.

Medicaid expansion not only affected the uninsured population but also influenced premium rates, as seen in the issue brief from the Office of the Assistant Secretary for Planning and Evaluation (ASPE), titled “The Effect of Medicaid Expansion on Marketplace Premiums.”¹⁹ The report states: “Research suggests that Medicaid expansion may contribute to lower Marketplace premiums—one study found that Marketplace premiums are about 7 percent lower in expansion compared to non-expansion states. The study authors suggested that the difference in premiums reflects a difference in risk pool between expansion and non-expansion states, where individuals between 100 and 138 percent FPL make up a greater share of Marketplace enrollment in non-expansion compared to expansion states.”²⁰ If lower premiums are possible in states that expanded Medicaid eligibility, this would have increased accessibility and affordability in more states of the individual marketplace.

Changes to Continuous Coverage Provisions

Individual Mandate

The day he took office, President Donald Trump signed an executive order²¹ directing the Secretary of Health and Human Services and other federal officials to “the maximum extent permitted by law,” … “waive, defer, grant exemptions from, or delay” implementation of the law so it doesn’t “burden” individuals, families, states, health care providers, and insurers.²² For the 2017 and 2018 tax years, the IRS noted that taxpayers must still pay the mandate penalty, if applicable.

In December 2017, Congress voted to remove the penalties, effective in 2019, for not having minimum essential health coverage. While this is not a direct repeal of the individual mandate, it significantly weakens it, and some argue that this effectively repeals it. The tax bill did not address the guaranteed- issue requirement, leaving it intact. A weakened mandate, coupled with a guaranteed-issue requirement, can create an unstable market with decreased participation among healthy individuals and rising health insurance premiums. The Congressional Budget Office (CBO), in its release²³ about the changes, stated that the “number of people with health insurance would decrease by 4 million in 2019 and 13 million in 2027.” This is a significant number of people who would drop out of the individual and small-group markets. Furthermore, the CBO estimates that average premiums “would increase by about 10 percent in most years.” It is unclear yet whether the federal government will further address this.

Tightening Special Enrollment Periods

In February 2017, the Department of Health and Human Services issued a proposed²⁴ rule requiring additional documentation before people could sign up for individual health plans during a SEP. People will often wait until they need care before signing up, leading to higher average claims. Higher claims, in turn, lead to higher premiums. Tighter restrictions are expected to help control this type of anti-selection, allowing insurers to better manage affordability.

The Past is the Best Predictor of the Future?

Since President Trump’s election, multiple proposals to replace, change and repeal the ACA have been circulated. Several proposals address the actions we’ve discussed to maximize participation and manage affordability, including:

• Continuous coverage tools
  • Allowing carriers to include a surcharge to members with a gap in insurance coverage (such as 30 percent or more).
  • Allowing carriers to require a waiting period (such as six months) before allowing services to commence.
• Other levers
  • Reduce open enrollment to be every three years instead of annually.
  • Further tighten SEPs.
  • Requiring a waiting period (such as six months) for people who lost coverage through employment. COBRA would need to be exercised first.

These proposals provide a glimpse of future possible health reform efforts.

Striking the Right Balance

The goals of health care reform cannot be fully achieved by simply maximizing participation. Participation and affordability must be addressed simultaneously to have a viable market long term. Unlike the employer-group market, the individual market is not self-sustaining. The individual market requires adequate, predictable and stable external funding to keep premiums affordable.

Because the levers used to maximize participation, such as the individual mandate, appear to be exhausted or politically untenable, achieving affordability will require additional external funding. Additional funding will reduce premiums and encourage broad participation among healthy individuals. This positive spiral—reduced premiums increase participation of healthy individuals, which further reduces premiums—could be started several ways. Below are a few options that could be explored, some of which would require a change in the current laws:

• Allow consumers to choose from preselected essential health benefit requirements.
• Preserve Medicaid funding and eligibility.
• Establish reinsurance funds, like the 2014–2016 transitional reinsurance program.
• Offer a lower actuarial value plan, such as a copper plan. This would require CMS to update the Risk Adjustment program to maintain a level playing field.
• Strengthen continuous coverage requirements.
• Establish high-risk pools.
• Maintain or increase subsidy levels (premium tax credits and cost sharing reduction subsidies).
• Offer additional state-based subsidies for members not eligible for federal subsidies.
• Allow states to expand age rating requirements (back to 5 to 1).
• Promote and allocate funds for 1332 waivers.

There are numerous ways to manage affordability. Policymakers must assess the health care system to implement the best solution.

Conclusion

The ACA has yet to fully achieve its goal of increasing accessibility to affordable health care. No sweeping reform to change a complex health care system will be perfect the first time. We must assess the strengths and weaknesses of the various provisions and make changes over time, incorporating our learnings. A study of states that have embarked on health reforms on their own has shown there is no one-size-fits-all solution, and with every change come trade-offs.

The individual mandate is only one piece of the larger ACA puzzle. Policymakers must be mindful of the interdependencies among the pieces.

While promoting continuous coverage via the individual mandate or other options is an important consideration, improving affordability simultaneously is necessary to long-term market viability. Legislative options to study include strong incentives to reduce cost, promote participation and improve quality. The debate should be focused on the proper order of tackling these inter-connected challenges.