Insurers Score Another Risk Corridor Win; New Guidance On Consumer Assister Training

On August 4, 2017, judgment was awarded for another insurer in a risk corridor case in the Court of Federal Claims, this time for Molina for $52.4 million. Molina’s win means that insurers have now prevailed on the merits in two of the 26 risk corridor cases pending in the Court of Claims while the government has prevailed in three.

Judge Thomas Wheeler, who ruled in favor of Molina, was also the author of the Moda decision, the only other risk corridor decision to date in favor of an insurer. Not surprisingly, he followed his earlier decision.

Judge Wheeler held that the Affordable Care Act requires the government to make risk corridor payments to insurers that qualify for those payments under the statute’s payment formula, even though Congress did not specifically appropriate funds for this purpose. He also held that the government had entered into an implied contract when if offered to cover Molina’s losses under the risk corridor program if it sold qualified health plans, and Molina had sold QHPs and suffered losses. He further held that the 2015 and 2016 appropriations riders that sought to bar the use of CMS program management funds failed to repeal the government’s obligation, because a statutory obligation cannot be repealed through an appropriations rider unless the rider is clear and unambiguous in its intention to repeal and the 2015 and 2016 riders did not meet this test.

Judge Wheeler explicitly rejected the holding of another Court of Claims judge to the contrary in the Maine Community Health Options case. Congress has appropriated money for the judgment fund, Judge Wheeler held, and this money is available to fund the government’s obligations under the risk corridor program. He did reject Molina’s express contract and constitutional takings clause claims.

The Federal Circuit Court of Appeals is now considering appeals in at least two of the risk corridor cases — Moda, which was won by the insurers, and Land of Lincoln, won by the government. Its rulings in these cases may definitively settle the risk corridor claim issue.

New Guidance On Navigator And CAC Training

On August 4, 2017, the Centers for Medicare and Medicaid Services released a Guidance Regarding Training, Certification, and Recertification for Navigators and Certified Application Counsellors (CACs) in the Federally Facilitated Marketplaces (FFM). Navigators who were certified for 2016-2017 and who remain with the same organization need merely complete a refresher course, covering operational updates for 2018 and modules on privacy, security, and fraud prevention; coverage to care assistance; and assister standard operating procedures. New navigators, navigators who have been decertified, and navigators who have changed organizations must take the entire training module. Navigators must also meet other certification or licensure requirements.

CACs must complete CAC training and be recertified annually by their CAC Designated Organizations (CDO). There is no abbreviated training program for returning CACs, but the CAC training program is about half the length of the navigator training program. CDOs are not required to enter into new agreements with the FFM or with their CACs each year.

The navigator training program features new elements for 2018, including virtual simulations that illustrate marketplace application and enrollment processes in the FFM and new coverage-to-care and assister-standard-operating-procedure modules. The new CAC program will also include virtual simulations and the coverage to care module, but will no longer include a SHOP marketplace assistance module. CACs will have access to the full navigator training course.

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