Healthcare Law -- May 21, 2013

by Manatt, Phelps & Phillips, LLP

In This Issue:

Clearing up the Rumors around Health Reform Delays: What Really Happened, What Won’t and Steps Employers and Insurers Can Take Now

Rumors are flying in health policy circles that the Obama Administration might delay implementation of the Affordable Care Act (ACA). Some worry there may not be time to get the ACA entirely stood up by October 1—the date enrollment in qualified health plans (QHPs) is scheduled to begin through new Health Insurance Exchanges. The truth is, however, that significant new delays are unlikely.

The Department of Health and Human Services (HHS) already has delayed by a year a key aspect of the Small Business Health Options Program (SHOP)—the feature that would permit employees of small employers to choose among qualified health plans—in the states where HHS is administering SHOP. (As a reminder, under the ACA, small employers are defined as those with fewer than 50 employees.) The decision to delay SHOP seems to be the point at which HHS evaluated whether it would be able to have all ACA components functioning this year and decided where it should cut its losses.

HHS and the states have an ambitious schedule the remainder of this year to approve health plans under new ACA regulations, expand Medicaid, and alert consumers about their new coverage options. HHS has made some minor concessions in timing. For example, it gave insurers three extra days to submit plans for approval to participate in the federally-administered Exchanges—extending the deadline from April 30 to May 3. Further delays in implementation are likely to be of similarly short duration—on the order of days or weeks, not months or years.

The One Delay Exception: Holding onto Lower Rates as Long as Possible

There is one exception to the statement that further delays are unlikely—and it’s driven by employers and insurers rather than HHS or the states. In many cases, premiums for policies issued under the new rules may be more expensive than the policies individuals and employers currently hold, because the new policies will offer more comprehensive coverage and will not exclude individuals with chronic conditions. Employers, insurers and their consultants are evaluating how to keep the lower rates they currently have as long as possible. In their search for a way to keep costs down, they have latched on to the fact that the new rules don’t become effective precisely on January 1, 2014. Instead, for individual and small employer health insurance plans, the new rules become effective with the first policy renewal year that begins on or after January 1, 2014. That fact opens up some options for delaying rate hikes.

One strategy might be to renew policies in December 2013 and have a renewal year of thirteen months or longer. That could mean that the first policy year beginning after January 1, 2014 might be some time in 2015—or even later. This strategy is not likely to work. An existing HHS regulation generally requires that policy years be no more than twelve months. If an insurer did write a policy with extra-long “years,” the policy would likely become subject to the ACA rules on January 1, 2014—or on the date the employer’s tax year starts in the small group market.

Insurers could, however, renew policies in December 2013—even as late as December 31, 2013—for a twelve-month period. That would enable them to lock-in 2013 rates for their customers for almost all of 2014. This approach may benefit existing customers, who are generally healthier than the uninsured population and therefore could pay lower premiums now than they would under the 2014 rating rules. But there is a downside. It could damage the risk pool of the insurance market in 2014, by keeping healthier individuals in a separate risk pool for almost the full year.

How Are Regulators Reacting?

The regulatory reaction to renewing policies in December to lock in lower rates is uncertain. HHS recently suggested to insurers that they tell their enrollees about the availability of Health Insurance Exchange coverage when they renew policies—even when renewals are in 2013. The suggestion from HHS reflects some federal concern that insurers may steer individuals to particular products based on their health status. HHS may not feel it has the authority to take further action, however.

State reactions are mixed. Some state regulators are effectively prohibiting late 2013 renewals by requiring 2014 renewals to occur in the first half of 2014. Other states—particularly those generally opposed to the ACA—are encouraging insurers to preserve lower prices by offering the late 2013 renewals.

Individuals and small employers may want to wait until the fall to decide whether to renew their policies in 2013. By that time, they will be able to see what products and prices are available in the Exchanges and compare them to their current coverage. Price may not be the only deciding factor. Even more expensive products may be attractive if they cover pre-existing conditions or include other benefits not available in current coverage.

Insurers, on the other hand, may want to preserve their existing enrollment as much as regulators permit. Therefore, they should consider the implications of offering December renewals to their current customers.

NOTE: To assist you in navigating today’s volatile healthcare environment, Manatt Health Solutions (MHS) is offering a series of analyses, fully explaining each new guidance and its implications. The analyses provide concise and informative summaries, including relevant timelines, operational details and responsibilities, so you can respond effectively. To learn more about how you can benefit from our ACA Guidance Packages, please email Michael Kolber at

Update on the Exchanges: One-Stop Shopping for Health Insurance

NOTE: The following article is the third of Manatt's three-part series, “Employer Responsibility for Health Coverage: Are You Ready for 2014?” This month, we take a close-up look at Exchanges and how they are going to work. The series is based on our recent webinar that provided a detailed view of employer options and obligations under the Affordable Care Act (ACA). To view the webinar free—or to download a hard copy of the webinar presentations--click here.

