ACA Round-Up: Litigation Over Cost-Sharing Reductions And Reinsurance Fees, Tax Filings, And More

On May 30 the House of Representatives filed its response to the motion of attorneys general from 15 states and the District of Columbia asking that the stay in House v. Price be lifted and that they be allowed to intervene in the appeal. The federal government had filed its response on May 26.

In its short response to the states’ motion, the federal government simply asked that the case remain in abeyance and that the court not address the motion to intervene while negotiations continued with the House. The House, however, went further, also arguing that “it is entirely speculative whether the Administration will ever take a position in this litigation at odds with the States’ preferred position.” Moreover, the House argued, the administration could cease making cost-sharing reduction payments at any time regardless of the outcome of the appeal. The court could not compel it to do otherwise even if the states intervened—or to block a settlement at the states’ instance. For the same reason, the House argued, the court can do nothing to relieve the uncertainty pervading insurance markets while the case is pending. The House asked, therefore, that the abeyance not be lifted to hear the state’s motion.

Court Refuses To Rehear State Challenge To Reinsurance Fee Assessment

On May 26, 2017, the Sixth Circuit Court of Appeals refused to grant a rehearing by the entire circuit of a three-judge panel’s decision in Ohio v. United States. The panel rejected Ohio’s statutory and constitutional arguments contending that the ACA’s reinsurance fee could not be assessed against the state and its subdivisions.

IRS Releases Information on ACA-Related Filings For 2015

Finally, on May 30, 2017, the Internal Revenue Service released further information on ACA-related filings for 2015. During tax year 2015, 5 million returns were filed claiming premium tax credits of $18 billion; both increased 60.3 percent from 2014. About 5.7 million returns reported advance premium tax credits (APTC) on form 8962 (the tax form used for claiming tax credits), totaling about $20 billion (up 66.4 percent from 2014). About 2.3 million returns claimed $1.5 billion additional premium tax credits above those claimed in advance (up 48.2 percent), while 3.3 million returns required repayment of excess APTC of $2.6 billion (up 86.3 percent). Enrollment in the marketplaces increased by about 25 percent in 2015 over 2014, and enrollees became more experienced in filing 8962s, explaining much of the difference between 2014 and 2015.

The report also covers individual responsibility payments. About 6.6 million returns made an individual responsibility payment, down from 8 million in 2014. It is not clear whether more people got insured, claimed an exemption, or attempted to evade the penalty. Because the amount of the penalty increased for 2015, the average penalty per return increased, however, from $206 per tax return to $457, while total payments increased from $1.7 to $3 billion.

CMS Releases Information On FY 2018 Budget Request For Exchanges

The Centers for Medicare and Medicaid Services has released more detailed information on its fiscal year 2018 budget for exchange operations. The Trump administration has requested $471.1 million in discretionary budget authority for federal exchange operations. CMS additionally expects to collect $1.2 billion in user fee revenue to support Exchange operations for a total program budget level of $1.7 billion.

Of this amount, CMS expects to spend:

• $31.1 million for health plan bid review, oversight, and management;
• $32.9 million on payment and financial management functions, including management of the risk adjustment program;
• $321.6 million for eligibility and enrollment functions, including eligibility verification
• $573.5 million for consumer information and outreach, including the consumer call center (this includes funding for outreach, including the navigator and assister programs, although CMS states that it intends to rely more on agents and brokers and the states for outreach);
• $636 million for information technology services, including the data services hub, the Health Insurance Oversight System (HIOS) for oversight and plan management, the Federal health Care Exchanges Federal Health Care Exchanges (HIX), and the HealthCare.gov web portal;
• $4 million for exchange quality functions, including star rating and enrollee satisfaction ratings;
• $11.5 million for the SHOP program;
• $9.3 million for program integrity and other exchange functions; and,
• $73.8 million for administrative activities.

Fifth Circuit Issues Orders In Risk Corridor Cases

The Court of Appeals for the Federal Circuit has allowed the House of Representatives to file an amicus brief in the Land of Lincoln risk corridor appeal over the plaintiff’s objection. The appellate court further ordered, over the government’s objection, that appeals from the Moda and Land of Lincoln court of claims decisions, which reached opposite conclusions as to the ability of insurers to sue the federal government for funds they were not paid under the risk corridor program, be heard by the same appellate panel.

CMS Again Defers Enforcement Of 90 Days’ Termination Notice

The guaranteed renewability provision of the Public Health Services Act requires health insurers to give their enrollees 90 days’ notice before the termination of an insurance product. This notice gives consumers time to find a replacement product. For 2015, 2016, and 2017, however, HHS elected not to enforce this requirement against individual market insurers because the timeline for individual market product approval made 90 days’ notice before the start of open enrollment unrealistic.

CMS announced on June 1 that it will pursue the same policy again for 2018 as the timeline for individual market product approval again runs close to the start of the individual market enrollment period. Insurers must give product discontinuation notices no later than the dates that renewal notices are due—before the first day of the open enrollment period for non-grandfathered, non-transitional products and at least 60 days before the date of renewal for grandfathered and transitional products. States are encouraged to take the same approach.

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