Did you miss parts one and two of our series? Click here to read the first ACA article and here to read the second.  

Exchanges are designed to make insurance options much more understandable. Both public and private Exchanges follow the same four-step process:

  • Apply for coverage. Consumers can choose to go directly to the web page and get through the process without any assistance…call a phone number and reach a navigator to guide them through their options…or even walk into an Exchange location to get in-person support. In all cases, the process will be enabled by web technology, since both consumers and those who assist them will be using the Exchange web portal. For those in public Exchanges, the first step is to determine if they are eligible for some type of subsidy. Those whose incomes are up to 138% of the federal poverty level (FPL) qualify for Medicaid coverage. Those with incomes higher than 138% but less than 400% of the poverty level are eligible for tax subsidies. Of course, consumers still can choose to buy coverage through an Exchange, even if they are not eligible for subsidies. Qualified Health Plans will be available to individuals and small employers in the Exchange.

    For employees enrolling in group coverage, the same kind of web experience will become increasingly common as employers expand their use of private Exchanges. In private Exchanges, a defined contribution from the employer will take the place of tax credits or Medicaid. In both public and private Exchanges, consumers will bring a contribution or subsidy to the market and use that support, combined with their own money in most cases, to access coverage.
  • Choose a health plan. This is not an entirely new process. Many large employers now offer their employees choices—and often present those options via the web. What will be different for most people—in the public Exchanges, as well as some private Exchanges—is that they first must select a metal level. Platinum, at the top end of the scale, covers 90% of the actuarial value of benefits. Gold covers 80%, silver 70% and bronze 60% of the actuarial value. Catastrophic coverage—a high-deductible plan—is also available for people up to age 30 or exempted from the mandate to purchase health insurance.
  • Enroll in a health plan. Once consumers have chosen a metal level, they can get to insurers’ product information, see their options and enroll in the plan of their choice.
  • Get insured. Most often, consumers are enrolled in their plan on the same day they choose it, though coverage may not take effect immediately.

How Are Premium Tax Credits and Cost-Sharing Reductions Calculated?

Subsidies or tax credits vary tremendously, based on the consumer’s income. Those making the least—up to 138% of FPL—pay only 2% of their income toward their own insurance, which comes out to just a few hundred dollars per year. Those making the most—up to 400% of FPL—are still eligible for a subsidy but must pay 9.5% of their income toward their policy. (To put things in perspective, 400% of FPL for a family of four is approaching $100,000.) Basically, it’s a sliding scale, with people paying anywhere from a couple of hundred dollars to nearly $10,000 per year.

Those with low incomes also receive cost-sharing support. For those with incomes from 100% - 200% of FPL, the reduction in out-of-pocket liability is two-thirds of the maximum. Those with incomes from 200% - 300% of FPL have a one-half reduction.

Exchange Options for States

There are three basic public Exchange options: state-based Exchanges…state-partnership Exchanges …and federally-facilitated Exchanges. In reality, each of these models includes both federal and state components and responsibilities. For example, even in a state-based Exchange, the federal government serves as the data hub and is responsible for risk adjustment (with the exception of Massachusetts). On the other end of the spectrum, even in federally-run Exchanges, states are responsible for licensing companies, reviewing rates and forms, handling consumer complaints and monitoring market conduct. In fact, states retain those four core responsibilities under every model.

For year one, 16 states plus Washington, D.C. remain on the path toward state-based Exchanges, with some of them likely to need federal assistance with eligibility and enrollment. With Utah recently switching to a state partnership Exchange, there are now eight states pursuing the partnership path. The Utah partnership is unique in having Utah run the small business or SHOP Exchange, while the federal government runs the individual Exchange. That leaves 26 states that have defaulted or decided to go with federally-run Exchanges. Interestingly the state-based Exchanges seem to be clustered on the west coast and in New England.

A Spectrum of Exchange Visions, from Highly Regulated to Market Oriented

Among the states choosing to operate their own Exchanges, there is a continuum of visions—from highly regulated to market driven. Below are some examples of different approaches, ranging from Vermont with the most regulated viewpoint to Utah, which hopes ultimately to make its Exchange a completely private market phenomenon:

  • Vermont plans to evolve its Exchange toward a single payer system that is the only player in the market.
  • California and New York are focused on standardizing their benefit plans.
  • Oregon intends to integrate its Exchange and Medicaid strategies through comprehensive community care organizations.
  • Maryland will have a clearinghouse Exchange, requiring all carriers in the individual and small group markets to participate.
  • Massachusetts has never excluded a carrier but still struggles with small business and non-subsidized enrollment.
  • Minnesota is emphasizing quality, with plans to seek an innovation waiver that would allow it to vary subsidies based on performance across key quality measures.
  • Idaho and Nevada want to run lean and mean, operating clearinghouse Exchanges with as little regulation as the federal government will allow.
  • Utah operates a clearinghouse Exchange, which it hopes eventually to privatize.

Private Exchanges Are in Vogue

If imitation is the sincerest form of flattery, the public Exchanges will be getting a big boost from private Exchanges, which are likely to proliferate, especially in the large-group market. Some of the nation’s leading brokers—including Aon Hewitt, Mercer and Towers Watson—are targeting the large group market (1,000 or more employees) to expand the multi-insurer Exchange marketplace using a defined contribution model. The major national insurers are participating in one or more private Exchanges. Over the next decade, the private Exchanges are likely to enroll more consumers than the public Exchanges, given that the large group market is several times bigger than the individual and small group markets.

The largest insurers also are developing the capacity to offer large and small employers a single insurer private Exchange option in which employees pick from a wide array of products offered by one insurer. The Blue Cross and Blue Shield companies are leaders in this field with the Bloom Exchange, which is owned by several of the Blues. There also are regional private Exchanges—such as Liaizon—and even state-based private Exchanges that may compete with the public Exchanges for small group business.

Finally, there are private Exchanges that are focused on the individual market. eHealthInsurance is the current leader in the multi-insurer, direct-to-consumer private Exchange market, licensed in all 50 states and offering more than 10,000 products from 180 insurers. is another example, offering 6,000 products from 49 insurers and serving as a vendor to the California public Exchange.

Public Exchanges will dominate in the individual market, because they are the only ones that can determine eligibility for subsidies. There is a little known provision in the regulations, however, that allows private Exchanges (called “web brokers” in the regulations) to partner with public Exchanges and help enroll subsidy-eligible individuals through a back office connection to the public Exchange. A similar arrangement was recently announced with insurer-based web sites to help maximize the points of entry for consumers. Partnerships with private Exchanges are at the discretion of each state, so it remains to be seen how widespread the use of this option will be in 2014.

Although public Exchanges are grabbing the bulk of attention today, private Exchanges will play a major role in developing the consumer-facing tools necessary to give people the simple, seamless, Amazon-like experience that is the goal of all Exchanges. None of the Exchanges will reach that objective in 2014, but as the market evolves in that direction, we all will wonder how we ever tolerated such an opaque health insurance market.

How Will Employers Respond to Exchanges?

McKinsey made headlines last year with a study saying that as many as 30% of employers would drop coverage once the ACA takes hold. After a barrage of criticism, McKinsey stepped back from its findings. In fact, the majority of studies show that—particularly for medium- and large-size organizations—there will be very little change in employer-sponsored insurance (ESI) over the next few years. Even in the small-group category, an Urban Institute estimate shows very little movement.

Perhaps the best way to anticipate what will happen is to look at the experience of Massachusetts—the one state that has had an Exchange up for several years. The number of Massachusetts firms offering coverage actually increased by 6% between 2007 and 2008, with a 4% increase for small firms. The Massachusetts example indicates that ESI is likely to remain steady—and perhaps even grow—at least in the near future.

Join Us for a NEW Executive Briefing June 11 in New York and San Francisco: Navigating the New Risk Environment

Breakthrough Technologies Are Changing the Face of Healthcare—but Increasing Privacy and Security Risks. How Can You Prepare and Protect Your Organization?

From electronic medical records to mHealth, technology advances are improving healthcare quality and efficiency. But they also are increasing privacy and security risks—and driving new regulations and stricter government enforcement. How can you prepare and protect your organization? Find out at Navigating the New Risk Environment: Monitoring the Trends, Mastering the Rules and Mitigating the Challenges. Jointly led by the privacy and security leaders at Manatt and Deloitte, this interactive session will answer your key questions around the latest developments—and the responses you should be putting in place:

  • What are the latest trends in government enforcement–and what can you learn from recent actions?
  • What are the leading practices for dealing with audits and investigations?
  • What industry standards are emerging regarding compliance with the security rules?
  • How can you assess—and mitigate—your risk?
  • Where do security and meaningful use intersect?
  • What plans, strategies and tactics are critical for protecting your organization?

Please join us on June 11 for this compelling session that will include both educational presentations and the opportunity to ask questions, examine issues and learn from your peers. To ensure active participation and dynamic discussions, we are limiting attendance. So please be sure to register now. Click here to reserve your place at Navigating the New Risk Environment.

Robert Belfort, Partner, Manatt, Phelps & Phillips, LLP 
John Valenta, Director, Deloitte & Touche LLP
Karolyn Woo, Senior Manager, Deloitte & Touche LLP 

Date and Time:
Tuesday, June 11

In San Francisco:
Registration and breakfast—8:30 – 9:00 a.m.
Program—9:00 – 11:00 a.m.

In New York:
Registration and lunch—11:30 a.m. – 12:00 p.m.
Program—12:00 p.m. – 2:00 p.m.

Two Locations:
Manatt Offices
One Embarcadero Center, 30th Floor
San Francisco, CA 94111
Manatt Offices
7 Times Square, 23rd Floor
New York, NY 10036

Click here to register now.

NOTE: Navigating the New Risk Environment is a complimentary program.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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